P. v. Downs
Filed 6/17/13 P. v. Downs
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DESMONE DOWNS,
Defendant
and Appellant.
E055378
(Super.Ct.No.
FVA1001773)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. Cara
D. Hutson, Judge. Reversed.
Lynda
A. Romero, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Michael P. Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and
appellant Desmone Downs of first degree
murder (count 1—Pen. Code § 187, subd. (a))
subd. (a)). The jury additionally found
true allegations that in defendant’s commission of the count 1 offense he
personally used a handgun (§ 12022.53, subd. (b)); personally and
intentionally discharged a handgun (§ 12022.53, subd. (c)); personally and
intentionally discharged a handgun causing great bodily injury and death (§
12022.53, subd. (d)); and did so for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)). The trial court sentenced defendant to an
indeterminate term of incarceration of 50 years to life.
On
appeal defendant raises eight contentions:
(1) insufficient evidence supported the jury’s conviction of defendant
in count 2; (2) the court erred in admitting evidence of defendant’s prior
conviction for evading police; (3) the court erred in instructing the jury it
could consider evidence of defendant’s prior offense to prove the primary
activities of defendant’s gang in the count 2 offense and the gang enhancement
attached to count 1; (4) defense counsel below committed constitutionally
prejudicial ineffective assistance of counsel (IAC); (5) the expert gang witness
improperly expressed an opinion on defendant’s guilt; (6) the errors resulted
in cumulative prejudice to defendant; (7) insufficient evidence supported
the jury’s true finding on the gang enhancement attached to count 1; and (8)
insufficient evidence supports his conviction on count 1 because no evidence
was adduced that he was the perpetrator.
We
hold that, pursuant to the California Supreme Court’s decision in
1125 (Rodriguez), which postdated
briefing in this matter, insufficient evidence supported defendant’s conviction
in count 2. We will therefore reverse
defendant’s conviction in count 2.
We
further hold the court erred in admitting evidence of defendant’s prior
conviction for evading the police and in instructing the jury it could use that
evidence to support the primary activities prong of the count 2 offense and the
gang enhancement attached to count one.
Moreover, we hold defense counsel below rendered ineffective assistance
of counsel in neglecting to request sanitization of the evidence used to prove
defendant’s prior conviction, redaction of prejudicial information in the video
recording of defendant’s interview played to the jury, and in not requesting a
limiting instruction as to how the jury could use such evidence. Furthermore, we hold the expert gang witness
improperly expressed an opinion as to defendant’s guilt. Although no one of the above enumerated
errors may have prejudiced defendant, we hold that the cumulative nature of the
errors resulted in reversible error. Therefore, we will reverse and remand the
judgment with respect to count 1 and the attached enhancements.
On
November 6, 2010, Ikea Williams had a party at her house, which began at 8:30
p.m. She testified that between 90 to
100 people were in attendance. At some
point while she was in the kitchen, she heard a gunshot; people began running
and yelling; she ran too.
Christina
Hambrick and Keyoshia Hollis testified they went to the party together. They met up with the victim, with whom they
spent most of the night.
At
some point, Hambrick saw the victim arguing with another man; she separated
them from each other, pushing them apart.
Hambrick described the man as short, five foot one or two; skinny with a
fade haircut; light to caramel complected, and wearing a baggy blue jacket with
a logo.
gang signs and was saying “‘Five Times, Five Times.’â€
Hambrick
led the victim to the front yard so they could call to have someone pick him
up. The individual with whom the victim
had argued was already out in front of the house. That individual kept staring at them. Hambrick told the victim they should move
into the house. They went into the
living room where they sat on a small couch with the victim between Hambrick
and Hollis. Hambrick called someone to
pick up the victim.
Hambrick
went to use the restroom. When she
returned she saw the same individual arguing with the victim again. Hollis testified she saw the victim arguing
with someone too;
title="">[3] the other individual was “banging Five Timeâ€;
he made hand gestures. Hambrick broke it
up again. Thereafter, Hambrick’s phone
rang; she got up and walked away to answer it.
She then heard a gunshot;
name="_ftnref4" title="">[4] everyone started running; she ran too. Hollis testified she was sitting next to the
victim on the couch when he was shot; she heard the gunshot and saw the muzzle
flash from the side of the couch. The
victim died from a gunshot wound to the head.
Hollis
described the individual with whom the victim argued as short, brown skinned,
with a fade haircut, and wearing a blue or black jacket. Hambrick identified defendant as the
individual with whom the victim argued from a six-pack photographic lineup and
a video when interviewed later by the police.
Hollis identified defendant as the individual with whom the victim was
arguing from a six pack photographic lineup thereafter.
Detective
Rory Scalf was assigned to investigate the shooting. Hollis informed him the victim was affiliated
with Nutty Blocc or the Blocc Boyz gangs in Rialto. Detective Paul Stella obtained video
surveillance from the night of the shooting from a nearby liquor store; the
video was played to the jury. Williams
identified defendant from the video; she told him defendant was at the
party.
