P. v. Foreman

Filed 10/16/09 P. v. Foreman CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Arthur R. Lew, Judge. Affirmed as modified.

Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant and appellant Raymond Foreman (defendant) guilty of possession of a firearm by a felon and, in a bifurcated proceeding, the jury found the gang allegation true. On appeal, defendant contends the trial court erred in admitting expert testimony on the gang allegation and that there was insufficient evidence to support the true finding on the gang allegation. In addition, defendant requests that we review the transcript of the in camera hearing on his Pitchess[1] motion to determine if the trial court erroneously withheld any discoverable documents contained in the police officers personnel files. Defendant also contends, and the Attorney General agrees, that the trial court erroneously imposed a $20 DNA penalty.

We hold that the trial court did not abuse its discretion by admitting expert opinion on the gang allegation and that substantial evidence supported the true finding on that allegation. Based on our review of the transcript of the in camera hearing on defendants Pitchess motion, we conclude that no discoverable documents were withheld. We also agree that the $20 DNA penalty was erroneously imposed and should be stricken. We therefore affirm the judgment of conviction, but remand to the trial court with instructions to strike the $20 DNA penalty.

FACTUAL BACKGROUND

A. Prosecutions Case in Chief

On March 10, 2008, City of Los Angeles Police Officer Mike Leese was assigned to the Southeast Division Gang Unit. At around 9:30 p.m., he arrived at 11118 Antwerp Avenue, unit 493, with several other officers. The officers had received information that narcotics were being sold there. Officer Leese observed a disheveled looking woman go to the door of that unit and hand a man some money. The man then handed the woman an item, and she walked away from the unit.

Unit 493 was a two-story apartment with the kitchen and living room downstairs. The rear door opened to the kitchen and from that door, the living room and stairwell were visible. Officer McCoy looked through the window near the rear door and told the other officers, They [have] dope on the table. The officers announced their presence and knocked on the door. Inside the unit, an individual grabbed a handful of dope off the table, off [a] cutting board and then began to run upstairs with it. Other persons inside the house were yelling Five-Oh, Five-Oh.[2] Officer Leese then heard a toilet flushing, and he knew suspects often would flush narcotics to destroy evidence. Because the occupants did not open the door immediately, and it sounded as if they were destroying evidence, Officer Leese was tasked with opening the door with a battering ram. After the first hit with the battering ram, the door opened and Officer Leese observed defendant, who was standing in the living room, remove a nine millimeter handgun from his waistband and stuff it under a couch cushion.

Officer Leese waited for the other officers to enter the unit and then he dropped the battering ram and followed. Officer Leese saw defendant run upstairs. The next time Officer Leese saw defendant, he was lying on the grass outside the rear door to the apartment. Officer Leese recovered the handgun from the sofa where he had seen defendant place it. He unloaded the weapon and booked it into evidence. Officer Leese observed three or four other persons at the scene and a wooden cutting board with an off-white residue resembling cocaine, as well as razor blades which are often used to cut narcotics. The officers also located a significant amount of cash upstairs in denominations usually used to purchase narcotics.

On March 10, 2008, City of Los Angeles Police Officer Roger Fontes arrived with other officers at 11118 Antwerp Avenue, unit 493. From his vantage point, Officer Fontes saw a woman make a hand to hand transaction with someone inside the residence. Officer Fontes then saw Officer McCoy at a window near the back door to the unit. Officer McCoy stated, They have dope inside on top of a . . . - - it looks like a cutting board. The officers then announced their presence and knocked on the door. Officers Fontes heard a bunch of people moving about . . . quickly. [He] could hear people going upstairs. The occupants were shouting Five-Oh, Five-Oh. When Officer McCoy informed the other officers that someone had grabbed what looked like narcotics from the table and ran . . . away from [the officers], the officers forced open the back door. As the door swung open, Officer Fontes saw defendant running away from the officers and pulling a handgun from his waistband. Defendant pushed [the handgun] underneath a cushion in a sofa that was against the wall and began to run towards the stairway. The officers entered the apartment and immediately went upstairs, where they encountered persons other than defendant. The officers recovered a cutting board with residue consistent with rock cocaine, razor blades, a scale, and approximately $3,000 in cash from the apartment.

