P. v. Edwards
Filed 2/6/13 P. v. Edwards
CA2/2
NOT TO BE PUBLISHED IN THE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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
KAI EDWARDS,
Defendant and Appellant.
B236131
(Los Angeles
County
Super. Ct.
No. NA084077)
APPEAL from a judgment of
the Superior Court
of
County. Charles D.
Sheldon, Judge. Affirmed.
Law
Offices of Paul Richard Peters and Paul Richard Peters; The Defenders Law Group
and Lawrence R. Young for Defendant
and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General for Plaintiff and Respondent.
Defendant
and appellant Kai Edwards (defendant) appeals from his murder conviction. He contends that a telephone call he made
from jail consisted of inadmissible hearsay admitted in violation of his Sixth
Amendment right of confrontation. He also contends that portions of the gang
expert’s testimony should have been stricken due to insufficient
foundation. As we find no merit to
defendant’s contentions, we affirm the judgment.
1. Procedural history
Defendant was charged
with the murder of Duncan Battiest (Battiest) in violation of Penal Code
section 187, subdivision (a).
name="_ftnref1" title="">[1] The information specially alleged that
defendant personally used and intentionally discharged a firearm in the
commission of the offense, causing Battiest great bodily injury and death
within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1);
and that the crimes were gang related as defined in section 186.22, subdivision
(b)(1)(C). After a jury trial defendant
was convicted of murder in the first degree.
The jury also found true the firearm and gang allegations.
On August 25, 2011, the trial court sentenced
defendant to 50 years to life in prison, comprised of 25 years to life for the
murder and 25 years to life for the gun discharge, with 937 days of actual presentence
custody credit. The trial court also
ordered victim restitution and mandatory fines and fees. Defendant filed a timely notice of appeal.
2. Prosecution evidence
On January 29, 2009, Battiest was shot outside his
home on Walnut Avenue in Long
Beach, suffering wounds to his
rendered him paralyzed. He died several
months later as the result of the neck wound, without having left the hospital.
Daniel Faulk (Faulk) testified
he was visiting a friend in the neighborhood at the time of the shooting. He was on his friend’s balcony sometime
between 6:30 and 7:00 p.m., when he saw an African-American man enter the
walkway of the building next door. The
man, whom he later identified as defendant, was wearing a black hooded
sweatshirt, jeans, and Nike shoes with protruding tongues and oversized
laces. Moments later, Faulk heard a
gunshot and some shouting and saw defendant slowly running or jogging away,
holding something. At trial, Faulk
identified defendant in court and identified photographs of defendant wearing
his distinctive Nike shoes.
Officer Rommel Chavez and
several other Long Beach police officers were nearby and went immediately to
the scene in response to a radio call.
Officer Chavez testified that as he and Officer Sean Deaton approached
Walnut Avenue, he saw two African-American men running away from the area. Defendant was removing and discarding
clothing as he ran, a common tactic of suspects trying to change their
appearance. The two suspects separated
as they ran and soon afterward Officer Deaton detained defendant, while Officer
Chavez detained the other man, later identified as Travion Toler (Toler). Faulk was taken to each suspect’s location
for a field identification. He was first
shown Toler, who he did not identify. He
was next shown defendant and identified him as the man he saw entering the
building next door and running away after the gunshot.
Officer Oscar Morales
went to the scene of the shooting at approximately 6:45 p.m. and collected a
.25-caliber bullet casing and other evidence.
Not far from the scene of the shooting, Sergeant Douglas Richard Bender
found a discarded blue sweatshirt. When
he picked up the sweatshirt, a gun fell out of the pocket. Other items in the pocket included a receipt
from an area minimart. A surveillance
video obtained from the minimart depicted defendant and Toler next to each
other approximately 45 minutes prior to the shooting. Defendant is seen wearing a dark-colored
hooded sweatshirt and a blue baseball cap.
Firearms expert Troy Ward
(Ward) testified that he tested the gun and the recovered bullet casing as well
as the two expended bullets recovered from the victim’s body by the
coroner. Ward determined that the gun
was a .25-caliber semiautomatic pistol which had ejected the shell casing
recovered at the scene. He also
determined that the bullet recovered by the coroner from the victim’s neck had
been fired from the same gun. Although
the second bullet was too damaged for a conclusive determination, he noted that
it had barrel markings similar to the first bullet.