Detective
Scalf interviewed defendant on November 12, 2010. The People played a video recording of the
interview at trial. In it, defendant
initially denied going to the liquor store until Detective Scalf informed him
they had him on video. Defendant then
admitted going to the store, but insisted he walked there; however, Detective
Scalf then informed him the video showed him arriving in a car. Defendant then maintained he went to the
store in an Impala; however the video reflects defendant arrived in a
Honda. Defendant denied going to the
party.
Sergeant
Travis Walker of the San Bernardino Police Department testified as the People’s
expert gang witness. He testified “Five
Time Hometown Crips†(5x) is a criminal street gang in the City of San
Bernardino. Its common signs or symbols
are “5x,†“Vâ€; and “2600†or “2700,†reflecting the street addresses where the
gang is based. Antoine Briggs, a member
of 5x, had a prior conviction for carrying a concealed firearm and possession
of ammunition by a prohibited person.
Kevin Radford, another member of 5x, had a prior conviction for grand
theft auto.
Sergeant
Walker testified defendant is a member of 5x.
Seven field interrogation (FI) cards on defendant dated November 18,
2006; January 6, 2007; February 16, 2007; May 8, 2007; February 23, 2009; April
11, 2009; and April 15, 2010, reflected defendant was a self admitted member of
5x. Defendant had tattoos reading “2700,†“HT,†“5,†and one with five
dots. Defendant admitted gang monikers
of “Lil Loc†and “Lil Dezâ€; he had tattoos of the words “LIL†and “LOC.†Attached to one FI card was a picture of
defendant throwing a 5x gang hand sign.
During encounters with law enforcement, defendant was accompanied by
Danny Louie, Ricky Johnson and Dalray Andrew, all members of 5x. On another he was with Danny Louie only.
Sergeant
Walker determined from interviews that the victim was possibly affiliated with
the Nutty Blocc and Blocc Boyz gangs in Rialto.
He testified there was a long standing feud between 5x and Crip gangs in
Rialto, including Blocc Boyz. Armando
Simmons, the victim’s brother, was a suspect in the shooting of 5x member Danny
Louie. From all this information,
Sergeant Walker concluded, “the murder of the victim in this case was at the
direction of, in association with, or for the benefit of the furtherance of
Five Time Hometown Crips criminal street gang activity.â€
A. INSUFFICIENCY OF THE EVIDENCE TO
SUPPORT CONVICTION FOR THE SUBSTANTIVE GANG OFFENSE IN COUNT 2
“‘In
reviewing a challenge to the sufficiency
of the evidence, we do not
determine the facts ourselves. Rather,
we “examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence
that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.†[Citations.]
We presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.]
[¶] The same standard of review
applies to cases in which the prosecution relies primarily on
“[I]f the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding.†[Citation.]
We do not reweigh evidence
or reevaluate a witness’s credibility.’
[Citation.]†(
1186, 1215.)
Section
186.22, subdivision (a) states, “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 . . .
.†In
Rodriguez, supra, 55 Cal.4th
1125, the California Supreme Court recently held that “section 186.22(a)
reflects the Legislature’s carefully structured endeavor to punish active
participants for commission of criminal acts done collectively with gang
members.†(Id. at p. 1139.) Thus, the
court concluded that a gang member who commits an offense alone, whether gang
related or not, is not in violation of section 186.22, subdivision (a). (Ibid.)
Here,
there was no evidence defendant committed murder collectively with any other
gang member. Although all the evidence
implicating defendant as the perpetrator of the shooting was circumstantial and
inferential, it all indicated to the extent he committed the murder, he did so
alone. Thus, Rodriguez compels the reversal of defendant’s conviction for active
gang participation in count 2.
B. ADMISSION OF DEFENDANT’S PRIOR
CONVICTION FOR EVADING ARREST
Defendant
maintains the court erred in admitting evidence of defendant’s prior conviction
for evading police because it is not one of the enumerated qualifying predicate
offenses in Penal Code section 186.22, subdivision (e). The People concede defendant’s prior
conviction is not a qualifying predicate offense; however, they argue evidence
of the conviction was nonetheless admissible under an Evidence Code section
1101, subdivision (b) analysis to show motive and gang affiliation. In any event, the People argue its admission
was harmless. We agree with the People
that, standing alone, evidence of defendant’s conviction for evading arrest was
probably harmless; however, combined with the manner of its presentation,
discussed below, as well as other errors, we hold the errors were cumulatively
prejudicial.
The People
indicated below they intended to use defendant’s conviction for evading police
“to show a pattern of gang activity for the gang allegation†pursuant to
Defendant’s prior conviction also involved the admission of the truth of
an attached gang enhancement allegation.
Defense counsel objected to the People’s use of defendant’s evading
conviction. Even if admitted, defense
counsel requested evidence of the prior conviction be limited, i.e., that the
circumstances and facts of the case be omitted.