In Officer Fontes opinion, a person would be armed inside a location known for selling drugs to protect the drugs and the persons selling them from rivals and potential thieves. If the location also had a substantial amount of cash, that would be another reason to have someone inside armed.

B. Defense Case

On the evening of March 10, 2008, defendant and his friend Daryl walked from defendants house to 11118 Antwerp Avenue, unit 493. The two men went to that location so Daryl could borrow $5 from his family and the men could buy some liquor. Defendant did not know the occupants of the apartment. While defendant and Daryl were inside the apartment, defendant heard a loud bang on the rear door. After the loud bang on the door, the police announced their presence. Defendant ran upstairs because he was subject to a gang injunction that prevented him from being in the projects where the apartment was located. Defendant had suffered three prior felony convictions, two for possession of a controlled substance and one for robbery, and one of the conditions of his parole was to stay out of the projects. Once upstairs, defendant went straight to a window above the rear door, waited until the last police officer entered the apartment, and jumped out.

On the night he was arrested, defendant did not possess the gun introduced into evidence. He did not remove it from his waistband nor hide it under a sofa cushion. Defendant did not know the four people who were in the apartment that night. No one was cutting rock cocaine on a cutting board in the apartment that night, and no one flushed toilets as the police were coming in.

Dell Freeman, a fingerprint consultant, examined the handgun that was recovered from the apartment and introduced into evidence. He did not recover any prints from either the gun or the magazine. According to Freeman, you dont get prints off of weapons that often. Its a difficult thing to work with. It would be almost impossible to recover prints from the checkered area on the grip of the handgun. In the older days, handguns were polished or blued, and it was easier to obtain prints from them. But the gun in question had a Teflon surface, and it would be rare to recover prints from a gun such as that. Also, if a gun was handled by someone wearing a glove or if the gun was pushed between two sofa cushions, any prints could be distorted.

C. Rebuttal

On March 10, 2008, City of Los Angeles Police Officer Tyson Hamaoka was assigned to the Southeast Division gang detail. He arrived at 11118 Antwerp Avenue, unit 493. He observed defendant upstairs in a bedroom of that apartment. He later observed defendant in custody outside the apartment. The other occupants of the apartment were also detained that night. Among them was Michael Slater. Slater had given officers a different name that night. Officer Hamaoka told defendant the investigation would take a long time due to Slaters failure to give a correct name. Defendant asked Officer Hamaoka if he could speak to Slater. Defendant and Slater talked face to face for about two minutes. During the conversation, defendant called Slater Mike. After the conversation, Slater gave Officer Hamaoka his correct name.

D. Bifurcated Trial of the Gang Allegation

At the time of trial, Officer Hamaoka had been a police officer for over five years. For the prior three and half years, he had been assigned to the Southeast Division and for the last two years, he was assigned to a task force that monitored gang crime activity and trends in the housing developments in the Southeast Division, such as Nickerson Gardens. The Bounty Hunter gang is located in Nickerson Gardens where defendant was arrested. For the prior year and a half, Officer Hamaoka had been assigned to monitor the Bounty Hunter gang and, in that capacity, he had conducted hundreds of field interviews and investigated hundreds of crimes involving the Bounty Hunter gang. He was familiar with their signs, symbols, territories, and rivals. He had previously testified as an expert witness on the Bounty Hunter gang. To familiarize himself with the Bounty Hunter gang, Officer Hamaoka spoke directly to the gang members who resided in Nickerson Gardens and to seasoned detectives who were Bounty Hunter experts before he took that assignment. Over the last year and a half, Officer Hamaoka had daily contact with Bounty Hunter gang members. The primary activities of the Bounty Hunter gang were narcotic sales, possession of weapons, burglaries, street robberies, and homicides.

