P. v. Griffin

Filed 3/26/08 P. v. Griffin CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. Jones, Judge. Affirmed.

Edward H. Schulman, 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, Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________

Gabriel Griffin was convicted of one count of first degree murder and one count of assault with a firearm, with allegations that he had personally and intentionally discharged a firearm and committed the crimes for the benefit of a criminal street gang. (Pen. Code, 187, subd. (a), 245, subd. (a)(2), 12022.53, subds. (b)-(d), 12022.5, subd. (a)(1), 186.22, subd. (b)(1)(C)).[1] He was sentenced to state prison for an aggregate term of 67 years to life. Griffin appeals, challenging (I) the trial courts denial of his motion to suppress evidence obtained during a probationary search of his bedroom, (II) the admission of expert opinion, and (III) the sentences imposed for the firearm enhancements. We reject his claims of error and affirm the judgment.

FACTS

Just before 11:00 p.m. on March 6, 2004, Griffin (a member of the Schoolyard Crips) shot and killed Kenneth K.C. Ross (a member of the same gang who had been labeled a snitch after he testified against fellow gang member charged with a 2003 drive-by shooting).

There were several witnesses to Rosss murder. Brenda Freeman was walking toward a neighborhood liquor store when she saw several men, including Ross (whom she knew) at a bus stop. On her way home, Freeman heard shots, turned around, and saw Griffin (whom she knew by sight) holding a gun at arms length. Griffin ran off, and Freeman then saw Ross lying on the ground (he had been shot three times, once in the shoulder and twice in the head). One of the other men who had been at the bus stop, James Brown, had been shot in the hand. Brown told the investigating officers that just before the shooting started, he had heard Ross ask, Whats up? A fearful Freeman at first told the police she had not seen the shooter, but later identified Griffin from a photo array.

On March 19, the police searched Griffins bedroom where they recovered a drawing of a man (with Jamie tattooed on his neck and wearing a shirt with 17 on it) shooting a dog with SYC written on the picture just above the dog. Griffin has the same tattoo on his forearm. Griffin was arrested and charged as noted at the outset.

At trial, the People presented evidence of the facts summarized above. In addition, a gang expert testified that the drawing found at Griffins residence is a trophy picture, that the SYC in the picture referred to the Schoolyard Crips gang, and that the dog symbolized a gang member. The expert described gang culture, the manner in which gang members intimidate residents in their territory, and the gangs perception of a snitch as probably the most cardinal sin that any gang member or citizen can commit, especially in a gang neighborhood.

Griffin was convicted as charged.

DISCUSSION

I.

Griffin contends the warrantless search of his bedroom was conducted without a rational suspicion that he was involved in the murder, and that his motion to suppress the drawing should have been granted. We disagree.

A.

The evidence at the motion to suppress hearing established the following facts.

On March 19, the day of the search, homicide officers investigating Rosss murder contacted Detective Ling, a member of the Los Angeles Police Departments gang enforcement detail, and informed him that Griffin was a suspect in a murder case. Detective Ling, who regularly conducts compliance checks on probationers, knew Griffin was on probation (and had previously performed at least two compliance checks at Griffins grandmothers house, where he had been living until he moved to his mothers house on Don Carlos Street, which is where the search occurred).

In response to the call from the homicide officers, Detective Ling spoke to Griffins probation officer, who confirmed that Griffins probation was subject to a search condition (and a copy of the order with the search condition was received in evidence). After confirming that Griffin was living at the Don Carlos Street house (he had used the address earlier that month when he received a traffic citation), Detective Ling, other officers, and Griffins probation officer went to the house. On arrival, Detective Ling told Griffins mother that they were there to conduct a probationary search, and she took them to Griffins bedroom. In the closet, the officers discovered an envelope with gang graffiti, and the drawing described above was found inside that envelope. Griffins mother testified that Griffin was not living at her house and that she had not told the police he was living there.

The trial court denied the motion, finding that Griffin was on probation and subject to a search condition, that the officer who performed the search (Detective Ling) was aware of the condition, and that the search was based on the officers reasonable belief that Griffin lived in his mothers house. The court expressly found that Griffins mothers testimony was not credible.

B.

Griffin concedes that he was on probation and subject to a search condition, and that the search was conducted with the specific purpose of furthering an ongoing criminal investigation into Rosss murder, but contends the search was nevertheless unlawful because there was no rational[] suspicion to connect [him] to that homicide, which he says makes the search unreasonable under the Fourth Amendment. (United States v. Knights (2001) 534 U.S. 112, 120 [when an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationers significantly diminished privacy interests is reasonable].) His argument fails for the simple reason that his factual premise is incorrect.

