P. v. Hunter
Filed 8/12/13 P. v. Hunter CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIAN DEON HUNTER,
Defendant and Appellant.
B239980
(Los Angeles County Super. Ct.
No. VA117610)
APPEAL from
a judgment of the Superior Court of
County, Raul A. Sahagun, Judge.
Affirmed.
Joshua L.
Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Robert C. Schneider, Deputy Attorney
General, for Plaintiff and Respondent.
_____________________________
The jury found defendant and appellant Adrian Deon Hunter
guilty in counts 1-4 of second degree
robbery
(Pen. Code, § 211)
name="_ftnref1" title="">[1] and in count
6 of street terrorism (§ 186.22, subd. (a)). Defendant was found not guilty of
second degree robbery in count 5. With respect to counts 1-4, the jury found true
allegations that defendant committed the charged crimes for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)) and a principal was armed with
or used a firearm (§§ 12022, subd. (a)(1), 12022.53, subds. (b) &
(e)). The jury also found that a
principal was armed with a firearm in count 6.
Following a bench trial, the
trial court found defendant suffered a prior strike under the three strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), suffered a prior serious
felony conviction (§ 667, subd. (a)), and served a prior prison term (§ 667.5,
subd. (b)).
With respect to count 1, the trial
court imposed the middle term of 3 years, doubled pursuant to the three strikes
law, with a 10-year enhancement for the gang allegation, and an additional year
pursuant to section 12022, subdivision (a)(1), for a total of 17 years. The court also imposed and stayed an
additional 10 years pursuant to section 12022.53, subdivisions (b) and
(e). An identical concurrent sentence
was imposed as to count 3.
As to both counts 2 and 4, the trial
court imposed consecutive terms of five years four months in
middle term of three years), doubled pursuant to the three strikes law, with a
three years four months enhancement for the gang allegation (one-third of ten
years), and an additional term of four months pursuant to section 12022,
subdivision (a)(1) (one-third of one year).
The court also imposed and stayed a term of three years four months
pursuant to section 12022.53, subdivisions (b) and (e) (one-third of ten
years).
In count 6, defendant was sentenced
to the upper term of three years, with an additional year for the
(a)(1)) for a total of four years. The
sentence was stayed pursuant to section 654.
Codefendants Maurice Lotten, Ameen
Bryant, and DaShawn Combs
name="_ftnref2" title="">[2] were also charged in connection with the
robberies. Lotten negotiated a
settlement prior to trial by entering a plea of no contest in counts 2-5. Defendant and Bryant were tried together, with
Bryant charged in counts 1, 4, and 6.
The jury was unable to reach a verdict with respect to Bryant on counts
1 and 4, but he was found guilty in count 6.
Combs was charged in counts 1-4, but the record fails to indicate the
disposition of the charges against him.
contends he was prejudiced by: (1) admission of a minute order containing
Lotten’s no contest plea; (2) use of
Lotten’s admission of the gang enhancement as a basis for
robberies; (4) instructional error; and
(5) cumulative error.
We
affirm the judgment.
name="_ftnref3" title="">[3]
Count 1—Robbery
On
October 2, 2010, at approximately 9:00 p.m., Lucy Ramirez saw three men in
hooded sweatshirts enter the Shell gas station in Paramount, where she worked
as a cashier, and jump over the counter.
The tallest man, a Black male, held a gun to her head and told her to
open the cash register. Ramirez did so,
and he took the money from the register.
The other two men were also looking for money. The robbers also took a carton of cigarettes
and then left the store.
Detective
Mike Davis of the Los Angeles County Sheriff’s Department interviewed Ramirez
after the robberies and showed her a series of 10 to 15 photos of various
men. Ramirez identified defendant as the
lookout and identified Bryant as the robber who took money from the
register. She pointed to defendant’s
picture and described his actions during the robbery. Ramirez was positive when she made her
identifications and demonstrated no difficulty in discerning the different
robbers.
Ramirez
identified defendant and Bryant at the preliminary hearing, but at trial, she
could not identify either of the men.
Ramirez testified that she had told the truth when interviewed by
Detective Davis, and she was positive the men she identified in the photographs
were the man with the gun and the lookout.