On March 10, 2008, Officer Hamaoka was at 11118 Antwerp Avenue, unit 493. Slater was detained at that location. Slater had previously admitted to Officer Hamaoka that he was a Bounty Hunter gang member, and he again confirmed on the night of his arrest that he was a member of that gang. Slater had tattoos that signified he was a member of that gang. To Officer Hamaokas knowledge, Slater was an active gang member at the time of trial. Daryl Wasson was also detained at the apartment that night. Wasson admitted to Officer Hamaoka several times that he was a member of the Bounty Hunter gang. Officer Hamaoka observed Wasson on a number of occasions associating with persons who had also admitted to being members of the Bounty Hunter gang. Officer Hamaoka had arrested Wasson for robbery, which was one of the primary activities of the Bounty Hunter gang. Anderson Martel and Alex Covarrubias were also members of the Bounty Hunter gang; Martel had been convicted of possession of rock cocaine for sale, and Covarrubias had been convicted of possession of a gun.

In Officer Hamaokas opinion, the crime which defendant committedpossession of a firearm by a felonwas committed in furtherance of and to promote the criminal street gang known as the Bounty Hunter gang. He based his opinion on the following facts: on the night of defendants arrest, over $3,000 was recovered, which suggested that the occupants of unit 493 had been selling a large amount of drugs; the more drugs that are sold at a location, the more people frequent it, which increases the probability that rival gang members will become aware of that location as well; defendants possession of a gun at that location that night suggested he was protecting both the drugs and the money that were there; at least two other Bounty Hunter gang members were present at the location with defendant; in Nickerson Gardens, it was common for gang members to work in groups when selling drugs there; and, usually, one person at the location where the drugs are sold handles the drugs, another person handles the money, a separate person handles the gun to protect the drugs and money from rivals, and another person acts as lookout.

According to Officer Hamaoka, there was not a reasonable possibility that defendant was at the apartment to purchase drugs. The sellers inside the location would not allow a buyer to enter possessing a gun. Defendant would not have been allowed inside the location with a handgun unless he was a Bounty Hunter gang member.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney charged defendant in an information with possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1)[3]a felony. The District Attorney alleged that defendant committed the charged offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. The District Attorney further alleged that defendant had been convicted of a prior serious or violent felony within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and that defendant had suffered two prior convictions for which he served prison terms within the meaning of section 667.5, subdivision (b).

Defendant pleaded not guilty and denied the special allegations. In response to defendants Pitchess motion, the trial court held an in camera hearing and determined that certain personnel records for three police officers were discoverable and ordered the District Attorney to provide those records to defendant.

Following trial, the jury convicted defendant of possession of a firearm by a felon, and, in a bifurcated proceeding, the jury found true the gang allegation. Defendant admitted the prior conviction allegations.

The trial court sentenced defendant to eight years in state prison, comprised of a three-year upper term sentence on the charged crime, doubled pursuant to his prior strike conviction, plus a consecutive low term sentence of two years based on the true finding on the gang allegation.

Defendant filed a timely appeal from the judgment of conviction.

DISCUSSION

A. Standards of Review

Defendants challenge to the trial courts admission of the gang experts testimony is reviewed for abuse of discretion. We review the trial courts ruling on the admissibility of expert testimony for abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627 [134 Cal.Rptr.2d 1, 68 P.3d 302].) (People v. Watson (2008) 43 Cal.4th 652, 692.) Defendants challenge to the sufficiency of the evidence in support of the true finding on the gang allegation is governed by a substantial evidence standard of review. In reviewing [a claim regarding] the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] [T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Peoplev. Davis [(1995)] 10 Cal.4th 463, 509-510.) If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573-574, 99 S.Ct. 2781]), as is the due process clause of article I, section 15, of the California Constitution (People v. Berryman [(1993)] 6 Cal.4th 1048, 1083). (People v. Osband (1996) 13 Cal.4th 622, 690.)