The court ruled that pursuant to Tran,
it would allow evidence of defendant’s prior conviction to prove the requisite
predicate offenses: “I believe if you’re
using it as a predicate, that the facts behind the prior won’t be relevant in
any instance. It’s just the fact of
conviction, the actual crime that will be in one of the enumerated statutes,
and the date of offense.†The court
additionally determined, “the probative value of this particular prior
conviction outweighs its prejudicial effect and will allow [the People] to
present [defendant’s] prior conviction . . . that’s gang related as a predicate
offense.â€
1. STATUTORY
ADMISSIBILITY OF DEFENDANT’S PRIOR CONVICTION
The
California Street Terrorism Enforcement and Prevention Act (the STEP Act;
§ 186.20 et seq.) criminalizes active participation in a
criminal street gang and the commission of other crimes for the benefit of, at
the direction of, or in association with a criminal street gang. (§ 186.22, subds. (a) & (b).) “A criminal street gang is any ongoing
association that has as one of its primary activities the commission of certain
criminal offenses and engages through its members in a ‘pattern of criminal
gang activity.’ [Citations.] A pattern of criminal gang activity is ‘the
commission of, attempted commission of, conspiracy to commit, or solicitation
of, sustained juvenile petition for, or conviction of two or more’ specified
criminal offenses within a certain time frame, ‘on separate occasions, or by
two or more persons’ (the ‘predicate offenses’). [Citations.]â€
(Tran, supra, 51 Cal.4th at p. 1044.)
Both the current effective version and prior versions of section 186.22,
subdivision (e) list a number of specific offenses which qualify as predicate
offenses.
We
typically review the admission of evidence for abuse of discretion (
statutory construction, i.e., whether section 186.22, subdivision (e) permits
admission of prior convictions, which are not therein enumerated. As such, we review the issue de novo. (Apple
Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.)
Here,
as defendant maintains and the People concede, a conviction for evading police
is not now, nor never has been a qualifying predicate offense for purpose of
proving a substantive offense of active gang participation (§ 186.22, subd.
(a)) or the enhancement allegation of committing another offense for the
benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)). (§ 186.22,
subd. (e).) In Tran, supra, 51 Cal.4th
1040, the basis upon which the trial court permitted evidence of defendant’s
prior conviction in this case, the court held that evidence of a defendant’s
prior conviction of a predicate offense is admissible even if the People could
develop evidence of the requisite number of predicate offenses through the
presentation of other gang members’ convictions. (Id.
at p. 1044.) However,
proposition that a defendant’s prior non-qualifying
conviction may be admitted to prove the predicate offenses prong. Thus, the court erred in admitting evidence
of defendant’s prior conviction for evading police.
2. FORFEITURE
The
People argue that, notwithstanding the error, the evidence would have been
admissible pursuant to an Evidence Code section 1101, subdivision (b) analysis,
an argument never made by the People below.
(People v. Jones (2012) 54
Cal.4th 1, 50 [“[A] ruling or decision,
itself correct
in law,
will not be disturbed
on appeal
merely because given for a wrong reason. If right upon any
theory of the law applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its conclusionâ€].) The People maintain defendant’s prior
conviction would have been permissible pursuant to such an analysis in order to
prove both motive and defendant’s gang affiliation. We disagree.
First,
we hold the People forfeited any contention the prior conviction was
theory of admissibility below. (See
Cal.4th 1205, 1226, fn. 17 [a determination of factual evidentiary
admissibility must first be made in the trial court which must undertake an
analysis of the evidence proffered. An
appellate court cannot conduct such an analysis in the first instance];
889, fn. 7 (Clark) [claims regarding
the factual admissibility of evidence are forfeited unless it required no
action below by the party proposing it or “the new arguments do not invoke
facts or legal standards different from those the trial courts was asked to
applyâ€]; People v. Williams (2008) 43
Cal.4th 584, 624-625 [Factual evidentiary claims must first be made in the
trial court so that the other party is given an opportunity to respond and the
trial court can take steps to prevent any error. A party forfeits a claim where he asks a
reviewing court to interpret and apply the law to the facts despite “the circumstance that there is a critical factual
dispute that the trial court never was asked to explore or resolveâ€];
1302, 1330, overruled on another point in Johnson
v. California (2005) 545 U.S. 162 [“‘The general rule confining the parties
on appeal
to the theory
advanced below is based on the rationale that the opposing party should not be
required to defend for the first time on appeal against a new theory that “contemplates a factual
situation
are open to controversy
and were not put in issue or presented’†below]; People v. Moses (1990) 217 Cal.App.3d 1245, 1252 [“‘It is
elementary that a new theory cannot be raised on appeal where, as here, the
theory contemplates factual situations the consequences of which are open to
controversy and were not put in issue in the lower courtâ€].)
Here,
although the court conducted an Evidence Code section 352 analysis with respect
to the admissibility of defendant’s prior conviction, it did so only through
the purview of its determination of its statutory admissibility via Penal Code
section 186.22, subdivision (e) and Tran. Thus, the trial court had already determined
the prior conviction was statutorily admissible and only evaluated its
evidentiary admissibility from that perspective, i.e., whether even statutorily
admissible evidence would nonetheless be more prejudicial than probative. The court was never asked to and never did
conduct a pure analysis of the prior conviction’s factual evidentiary
admissibility separate and apart from its purported statutory
admissibility. Indeed, the reviewing
court in People v. Jones,
factual admissibility of certain evidence at that trial on an alternative
factual basis where the trial court had already made a factual evidentiary determination.
(Id. at pp. 49-51.)