Counts 2 and 3—Robbery
Man
Gurang testified that he and Jalal Aranki were working as cashiers at a
7-Eleven store in Artesia on October 2, 2010.
At approximately 9:45 p.m., three or four people entered the store. One displayed a gun and told the cashiers “to
open the cash register and give the money.â€
The robbers went over to Aranki’s register and told him to open it. Aranki opened his register, and the robbers
took the money. One of the robbers told
Gurang to open his register. Gurang did
not want to open it, so he pushed the wrong buttons, causing the register to
lock. The men took the money from
Aranki’s register and ran.
Aranki
testified that three Black men entered the store on the night of the
incident. One of the men produced a gun
and asked for money from his cash register.
Aranki opened the register, and the two other men took money from the
register drawer. Aranki pulled one
robber’s hood down so that he could see the man, but the robber quickly pulled
it up. One of the robbers took some
cigarette lighters, and they left the store quickly.
Detective
Davis interviewed Gurang and Aranki on October 12th or 13th. He showed them a book of photos that included
Bryant, but not defendant. Neither
Gurang nor Aranki was able to make an indentification. They looked at the photos in a cursory manner
and pushed them back toward Detective Davis as if they were not
interested. Detective Davis returned two
weeks later and showed Gurang and Aranki more photos, this time including a
photo of defendant. Gurang identified
defendant and codefendants Bryant and Lotten.
Gurang told Detective Davis he was 80 percent sure of his
identifications of Lotten and Bryant and 60 percent sure of his identification
of defendant. He told Detective Davis
that Lotten was the robber with the gun, Bryant took the money, and defendant
was the lookout. Aranki identified
defendant as the man who stood by the door, and Lotten as the man with the
gun. He was positive that his
identification was correct and told Detective Davis he did not identify anyone
the first time Davis showed him photos because he was afraid.
At
trial, Gurang testified that a detective showed him photos after the robbery,
but he could not remember the robbers’ faces.
Gurang was unsure if he identified anyone to the detective. He denied assigning a percentage value of his
certainty as to the identification of the robbers at the interview. Gurang was not able to identify any of the
robbers at trial. Gurang viewed
surveillance footage of the robbery captured by a video camera installed at the
store and identified it as accurately depicting the robbery. The video was played for the jury.
Aranki
did not identify defendant as one of the robbers at trial but said he thought
Bryant was involved in the incident. He
confirmed that he was able to identify two of the robbers the second time he
met with Detective Davis. He denied
telling Detective Davis that he had not identified the robbers in the first
interview because he was scared. Aranki
described the robber with the gun as being tall, and the robber wearing a green
hood as being close to his height or 5’7†to 5’8†tall. The other robber was a little taller than the
one in the green hood.
Deputy
Luis Reyes Pina viewed the store’s surveillance video tape immediately
following the robbery and took the video into evidence. He testified that at the scene the victims
described the robber with the gun as being 5’11†to 6’ tall, and the other two
men as between 5’5†and 5’8†tall.
Count 4—Robbery
Baljit
Johal was working as a cashier at Cerritos Market on October 2, 2010. At approximately 10:00 p.m., three Black men
entered the market wearing hoodies. Two
of the men approached Johal and told him to open the cash register. Johal opened the register but then closed it
when the men tried to take the money.
When Johal closed the register, one of the robbers, who had a gun, hit
him on the head with something, but Johal was unsure if it was the gun. He shouted for his grandfather, who was
working in the back of the store. When
Johal’s grandfather ran to the front of the store, one of the robbers grabbed
the necklace from Johal’s neck and they left.
After the police arrived, Johal found his necklace on the floor.
At
approximately 9:45 p.m., Deputy Ivan Delatorre responded to the robbery call at
the 7-Eleven store in Artesia. While he
was at the 7-Eleven, he received another call informing him of a robbery at the
Cerritos Market. He responded to the
call at the Cerritos Market, and after speaking with Johal, he determined the
account of the robbery at the Cerritos Market sounded similar to other recent
robberies. Johal told Deputy Delatorre
the robber with a gun hit him on the head with the gun when he closed the cash
register drawer. Johal also recounted
the robber pulled his necklace from his neck as the robbers left. While Deputy Delatorre was at the market,
Johal found the necklace on the floor, near the location where it had been
pulled from his neck.