Long Beach Police Officer
Chris Zamora testified as the prosecution’s gang expert. He was familiar with the Insane Crip gang
(Insane Crip gang or Insane Crips) and had personally investigated the gang
throughout most of his 10-year career.
The Insane Crips territory was primarily central Long Beach, with
smaller pockets in north and south Long Beach.
Some of its 900 members were spread throughout California. Officer Zamora had investigated Insane Crip
gang activity in San Bernardino, Riverside, and Orange Counties. He explained that there were small subgroups
or “cliques†within the Insane Crip gang, each with its own identifying signs
or symbols. One such clique was known as
Baby Insane. Although most Crip gang
members wore blue, some members of the Baby Insane clique wore red, the color
used by rival Blood gangs. The clique
had adopted the Cleveland Indians’s team logo, sometimes using just a feather
as its sign and sometimes using the entire logo. Members of the Baby Insane clique were young
and very violent.
Officer Zamora testified
that the primary criminal activities of the Insane Crips included assaults,
fights, possession of illegal weapons, gang shootings, murder, and narcotics
sales. He had investigated cases
involving all such crimes and Insane Crips members. As predicate acts showing the gang’s criminal
nature, Officer Zamora presented two certified dockets, one showing the 2009
conviction of Don Acklin (Acklin) for murder (§ 187) committed in 2007; and
another showing the 2008 conviction of Warren Jackson (Jackson) for carrying a
loaded firearm (§ 12031) in 2008.
Officer Zamora testified that he knew Acklin and knew him to be an
active member of the Insane Crips. He
also knew Jackson, and had assisted in the arrest leading to Jackson’s
conviction of carrying a loaded firearm.
The arrest took place during a gang meeting at a public park. Jackson admitted to Officer Zamora that he
was a member of the Baby Insane clique, and showed him the tattoo of the number
“3†on his arm, indicating the third letter of the alphabet -- a “C†for Crips.
In Officer Zamora’s
opinion defendant was an active member of the Insane Crip gang. His opinion was based in part on defendant’s
tattoos. Photographs of defendant show a
red “3†tattoo on his neck, and a “B†over an “I†on his right arm. The crossed out “B†on defendant’s right shin
indicated his rivalry with the Blood gang.
The word “Insane†appears on one shin and “Babies†appears on the
other. In Officer Zamora’s opinion the
tattoos showed that defendant was a member of the Insane Crips and the Baby
Insane clique. Officer Zamora also
believed that Toler was an Insane Crips member.
Officer Zamora was
familiar with the Insane Crips’s rival, the Rollin’ 20’s Crip gang (Rollin’
20’s), and had investigated criminal
activity by its members most of his career.
Officer Zamora believed that Battiest was a member of the Rollin’ 20’s,
as well as an “O.G.†which meant he was a somewhat older, more respected gang
member. Battiest had an “ES 20’s†tattoo
on his arm.
title="">[2]
At one time the two gangs
were a single gang, with many family and neighborhood ties, but over the years
they split apart and became bitter rivals.
The feud was ongoing at the time of the shooting, and both gangs claimed
the area of the shooting as their territory.
Officer Zamora testified that Insane Crips members referred to Rollin’
20’s members by the derogatory names, “Twink†and “Twinkie.†Rollin’ 20’s members called Insane Crips
members “Bugs.†“Cuz†meant a member of
any Crip gang. Thus when one Crip gang
member referred to another, he would call him, “Cuz.†Although the Insane Crip gang was the larger
of the two, both were equally violent and aggressive, and equally involved in
criminal activity. Sometime in 2008,
Officer Zamora had investigated a Rollin’ 20’s member who had violently
assaulted an Insane Crips member.
Officer Zamora was asked
to give an opinion after assuming the following hypothetical facts: a member of the Insane Crips goes to the 400
block of Walnut in January 2009, walks up to a Rollin’ 20’s member, and shoots
him; the shooter is caught a short time later in the evening, wearing a
Cleveland Indians cap. In Officer
Zamora’s opinion, the crime was committed for the benefit of and at the
direction of a criminal street gang. He
based his opinion upon his familiarity with gang warfare and the gang custom of
shooting and killing rivals. He
explained that a gang’s reputation for being particularly aggressive instilled
fear in the rival gang and in the community at large, which benefitted the
shooter’s gang by discouraging residents from calling the police and rivals from
invading its territory, thus allowing the gang to sell drugs and survive. Officer Zamora explained that the shooter
also benefitted individually by an enhanced reputation within his gang and the
community, especially when the victim was an O.G.