Detective Ling plainly had a rational suspicion that Griffin was engaged in criminal activity -- he was told by the homicide officers that Griffin was a suspect in the Ross murder. Although Griffin asserts in conclusory terms that a generalized assertion, based on third party hearsay is insufficient, he cites no pertinent authority to support his view, and we know of none. In fact, the rule is just the opposite -- that the searching officers state of mind is significant (Michigan v. DeFillippo (1979) 443 U.S. 31, 37; Adams v. Williams (1972) 407 U.S. 143, 146; In re Jaime P. (2006) 40 Cal.4th 128, 137) and, in the context of this case where there is nothing to cast doubt on Detective Lings good faith belief in the information he obtained from the homicide detectives, dispositive.[2]

II.

In related arguments, Griffin contends the gang experts response to a hypothetical question should have been excluded, and that trial counsels failure to object deprived Griffin of the effective assistance of counsel. As we explain below, any error was harmless (and it is therefore unnecessary to consider Griffins challenge to counsels effectiveness).

A.

The prosecutor asked Officer Curtis Morton, a gang expert, to assume a set of facts tracking the evidence in this case, then asked the expert whether, in his opinion, the murder of Ross was committed for the benefit of, in association with, or at the direction of the Schoolyard Crips. Officer Morton responded, Kenneth Ross was killed by the defendant because he snitched. [Ross] gave information to the police that implicated another gang member. And as I described before, snitching is one of the cardinal sins that can be committed in the gang world. (Emphasis added.)

B.

Assuming as Griffin contends that the experts statement about Griffins guilt (Ross was killed by the defendant) was an improper and inadmissible opinion on the question of Griffins guilt (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77) as opposed to an admissible opinion about whether the murder was committed for the benefit of the gang (People v. Ward (2005) 36 Cal.4th 186, 209-210), the error was plainly harmless (People v. Watson (1956) 46 Cal.2d 818, 836).

Undisputed evidence established that Ross (an SYC member) had given information to the police about the identity of the murderer (an SYC member) in the 2003 shooting; that (in the current murder) Brenda Freeman saw someone pointing a gun when the shots were fired, then saw Griffin, gun in hand, running down the street; that snitches end up getting killed; and that Griffin was an admitted SYC soldier. We are satisfied that, in the absence of the experts opinion about Griffins guilt, the verdict in this trial would have been the same.

III.

Griffin contends the imposition of the section 12022.53, subdivision (d), sentence enhancement violates (1) the Ireland merger doctrine (People v. Ireland (1969) 70 Cal.2d 522), (2) section 654, and (3) his right to due process. We disagree.

A.

Griffin was sentenced to state prison for a term of 25 years to life for the murder, plus an additional term of 25 years to life for the section 12022.53, subdivision (d), enhancement (discharge of a firearm causing death), a total of 50 years to life for count 1; in addition, he was sentenced to the midterm of three years for the count 2 assault, plus four years pursuant to section 12022.5, subdivision (a), plus 10 years for the gang enhancement, a total for count 2 of 17 years, to be served consecutively to the count 1 sentence, for an aggregate total of 67 years to life. Sentences on the other enhancements were imposed and stayed (10 years for the section 12022.53, subdivision (b) enhancement, and 20 years for the section 12022.53, subdivision (c) enhancement).

B.

In People v. Ireland, supra, 70 Cal.2d at page 539, the Supreme Court held that a second degree felony murder conviction cannot be based on a felony (there, an assault with a deadly weapon) that is an integral part of the homicide because it would relieve the prosecution of its obligation to prove malice. Insofar as we are aware (and Griffin offers no citation to the contrary), this merger doctrine has been applied only in cases involving felony murder and assault. (See People v. Hansen (1994) 9 Cal.4th 300, 312.) Griffin nevertheless contends the merger doctrine applies here, so that he cannot be punished for both the murder and the intentional discharge of a firearm. For the reasons explained in People v. Sanders (2003) 111 Cal.App.4th 1371, 1374 -- primarily that the merger doctrine does not apply to enhancements -- Griffins argument must fail.

We summarily reject Griffins related contentions that the sentence enhancement violates section 654 and his right to due process. Section 654 does not apply to sentence enhancements (People v. Palacios (2007) 41 Cal.4th 720, 727-731), and this sentence does not violate Griffins due process rights (People v. Gonzales (2001) 87 Cal.App.4th 1, 13-15).

IV.

We summarily reject Griffins contention that the trial court erred in staying his sentences on the section 12022.53, subdivisions (b) and (c) enhancements (he claims they should have been stricken, not stayed). Although the issue is currently pending before the Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898, the present state of the law is that the trial court correctly imposed the greatest weapons enhancement (section 12022.53, subdivision (d), for count 1, and section 12022.5, subdivision (a), for count 2), and stayed the remaining enhancements. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 713; People v. Oates (2004) 32 Cal.4th 1048, 1066.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] All section references are to the Penal Code.

[2] Our resolution of this issue on the grounds stated in the text makes it unnecessary to consider Griffins alternative argument that trial counsel was ineffective in the manner he handled the suppression motion.