B. Admissibility of Gang Expert Testimony

1. Forfeiture

The Attorney General argues that because defendant failed to raise a due process issue in the trial court, defendant has forfeited on appeal his claim that the admission of the gang experts testimony violated due process. Defendant counters that, under People v. Partida (2005) 37 Cal.4th 428, his objections based on foundation and speculation were sufficient to allow him to raise the due process argument on appeal. Because, as discussed below, the trial court did not abuse its discretion in admitting the gang experts testimony, we do not reach the forfeiture issue. Instead, we will assume, without deciding, that defendants objections based on foundation and speculation were broad enough to preserve his claim concerning the propriety of the gang experts opinion.

2. No Abuse of Discretion

Defendant contends that the trial court abused its discretion in admitting the gang experts opinion testimony. According to defendant, the only evidence that defendants possession of a gun benefitted a gang was the experts opinion to that effect. Defendant argues that the experts opinion embraced the ultimate issue on the gang allegation and impermissibly stated an opinion on defendants subjective intent in possessing the gun.

Expert opinion testimony is admissible only if it is [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, 801, subd. (a).) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. (Evid. Code, 720, subd. (a).) The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement. (People v. Kelly (1976) 17 Cal.3d 24, 39 [130 Cal.Rptr. 144, 549 P.2d 1240].) (People v. Watson (2008) 43 Cal.4th 652, 692.)

In general, this court and the Courts of Appeal have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case. 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. subd. (a).) The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion. (People v. Gardeley (1996) 14 Cal.4th 605, 617 [59 Cal.Rptr.2d 356, 927 P.2d 713]; see also People v. Ochoa (2001) 26 Cal.4th 398, 438 [110 Cal.Rptr.2d 324, 28 P.3d 78]; People v. Valdez (1997) 58 Cal.App.4th 494, 506 [68 Cal.Rptr.2d 135]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [37 Cal.Rptr.2d 596] [The use of expert testimony in the area of gang sociology and psychology is well established.].) Trial courts exercise discretion in determining both the admissibility of evidence under Evidence Code section 352 [citation] and a witnesss expert status [citation]. (People v. Ochoa, supra, at p. 437.) (People v. Gonzalez (2006) 38 Cal.4th 932, 944.)

Contrary to defendants assertion, expert testimony is not inadmissible if it embraces an ultimate issue in a case. There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. (People v. Wilson (1944) 25 Cal.2d 341, 349 [153 P.2d 720]; People v. Brown (1981) 116 Cal.App.3d 820, 827 [172 Cal.Rptr. 221].) [T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved . . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in. (25 Cal.2d at p. 349.) (People v. Valdez (1997) 58 Cal.App.4th 494, 507; see also Evid. Code 805 [Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact].)

Here, the issues for the jury to determine as to the gang allegation were whether defendants possession of a handgun at the apartment benefitted the Bounty Hunter gang and whether defendant armed himself that night with the specific intent to promote or assist in the criminal activities of that gang. The first issue included matters that were beyond the jurors common experience, such as how street gangs operate and, in particular, the manner in which they conduct drug sales. Without the experts testimony, the jurors may not have known that gangs in the area where defendant was arrested usually sold drugs in small groups of three or four members and that each member of such a group would have separate responsibilities, such as handling the drugs, handling the money from the drug sales, and protecting the drugs, money, and fellow gang members from other rival gangs and thieves. Similarly, but for the experts testimony, the jury may not have understood that a person who was armed, but not a member of a gang, would not have been allowed inside the apartment where gang members were actively selling drugs. Thus, it was reasonable for the trial court to conclude that the experts testimony might assist the jury in understanding how gangs operate.

Moreover, the experts opinion was not directed at defendants specific intent in arming himself that night, nor did it coincide with the ultimate issue to be decided by the jury on the gang allegation. The gang allegation was premised on section 186.22, subdivision (b)(1), which provides in pertinent part: 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: . . . . (Emphasis added.) Thus, a true finding on the gang allegation required the jury to make two determinations: (i) that defendants possession of the handgun inside the apartment benefitted the Bounty Hunter street gang; and (ii) that defendant armed himself that night with the specific intent to promote, further, or assist that gang. Although the gang expert offered opinion testimony as to the first element, he did not offer an opinion as to the second element, i.e., the expert did not, as defendant contends, opine as to defendants specific intent in arming himself that night. Rather, the expert explained how an armed gang member inside a location from which other gang members were selling drugs could assist in or further that criminal activity.