Detective Teryl Hubert,
testified that she obtained audio recordings of certain telephone calls made
from county jail, where all outgoing calls by inmates are recorded. The prosecution played the hour-long redacted
recording of a conversation that took place nearly one year after defendant’s
arrest. Detective Hubert identified
defendant’s voice, labeled “K†in the transcript of the redacted recording.
warning that the call might be recorded or monitored was not included in the
redacted recordings, but could be heard every five minutes on the
original. The conversation appears in
part to be about the shooting and in other parts defendant can be heard using
the term “Twinkies†while speaking of the Rollin’ 20’s gang.
3. Defense evidence
Officer
Chris Martinez testified that while on patrol on January 29, 2009, he was
called to the crime scene at approximately 6:43 p.m. There he spoke to Faulk. Officer Martinez transported Faulk to two
separate field show-ups and was in his company for 30 to 40 minutes. Faulk told Officer Martinez he had seen the
subject run “in a full sprint†after hearing the gunshot. Faulk identified the person he saw running
away, based upon his clothing and appearance.
Forensic
Specialist Nancy Preston performed gunshot residue tests on defendant and
Toler. Defendant was tested at 8:25 p.m.
the night of the shooting. Detective
Hubert submitted the samples to the Los Angeles County Sheriff’s Department
crime lab, where analyst Joseph Cavaleri (Cavaleri) analyzed the results and
determined that both were positive for gunshot residue. Cavaleri explained that a positive test meant
that defendant and Toler could have fired a gun, handled a gun, been next to
someone who fired a gun, or touched a surface with gunshot residue on it before
being tested.
The
parties stipulated that that according to the United States Navy the sun set on
January 29, 2009, at 5:21 p.m. and the end of civil twilight was 5:47 p.m.
I. Recorded telephone conversation
A. No confrontation clause violation
Defendant contends that
the trial court erred in admitting portions of defendant’s in-custody telephone
conversation over his objection that it was hearsay and violated his right of
confrontation under the Sixth Amendment.
Defendant challenges only
the following colloquy:
“[Defendant]: Oh yeah, I forgot. I forgot.
Hey, bro, you know you was standing right there on the stairs, Cuz, as
that situation.
“[R]:
I know, my nigger.
“[Defendant]: You didn’t see me?
“[R]:
I didn’t know it was you.
“[Defendant]: Man, I did that, huh?
“[R]:
Yeah. Right there, right.
“[Defendant]: I was looking at you. I’m like, damn, bro, right there, right?
“[R]:
I saw when he dropped and everything.
At first I was like gonna go out there with Cuz.
“[Defendant]: It’s a good thing you didn’t.â€
The Sixth Amendment bars
the “admission of testimonial statements of a [declarant] who [does] not appear
at trial unless he was unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.â€
(Crawford v. Washington (2004)
541 U.S. 36, 53-54, 68 (Crawford).)
We
agree with respondent that whether offered for the truth or for a nonhearsay
purpose, the conversation was nontestimonial.
The confrontation clause is not implicated by statements that are not
testimonial. (Crawford, supra, 541 U.S.
at p. 59, fn. 9.) Testimonial evidence
includes formal testimony and statements resembling testimony, such as
responses to police interrogation undertaken to obtain evidence to be used at
trial. (Davis v. Washington (2006) 547 U.S. 813, 830 (Davis); Crawford,
remark†is not testimonial, even if it is inadmissible hearsay. (Crawford,
at p. 51.) Thus, a conversation between
prisoners and a secretly recorded statement to a government informant are both
nontestimonial. (Davis, supra, at p. 825,
citing Bourjaily v. United States
(1987) 483 U.S. 171, 181-184; Dutton v.
Evans (1970) 400 U.S. 74, 87-89.) As
federal courts have repeatedly held, “statements unwittingly made to an
informant are not ‘testimonial’ within the meaning of the confrontation
clause.†(People v. Arauz (2012)
210 Cal.App.4th 1394, 1402, citing inter alia, U.S. v. Smalls (10th Cir.
2010) 605 F.3d 765, 778 [recorded conversation between prisoner and informant
posing as prisoner].) Moreover, secretly
recording such statements to preserve them as evidence does not render them
testimonial. (See Arauz, at pp. 1402-1403.) It
follows that the recorded telephone conversation between defendant and a friend
was nontestimonial and did not implicate the Sixth Amendment.