We
are a reviewing court. To the extent we
could reach it, the People’s argument that the prior conviction would have been
admissible pursuant to Evidence Code section 1101, subdivision (b) would have
us “reviewing†a determination that was never made below. In other words, we would be conducting our
own independent evidentiary analysis rather than reviewing one conducted by the
trial court. Neither is this a situation
in which we could review the trial court’s ruling de novo because, as discussed
above, this is not a legal question.
Thus, the People forfeited the contention by failing to posit any
factual theory of evidentiary admissibility below.
3. FACTUAL
EVIDENTIARY ADMISSIBILITY OF DEFENDANT’S PRIOR CONVICTION PURSUANT TO EVIDENCE
CODE SECTION 1101, SUBDIVISION (B)
Nevertheless,
to the extent we could independently address the People’s argument, we would
find the evidence more prejudicial than probative. “With certain exceptions not relevant here,
Code section 1101, subdivision
(a), provides that ‘evidence of a person’s character’—whether in the form of an
opinion, evidence
of reputation, or evidence of specific instances of conduct—‘is inadmissible when
offered to prove [the person’s] conduct on a specified occasion.’ This prohibition, however, does not preclude
‘the admission of evidence that a person committed a crime, civil wrong, or other
act when relevant to prove some fact . . . other than [the person’s]
disposition to commit such an act,’ including ‘motive, opportunity, intent,
preparation, [or] plan.’ (
subd. (b).)†(People
v. Valdez (2012) 55 Cal.4th 82, 129.)
When
conducting an Evidence Code section 1101, subdivision (b) analysis, courts must
additionally determine that “the probative value of the proffered evidence [is]
not . . . substantially outweighed by the probability that its
admission would create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury. (
closer, with respect to its prejudicial consequences, to prohibited character
evidence than any other permitted use under Evidence Code section 1101,
subdivision (b). (People v. Gibson (1976) 56 Cal.App.3d 119, 129-130 [“In terms of
prejudicial consequence, there is very little difference . . . between
other-crimes evidence that is introduced to establish a defendant’s motive
and thence to the inference that the charged offense was committed by defendant
in accordance with such motiveâ€].)
Cumulative evidence may lack probative value and be regarded as more
prejudicial than probative if the subject matter is not reasonably subject to
dispute. (People v. Homick, supra,
55 Cal.4th at pp. 865-866; Tran,
857; People v. Cardenas (1982) 31
Cal.3d 897, 904.)
Here,
the People posit two theories for the admissibility of defendant’s prior
conviction pursuant to Evidence Code section 1101, subdivision (b): (1) to prove defendant’s motive in committing
the killing, revenge for the alleged shooting of defendant’s associate Danny
Louie by defendant’s brother, because the factual context of defendant’s arrest
for his prior conviction involved being in a car with Louie; and (2) to prove
defendant’s affiliation with 5x because defendant admitted a gang enhancement
attached to the offense.
However,
the People already adduced admissible evidence at trial showing that defendant
was connected with Louie, a 5x gang member:
the People introduced into evidence three FI cards dated May 8, 2007,
February 23, 2009, and April 11, 2009, reflecting law enforcement encounters in
which defendant was accompanied by Louie.
Indeed, the evidence used to prove defendant’s prior conviction only
tangentially connected defendant with Louie; only the complaint in the packet
submitted by the People to prove defendant’s prior conviction contains Louie’s
name. Louie’s name is listed in only two
places, one of which is blacked out; no other reference to Louie is made
throughout the entire packet or in the testimony of Sergeant Walker. Thus, the evidence of defendant’s prior
conviction was less probative of defendant’s association with Louie; was
cumulative of other, properly admitted evidence; and touched on defendant’s
motive, a basis more likely to involve prejudice. Therefore, we conclude the evidence of
defendant’s prior conviction was more prejudicial than probative on the matter
of defendant’s purported motive in committing the murder.
Similarly,
the People already had overwhelming evidence of defendant’s membership in
5x. The People introduced seven FI cards
signed by defendant over a period extending from November 18, 2006, to April
15, 2010, in all of which defendant admitted his membership in 5x. Defendant had multiple 5x gang tattoos
reading “5,†“2700,†and one with five dots.
Defendant had the gang monikers “Lil Loc†and “Lil Dezâ€; defendant had a
tattoo reading “LIL†and “LOC.†Law
enforcement had encountered defendant in association with three other members
of 5x. One of the FI cards had a picture
of defendant throwing a 5x gang hand sign.
Sergeant Walker testified he was familiar with defendant, having had
personal contact with him between five and six times; he testified defendant
was a member of 5x. Indeed, defendant’s
membership in 5x was not contested below.
Thus, while defendant’s prior conviction with an attached gang
enhancement was probative to establish his membership in 5x, it was also superfluous
for that purpose. Therefore, evidence of
his prior conviction was cumulative and more prejudicial than probative.
4. HARMLESS
ERROR
The
People contend that even if the admission of evidence of defendant’s prior
conviction was error, it was harmless. (
360, 388-389 [Admission of non-qualifying predicate offense of
harmless where the People adduced evidence of multiple qualifying offenses
committed by defendant and other gang members].) Here, the People introduced evidence of two
qualifying predicate offenses committed by other members of 5x. Moreover, even the charged offense may serve
as a predicate offense. (
v. Bragg (2008) 161 Cal.App.4th 1385, 1400; People v. Gardeley (1996) 14 Cal.4th 605, 625.) Thus, here the People adduced evidence of at
least three qualifying predicate offenses.