Because the trial court had broad discretion to admit expert opinion that would assist the jury in understanding matters beyond their common experience, such as how gangs operate, and because the testimony in issue rationally related to such matters, the trial court did not abuse its discretion in admitting the challenged expert testimony.

C. Substantial Evidence

Defendant contends that there was insufficient evidence to support the true finding on the gang allegation. According to defendant, the only evidence in support of the gang allegation was the experts opinion testimony, which was speculative and inadequate.

Under the substantial evidence standard discussed above, there was reasonable, credible evidence sufficient to support the true finding on the gang allegation. It was undisputed that defendant was arrested after trying to flee an apartment where drugs were being sold. Two Bounty Hunter gang members were present in the apartment, one of whom, Slater, defendant appeared to know. Before he attempted to flee the scene, two officers observed defendant hide a handgun in a sofa. As the gang expert explained to the jury, gang members selling drugs from a location would not allow a non-member inside the location if that non-member was armed. As the gang expert also explained, gang members in Nickerson Gardens worked in small groups when selling drugs, and usually at least one member of the group was armed to protect the drugs, the money, and the other members of the group. That opinion evidence, when combined with the facts of the case, supported a reasonable inference that defendant was a member of the Bounty Hunter gang who was working with at least two other members of that gang selling drugs from the apartment on the night of the arrest. It also supported an inference that defendant was acting as the enforcer that night because he was inside the apartment, as drug sales were being made, armed with a loaded handgun. And, that conclusion is reinforced by the large amount of cash that was recovered from the apartment that night, as well as the drug paraphernalia that was recovered. With both drugs and cash present, the inference that defendant was there as the enforcer was even stronger, given the area in which the apartment was located.

When viewed in a light most favorable to the judgmentthe standard of review to which we are boundthe evidence supports the jurys conclusion that defendant armed himself on the night of the arrest to assist fellow members of the Bounty Hunter gang in one of the gangs primary criminal activities, drug sales, and that he did so with the intent to promote and further the criminal interests of that gang.

D. In Camera Review

Prior to trial, the trial court conducted an in camera hearing to review certain personnel records of three police officers to determine whether any discoverable information was contained in those records. Following that in camera review, the trial court ordered the District Attorney to provide to defendant certain records that the court deemed discoverable.

Citing People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232, defendant requests that we conduct an independent review of the in camera proceedings to determine whether discoverable personnel records were incorrectly withheld. We have reviewed the sealed transcript of the in camera hearing and conclude that no discoverable personnel records were withheld. The trial court therefore did not abuse its discretion in refusing to order the production of the deputies personnel records beyond the records that the trial court ordered produced. (See People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221 [trial courts determination on discoverability of police personnel records reviewed for abuse of discretion].)

E. $20 DNA Penalty

Defendant contends, and the Attorney General agrees, that the trial court erred in imposing a $20 DNA penalty pursuant to Government Code section 76104.7. That section imposes a $1 penalty for every $10 of every fine, penalty, or forfeiture imposed. But it does not apply to restitution fines and security fees. (Gov. Code, 76104.7, subd. (c)(1) and 1465.8.) Because the DNA penalty in this case appears to have been based on the two restitution fines and the security fee imposed by the trial court, it was erroneously imposed and must be stricken.

DISPOSITION

The judgment of conviction is affirmed, but the matter is remanded to the trial court with directions to correct the abstract of judgment by striking the $20 DNA penalty.

MOSK, J.

We concur:

ARMSTRONG, J., Acting P. J.

KRIEGLER, J.

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[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[2] On the street, a person yells Five-Oh to alert others that police are present.

[3] All further statutory references are to the Penal Code unless otherwise indicated.