B. No hearsay violation
Defendant provides no
analysis to support his conclusion that the statements were inadmissible
hearsay under the ordinary rules of evidence.
At most, he concludes that because the statements could be construed as
admissions, they were unreliable and amounted to the “most terrible kind of
hearsay.†As there was no constitutional
violation in admitting defendant’s own statements, the statements were
admissible as an exception to the hearsay rule.
(See Evid. Code, §§ 1204, 1220.)
Further, the statements of the other party to the conversation did not
have any independent relevance. At most
they provided a context for defendant’s statements which were a classic party
admission. (Evid. Code, § 1220.)
The cases cited by
defendant to illustrate his contention bear no resemblance to this case. (See, e.g., People v. Blackington (1985) 167 Cal.App.3d 1216 [codefendant’s
pretrial statements to police and others inadmissible without evidence of
conspiracy]; People v. Rios (1985)
163 Cal.App.3d 852 [incriminating hearsay statements originally made to police
and erroneously admitted as prior inconsistent statements after the witnesses
refused to answer any questions at trial without evidence of evasiveness];
343, 355 [witness’s pretrial
statements to police erroneously admitted after witness asserted Fifth
Amendment]; People v. Harris (1969) 270 Cal.App.2d 863 [same].)
Defendant has also failed
to demonstrate that his admissions of guilt should have been excluded under
Evidence Code section 352. “When an
objection to evidence is raised under Evidence Code section 352, the trial court
is required to weigh the evidence’s probative value against the dangers of
prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’
probative value, the objection must be overruled. [Citation.]
On appeal, the ruling is reviewed for abuse of discretion. [Citation.]â€
(People v. Cudjo (1993) 6
Cal.4th 585, 609.) The trial court’s
discretion will not be disturbed unless it was exercised “‘in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]’ [Citation.]â€
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Defendant contends that
the recorded statements should have been excluded because they were “highly
speculative and prejudicial.â€
name="_ftnref5" title="">[5] An uncoerced admission of guilt is
prejudicial to the defendant because it is highly probative. (People
v. Kipp (2001) 26 Cal.4th 1100, 1121.)
However, “[t]he prejudice which exclusion of evidence under Evidence
Code section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is
prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is
“prejudicial.†The “prejudice†referred
to in Evidence Code section 352 applies to evidence which uniquely tends to
evoke an emotional bias against the defendant as an individual and which has
very little effect on the issues. In
applying section 352, “prejudicial†is not synonymous with “damaging.â€â€™ [Citation.]â€
(People v. Karis (1988)
46 Cal.3d 612, 638.)
In any event, defendant
has not demonstrated that the court’s ruling resulted in a miscarriage of
justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
A miscarriage
of justice is demonstrated when there appears a reasonable probability that
defendant would have achieved a more favorable result in the absence of the
alleged error. (People v. Watson (1956) 46 Cal.2d 818, 836.) As respondent notes, the evidence that
defendant was the shooter was overwhelming.
An eyewitness identified defendant as the person he saw entering the
property next door just before hearing gunfire, and as the person who then
immediately ran from the area wearing a black hooded sweatshirt, jeans, and
Nike shoes with protruding tongues and oversized laces. Surveillance video from a convenience store
showed defendant, in the company of Toler, 45 minutes before the shooting,
wearing a dark-colored hooded sweatshirt.
Officer Chavez saw defendant discarding clothing as he ran from the area
with Toler, and a dark-hooded sweatshirt was later found in the bushes along
their route. The handgun that fell out
of a pocket of defendant’s sweatshirt was later determined to have fired the
fatal bullet. Photographs taken of
defendant’s shoes after his arrest depict distinctive Nike shoes with
protruding tongues and oversized laces.
Under such circumstances, there was no reasonable probability of a
different result without the challenged conversation.
Because we find nothing
arbitrary, capricious or patently absurd in the trial court’s refusal to
exclude the conversation, and no miscarriage
of justice, we find no abuse of discretion and no reversible error.
II. Gang testimony
Defendant contends that
there was insufficient admissible evidence to support the jury’s finding that
the murder was gang related.