Under normal circumstances, we would conclude that the trial court’s
admission of defendant’s prior conviction here, in and of itself, would
constitute harmless error. However, as
we will discuss more fully below, we conclude the contents of the document
admitted to prove defendant’s prior conviction as well as other errors in this
case resulted in prejudicial cumulative error.
C. THE TRIAL COURT’S ERRONEOUS
INSTRUCTION OF THE JURY REGARDING DEFENDANT’S PRIOR CONVICTION FOR EVADING
POLICE
In
a matter related to that discussed above in section B, defendant contends the
court erred in instructing the jury it could consider defendant’s conviction
for evading as proof of one of the primary activities of 5x, another
prerequisite to finding the gang enhancement allegation attached to count 1
true and to finding defendant guilty of the count 2 offense. The People concede the trial court erred in
so instructing the jury, but maintain the error was harmless.
We
independently review claims of instructional error. (People
v. Manriquez (2005) 37 Cal.4th 547, 584.)
“When the jury is ‘misinstructed on an element of the offense . . .
reversal . . . is required unless we are able to conclude that the error was
harmless beyond a reasonable doubt.’
[Citations.]†(
333, 530.) However, where the erroneous
instruction relates particular facts to a legal issue in the case, reversal is
only required where it is reasonably probable a result more favorable to the
defendant would have been obtained in absence of the error. (Ibid.)
As
relevant to this issue, a criminal street gang, “means any ongoing
organization, association, or group of three or more persons . . . having as
one of its primary activities the commission of one or more†of the qualifying
offenses enumerated in section 186.22, subdivision (e). (§ 186.22, subd. (f).) “To establish . . . the nature of the gang’s
primary activities, the trier of fact may look to both the past and present
criminal activities of the gang.
[Citation.]†(
Cal.App.4th 605, 611.)
Here,
Sergeant Walker testified that a gang injunction had been obtained against 5x
“due to the level of violence and criminal activity†that it was causing in the
neighborhood. The People introduced
solid, unchallenged evidence of two prior offenses committed by two other 5x
gang members, Briggs and Radford; both of which qualified as predicate
offenses. (§ 186.22, subd. (e).) The time spent on introducing the predicate
offenses and laying the foundation for the exhibits in support of them was
minimal. Likewise, the time spent on defendant’s
predicate offense was no longer than that spent on Briggs’s and Radford’s. Similarly, the exhibit used to substantiate
defendant’s prior offense did not vary much in length or substance from those
supporting the others.
name="_ftnref6" title="">[6] Thus, we hold the error was, independently,
harmless beyond a reasonable doubt because jury must necessarily have found all
the prior offenses to be the primary activities of 5x when only one was
required.
D. IAC
Defendant
contends defense counsel below rendered prejudicially IAC on three bases: (1) by failing to request redaction of the
recorded interview of defendant in which there were numerous references to
defendant’s status as a probationer when he committed the instant crimes, in
which they discussed the presence of a gun in the car when defendant committed
the prior offense, and discussed his previous jail term; (2) by failing to
request redaction of the documentary evidence admitted to prove his prior
conviction, which contained references to the fact that defendant was
previously charged with possession of a firearm, references his sentence to
jail on the prior offense, references his status as a probationer, and
references he twice had his probation revoked; and (3) by failing to request an
instruction limiting the purposes for which the jury could use the evidence of
defendant’s prior conviction. The People
counter that defendant has failed to demonstrate deficient performance of
defense counsel below and that the mentions of defendant’s probation status and
prior charge of gun possession were too inconsequential to result in
prejudice. We agree with defendant.
“‘The
law governing defendant’s claim is settled.
“A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal
Constitutions. [Citations.] ‘Construed in light of its purpose, the right
entitles the defendant not to some bare assistance but rather to effective
assistance.’â€
[Citations.] It is defendant’s burden to demonstrate the
inadequacy of trial counsel. [Citation.] [The Court has] summarized defendant’s burden
as follows: “‘In order to demonstrate
of counsel,
a defendant must first show counsel’s performance was “deficient†because his “representation
fell below an objective
. . . under prevailing professional norms.†[Citations.]
Second, he must also show prejudice flowing from counsel’s performance or lack
Prejudice is shown when there is a “reasonable probability that, but for
counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.â€â€™â€ [Citation.]
[¶] Reviewing courts defer to
reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a
“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.â€
[Citation.] Defendant’s burden is
difficult to carry on direct appeal, as we have observed: “‘Reviewing courts will reverse convictions
[on direct appeal] on the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose
[his or her] act
or omission.’†[Citation.]’
why counsel
acted or failed
to act in
the manner
challenged[,]
unless counsel
was asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ the claim on appeal must be rejected,â€â€™ and the
‘claim of ineffective
assistance
in such a case is more appropriately decided in a habeas corpus
proceeding.’ [Citation.]â€
(People v. Vines,
1. SANITIZATION
OF THE VIDEO RECORDING OF THE INTERVIEW WITH DEFENDANT
Defense counsel
initially objected to the admission of any evidence of defendant’s prior
conviction; however, to the extent the court intended to admit such evidence,
defense counsel requested the court limit its use of the prior to the admission
of the gang enhancement allegation and omit evidence of the circumstances and
facts of the particular case. The court
ruled that admission of the prior conviction evidence would be admissible, but
“that the facts behind the prior won’t be relevant in any instance. It’s just the fact of conviction, the actual
crime that will be in one of the enumerated statues, and the date of offense.â€
“‘“Only
relevant
(Evid.Code, § 350; [citations]), . . . . “Relevant evidence is defined in
Code section 210 as evidence ‘having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the
tends ‘logically, naturally, and by reasonable inference’ to establish material
facts such as identity, intent, or motive.
[Citations.]†[Citation.]’†(People
v. Tully (2012) 54 Cal.4th 952, 1010.)
“Evidence
Code section 352 accords the
trial court broad discretion to exclude even relevant evidence ‘if its
value is substantially outweighed by the probability that its admission will .
. . create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ ‘Evidence is
substantially more prejudicial than probative [citation] if, broadly
stated, it poses an intolerable “risk to the fairness of the proceedings or the
reliability of the outcome†[citation].’
[Citation.] We review a trial
court’s ruling under Evidence Code section 352 for an abuse of discretion. [Citations.]â€
(Clark, supra, 52 Cal.4th at p. 893.)
“There is little doubt exposing
a jury to a defendant’s prior criminality presents the possibility of
prejudicing a defendant’s case and rendering suspect the outcome of the
trial.†(People v. Harris (1994) 22 Cal.App.4th 1575, 1580; See also
Cal.App.3d 59 [error in admitting
evidence the defendant was a convicted felon, on parole living in a halfway
house], overruled on other grounds in People
v. Kimble (1988) 44 Cal.3d 480, 498.)
“With
certain exceptions not relevant here, Evidence
Code section 1101, subdivision
(a), provides that ‘evidence of
a person’s character’—whether in the form of an opinion, evidence of reputation, or evidence of specific instances of
conduct—‘is inadmissible when offered to prove [the person’s] conduct on a
specified occasion.’ This prohibition,
however, does not preclude ‘the admission of evidence that a person committed a crime, civil wrong, or other
act when relevant to prove some fact . . . other than [the person’s]
disposition to commit such an act,’ including ‘motive, opportunity, intent,
preparation, [or] plan.’ (Evid. Code, § 1101, subd. (b).)†(People v. Valdez, supra,
55 Cal.4th at p. 129.) When conducting
an Evidence Code section 1101, subdivision (b) analysis, courts must
additionally determine that “the probative value of the proffered evidence [is]
not . . . substantially outweighed by the probability that its admission would
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury. (Evid. Code, § 352.)
We
are at a loss to explain what relevance defendant’s probationary status, time
spent in jail, and the fact that a gun was found in the car when defendant was
arrested bore on the issues at trial other than to evidence defendant’s bad
character. The interview with defendant
includes 13 express references to defendant’s status on probation. It also contains at least several indirect
references to his probation status. It
references defendant had been out of jail for only nine months at the time of
the interview. Furthermore, the officer
discusses the fact that there was a gun in the car when defendant was arrested
for evading police.
Contrary
to the People’s contention, we do not view these facts as inconsequential. The transcript of the recording already
contains a number of redactions. We
divine no tactical reason for defense counsel to fail to request redaction of
the prejudicial portions of the interview or at least object to their
inclusion, especially when the court had already ruled that the only evidence
of defendant’s prior conviction that would be admitted were the fact of the
conviction, the crime, and the date of the offense. (People
v. Guizar (1986) 180 Cal.App.3d 487, 492 [“[I]f the jury properly heard any
part of the [recording] at all, it was counsel’s responsibility to edit out at
least the portion of the [recording] and transcript referring to other
[offenses]. Ignoring other possible
objections, it is inconceivable to us that defense
counsel did not object to the introduction of this portion of the tape and
transcript on the ground that it was more prejudicial than probative].)
2. SANITIZATION
OF THE DOCUMENTARY EVIDENCE OF DEFENDANT’S PRIOR CONVICTION
The
People moved into evidence Exhibit 32, a certified packet of documents
regarding defendant’s prior conviction.
defendant’s plea agreement, his probation terms, and a number of minute orders
establishing defendant violated, and had his probation revoked, twice. The complaint reflects defendant was
originally charged with unlawful possession of a firearm. The plea agreement reflects defendant was
sentenced to 180 days in jail and three years of felony probation thereafter.
Again,
we can discern no reason why defense counsel would fail to request redaction of
the prejudicial portions of the documentary materials when the court had
already ruled only the fact of defendant’s conviction, the offense, and the
date of the offense would be permitted into evidence. We disagree with the People’s argument that
the jury was unlikely to have read the 47-page document. Indeed, the gun possession charge is on page
two of the exhibit.
3. FAILURE
TO REQUEST LIMITING INSTRUCTION
Defendant
contends defense counsel rendered prejudicial IAC by failing to request a
limiting instruction on defendant’s prior offense, presumably CALCRIM No.