A crime is gang related
if it was “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 . . . .†(See § 186.22, subd. (b)(1).) A “criminal street gang†means “an ongoing
association of three or more persons with a common name or common identifying
sign or symbol; [that] has as one of its primary activities the commission of
one or more of the criminal acts enumerated in the statute; and [that] includes
members who either individually or collectively have engaged in a ‘pattern of
criminal gang activity’ by committing, attempting to commit, or soliciting
(the so-called ‘predicate offenses’) during the statutorily defined
period. [Citations.]†(People
v. Gardeley (1996) 14 Cal.4th 605, 617; § 186.22, subds. (e) & (f).)
First, defendant contends
the expert’s opinion that the Insane Crip gang was a criminal street gang was
unsupported by substantial evidence because the prosecution sought to prove a
pattern of criminal gang activity with just one predicate offense. He is mistaken. Two certified dockets, one showing Acklin’s
2007 murder in violation of section 187, and the other showing Jackson’s 2008
possession of a loaded firearm in violation of section 12031 were introduced
into evidence. Both offenses were
qualifying predicate offenses and both offenses were committed within three
years of each other as required by section 186.22, subdivision (e).
Defendant next contends
that the expert’s opinion was unsupported by substantial evidence because the
expert’s “predicate testimony . . . was hearsay and therefore should have been
stricken.†Further, defendant contends
that the admission of such hearsay violated his Sixth Amendment right to confrontation.
Defendant did not object
to the testimony in the trial court on these grounds. His oral motion in limine was unclear, but
appears to have been a request to limit or exclude the expert’s testimony based
on a lack of evidence of defendant’s knowledge that the victim was a member of
the Rollin’ 20’s gang. Defendant’s vague
objection did not preserve a hearsay challenge for appeal. (See People
v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209; Evid. Code, § 353.) Nor did it preserve his claim of violation of
his right of confrontation. (See
290.)
In any event, defendant’s
contention lacks merit. Without
referring to any particular testimony to illustrate his point, defendant argues
that the testimony of Officer Zamora was based on “gossip and innuendo from
around the police station . . . .†We
find no gossip or innuendo in Officer Zamora’s testimony. Moreover, a gang expert’s opinion may be
based on information drawn from many sources and on years of experience, and
may include otherwise inadmissible hearsay, so long as it is reliable. (People
v. Gardeley, supra, 14 Cal.4th at
pp. 618-620.) “Thus, a gang expert may
rely upon conversations with gang members, on his or her personal
investigations of gang-related crimes, and on information obtained from
colleagues and other law enforcement agencies.
[Citations.]†(
1104, 1121-1122.)
To illustrate his
contention that there was insufficient evidence of a pattern of criminal
activity, defendant cites In re Alexander
L. (2007) 149 Cal.App.4th 605 (Alexander),
where the expert testified that a gang’s primary activities included the
commission of certain crimes, but his opinion was unsupported by sufficient
evidence that the gang consistently and repeatedly committed the enumerated
crimes. (See id. at pp. 613-614.)
Defendant’s reliance on that case is misplaced, as here Officer Zamora
gave detailed testimony concerning the basis for his opinion, including his
experience and training as well as his personal contact with the Insane Crips
gang, in marked contrast to the conclusory and insufficient offerings in
at p. 614.)
Here, a pattern of
criminal activity was sufficiently established with the predicate offenses
committed by Acklin and Jackson. In turn,
the predicate offenses were sufficiently established with certified copies of
court dockets, which were admissible and presumptively reliable. (See People
v. Duran (2002) 97 Cal.App.4th 1448, 1461; Evid. Code, § 452.5, subd.
(b).) In addition, Officer Zamora
testified that both Acklin and Jackson were members of the Insane Crip
gang. Far from relying on gossip or
innuendo, Officer Zamora testified that he knew Acklin and Jackson because he
had personally investigated them and their gang over many years, and had
assisted in the arrest of Jackson for the predicate crime.
In sum, Officer’s
Zamora’s opinion was adequately supported by information drawn from his
experience, conversations with gang members, and his investigations of
gang-related crimes. (See
191 Cal.App.4th at pp. 1121-1122.) His
expert opinion was thus admissible and provided substantial evidence that
defendant’s gang was a criminal street gang.
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
further statutory references are to the Penal Code, unless otherwise indicated.
stood for eastside.