1403. The People counter defense counsel
could have made a tactical decision not to request a limiting instruction
because it would draw undue attention to the evidence of predicate offenses, which
the People deem tangential to the issues at trial. We agree with defendant that this was an
extraordinary case in which failure to request a limiting instruction
prejudiced defendant.
CALCRIM
No. 1403, “Limited Purpose of Evidence of Gang Activityâ€, reads, in pertinent
part, as follows: “You may consider
evidence of gang activity only for the
limited purpose of deciding whether:
[¶] The defendant acted with the
intent, purpose, and knowledge that are required to prove the gang-related
(crime[s]/ [and] enhancement[s]/ [and] special circumstance allegations)
charged(;/.) [OR] You may not consider
this evidence for any other purpose. You may not conclude from this evidence
that the defendant is a person of bad character or that (he/she) has a
disposition to commit crime.â€
(Italics added.)
“Adequate
representation requires an attorney to research ‘“carefully all defenses
available to the defendant . . . .â€â€™
[Citations.] . . . “counsel’s
duty ‘includes careful preparation of and request for all instructions which in
his judgment are necessary to explain all of the legal theories upon which his
defense rests.’†(In re Codero (1988) 46 Cal.3d 161, 189.) “[A]lthough a court should give a limiting
instruction on request, it has no sua sponte
to give one. [Citations.]†(People
v. Hernandez (2004) 33 Cal.4th 1040, 1051 [court not required to give
limiting instruction on its own motion in robbery case with gang enhancement
allegation].)
However,
there is an “exception to the general rule, . . . for the ‘occasional
extraordinary case in which protested evidence of past offenses is a dominant
part of the evidence against the accused, and is both highly prejudicial and
minimally relevant to any legitimate purpose.
In such a setting, the evidence might be so obviously important to the
case that sua sponte instruction would be needed to protect the defendant from
his counsel’s inadvertence.’
[Citation.]†(
1225; See also People v. Hernandez
(2004) 33 Cal.4th 1040, 1051.)
We
cannot say in this case the predicate offenses or, in particular, defendant’s
prior offense, played such a dominant part of the evidence against him that the
trial court was required to provide the limiting instruction sua sponte. Nonetheless, the inadmissibility of the
evidence of defendant’s prior offense on the basis for which it was offered and
the multiplicity of prejudicial facts that were admitted to prove defendant’s
prior offense, and were contained in the recorded interview of defendant, were
of such an extraordinarily prejudicial and minimally relevant purpose that
there could have been no tactical reason not to request the instruction.
jury was legally in a position to use all three predicate offenses to prove
defendant was a person of bad character with a disposition to commit the
murder. Moreover, it could also use the
evidence of defendant’s short term release from jail, status as a twice revoked
probationer when he allegedly committed the instant crimes, and prior charge of
gun possession, to prove defendant’s bad character and propensity to commit the
count 1 offense.
title="">[9]
E. GANG EXPERT’S OPINION REGARDING
DEFENDANT’S GUILT
Defendant
contends the trial court erred in admitting Sergeant Walker’s testimony that
“the murder of the victim in this case was at the direction of, in association
with, or for the benefit of the furtherance of the Five Time Hometown Crips
criminal street gang activity.†He also
maintains defense counsel committed prejudicial IAC in failing to object to
Sergeant Walker’s testimony. The People
argue defendant forfeited the issue by failing to object below and that the
evidence was admissible regardless. We
agree with the People defendant forfeited any contention the trial court erred
in admitting the evidence; however, we hold that defense counsel erred in
neglecting to object to the testimony.
“‘California
law permits a person with “special knowledge, skill, experience, training, or
education†in a particular field to qualify as an expert witness (Evid. Code,
§ 720) and to give testimony in the form of an opinion (id., [Evid. Code,] § 801). Under Evidence Code section 801, expert
opinion testimony is admissible only if the subject matter of the testimony is
“sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.†(Id. at subd. (a).) The subject matter of the culture and habits
of criminal street gangs . . . meets this criterion.’ [Citation.]â€
(People v. Vang (2011) 52
Cal.4th 1038, 1044 (Vang).)
“‘When
expert
opinion is offered, much must be left to the trial court’s discretion.’ [Citation.]
The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision
as to whether expert
testimony
meets the standard for admissibility is subject to review for abuse of discretion. [Citations.]â€
(People v. McDowell (2012) 54
Cal.4th 395, 426.) “‘Generally, an
expert may render opinion testimony on the basis of facts given “in a hypothetical
question that asks the expert to assume their truth.†[Citation.]’
[Citation.]†(
“Use of hypothetical questions is subject to an important requirement.
‘Such a hypothetical question must be rooted in facts shown by the evidence. .
. .’†(Ibid.)
Failure
to object to a gang expert’s testimony at trial forfeits any contention
regarding that testimony on appeal. (
789, 818-819.) Here, there is no
question the People failed to pose their question to Sergeant Walker in the
form of a hypothetical. The normal
manner of proceeding in such cases is to ask the expert witness a question
based upon a hypothetical situation grounded in the facts of the case being
tried. There is no doubt the better
manner of proceeding here would have been to pose the question in the form of a
hypothetical that embraced the particular facts of the case, but did not
directly refer to defendant.
Nevertheless, the admission of such expert evidence is not necessarily
error: “[N]o statute prohibits an expert
from expressing an opinion regarding whether a crime was gang related. Indeed, [it] is settled that an expert may express
such an opinion. To the extent the
expert may not express an opinion regarding the actual defendants, that is
because the jury can determine what the defendants did as well as an expert,
not because of a prohibition against the expert opining on the entire
subject. Using hypothetical questions is
just as appropriate on this point as on other matters about which an expert may
testify.†(Vang, supra, 52 Cal.4th
at p. 1052.)
At
least one court has found the admission of an expert witness’s opinion that the
crimes of the particular defendants in question were committed for the benefit
of the respective defendants’ gangs, without the use of a hypothetical, was
within the trial court’s discretion. (
494, 509.) The court in
approvingly cited Valdez for this
very point. (Id. at p. 1227.) Likewise,
the court in Vang, albeit in dicta,
expressed support for that holding: “It
appears that in some circumstances, expert testimony regarding the specific
defendants might be proper.
[Citations.]†(
based solely on this error, it is not reasonably probable an outcome more
favorable to defendant would have resulted in the absence of Sergeant Walker’s
testimony. (Clark, supra, 52 Cal.4th
at pp. 940-941 [error in admission of prosecution’s expert witness testimony
subject to Watson standard of
harmless error]; People v. Watson (1956) 46 Cal.2d 818, 836.)
However,
as discussed above, this is not the only error in this case. Moreover, we can discern no tactical reason
for defense counsel to fail to object to Sergeant Walker’s testimony on the
issue. Sergeant Walker’s testimony
effectively informed the jury defendant committed the murder because he was the
only 5x gang member at the party to which the evidence was inferentially
susceptible. Thus, we find defense
counsel erred in failing to object.
F. CUMULATIVE ERROR
“Sometimes
the cumulative
effect of errors
that are harmless in themselves can be prejudicial.†(People
v. Loy (2011) 52 Cal.4th 46, 77.)
“[A] series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial
error. [Citation.]†People
v. Hill (1998) 17 Cal.4th 800, 844 overruled on another ground in
Cal.4th 1046, 1069, fn. 13.) “Under the
cumulative error doctrine, the reviewing court must ‘review each allegation and
assess the cumulative effect of any errors to see if it is reasonably probable
the jury would have reached a result more favorable to defendant in their
absence.’ [Citation.] When the cumulative effect
of errors deprives the defendant of a fair trial and due process, reversal is
required. [Citation.]†(People
v. Williams (2009) 170 Cal.App.4th 587, 646.)
Although
we might conclude any single error discussed above was harmless standing alone,
we cannot ignore the overall prejudice to defendant’s fair trial rights. While, on the basis of the properly admitted
evidence alone, we would affirm defendant’s conviction of the murder and the
attached gang enhancement, we cannot ignore the fact that the evidence of
defendant’s guilt on the murder offense was weak and “supported only by
circumstantial evidence and the inferences one might draw therefrom.†(See People
v. Ruiz (1988) 44 Cal.3d 589, 605-607 [identity of murder perpetrator
supported only by prior crimes evidence and victim’s prior statements of fear
of the defendant].) Indeed, at trial, no
one identified defendant as being either the shooter or even someone who was
present at the party. The only evidence
defendant was present at the party was presented through the prior out of court
identifications by Williams, Hambrick, and Hollis, of defendant as being the
one who argued with the victim twice at the party. No direct evidence at all was presented that
defendant was the shooter.
The
conglomeration of improperly admitted evidence including not only the admission
of defendant’s prior conviction in and of itself, but the circumstances of the
underlying offense, despite the court’s express ruling that nothing but the
nature of the offense and the date of conviction would be admitted, severely
prejudiced defendant. Indeed, the jury
was informed defendant had a gun in the car when he committed the prior
offense, and received documentary evidence defendant was originally charged
with weapons possession. In addition,
the jury was repeatedly informed defendant had been on probation when he
allegedly committed the instant offense.
It was given documentary evidence defendant had already twice violated
the conditions of that probation after having only been out of jail for nine
months.
This
evidence was augmented with Sergeant Walker’s improper opinion testimony “the
murder of the victim in this case was at the direction of, in association with,
or for the benefit of the furtherance of the Five Time Hometown Crips criminal
street gang activity.†Because defendant
was never identified as the shooter, Sergeant Walker’s opinion effectively instructed
the jury defendant was the shooter because he was the only 5x gang member the
evidence supported was present at the party.
Finally, the court improperly instructed the jury it could consider
defendant’s prior offense to establish the gang’s primary activities despite
the fact that the statute does not permit evidence of evading police to support
that prong of either the gang enhancement or the substantive gang offense. Thus, it is reasonably probable the jury
would have reached a result more favorable to defendant in the absence of the
errors.
We
reverse and remand the judgment on the count 1 offense and the attached gang
enhancement allegation. We reverse the
judgment on count 2.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
KING
Acting P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Hambrick
did not identify defendant at trial.