Detective
Davis interviewed Johal on two occasions after the robbery and showed him
photographs of suspects. During the
first interview, Johal identified codefendants Bryant and Lotten as the
robbers. The photos did not include
defendant. At the second interview,
defendant’s photo was included and Johal identified defendant, as well as
Bryant and Lotten. Johal stated that
Lotten was the robber with the gun, and Bryant demanded money. Detective Davis initially testified Johal
said defendant was the “look out,†but on cross-examination, he corrected
himself and testified that Johal told him defendant was “at the cash register
retrieving money†and Johal did not identify any of the men as a look out. Johal told Detective Davis he was “certainâ€
of his identification.
Johal
did not identify any of the robbers at trial.
He could not remember the details of his identification of suspects with
the police, but he testified that his memory of the events and the
identifications of the perpetrators was fresher when he spoke with the police,
and that he told the police the truth.
Count 6—Street Terrorism
Officer
Armando Leyva of the Los Angeles Police Department testified as a gang expert
on the Avalon Gardens Crips (Avalon Crips).
Avalon Crips is a criminal street gang that engages in burglary,
robbery, assault with deadly weapons, homicide, narcotic sales, and possession
of firearms. Officer Leyva was familiar
with defendant, Lotten, and Bryant as active members of the gang. He viewed videos of robberies around Los
Angeles County from the end of September to the first part of October and
identified members of the Avalon Crips in the videos. Based on his experience with the Avalon
Crips, if Officer Leyva were asked to identify a 5’5†tall Avalon Crips member
who was committing robberies with Lotten, he would identify defendant. Defendant and his father are the only gang
members that Officer Leyva is familiar with who are 5’5†tall. Defendant is of the correct physical
description, age bracket, and was in Lotten’s clique within the Avalon
Crips. Officer Leyva opined the
robberies would benefit the gang by providing monetary gain and increasing the
gang’s standing. He also testified that
in his experience, it is common for witnesses to gang crimes to not want to
testify or to identify gang members out of fear of
Admission of Codefendant’s No Contest Plea
At
trial, the prosecution introduced the minute order of Lotten’s plea of no
contest in counts 2-5, which also contained Lotten’s admission that the charged
offenses were committed for the benefit of a criminal street gang and with the
specific intent to further criminal conduct by gang members. The minute order was offered to establish a
predicate offense by Avalon Crips members for purposes of the gang enhancements
and count 6, as a basis for Officer Leyva’s expert opinion that the charged
offenses would benefit the gang. Officer
Leyva briefly referred to the minute order as a basis for his testimony and
mentioned that he believed the crimes were the ones charged in the present
case. The prosecutor also referred to
the minute order in his closing argument, but the jury was promptly admonished
not to consider the minute order for
improper purposes and was instructed as to the same.
Defendant
contends admission of the minute order was an abuse of discretion because it
was highly prejudicial and had minimal probative value under Evidence Code
section 352. Defendant argues admission
of the minute order prejudiced him because it provided conclusive evidence the
robberies were committed and were gang-related.
He further asserts the jury found him guilty by association with
Lotten. Alternately, defendant contends
that, even if we conclude the claim was forfeited because he failed to raise it
below, such failure constitutes ineffective assistance of counsel and must be
reviewed in that context.
We
hold the issue was forfeited because counsel failed to object on the specific
grounds now raised (see People v. Jones
(2012) 54 Cal.4th 1, 61) but conclude that, regardless, counsel’s performance
was not deficient, nor was defendant prejudiced by counsel’s lack of objection.
“The
Sixth Amendment guarantees competent representation by counsel for criminal
defendants[, and reviewing courts] presume that counsel rendered adequate assistance
and exercised reasonable professional judgment in making significant trial
decisions.†(People v. Holt (1997) 15 Cal.4th 619, 703, citing
668, 690 (Strickland);
513.) “To secure reversal of a
conviction upon the ground of ineffective assistance of counsel under either
the state or federal Constitution, a
defendant must establish (1) that
defense counsel’s performance fell below an objective standard of
reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that
defendant would have obtained a more favorable result absent counsel’s
shortcomings.†(People v. Cunningham (2001) 25 Cal.4th 926, 1003 (
1068 (Kraft).) “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ([Strickland,
supra, at p. 694];
1175.)†(Cunningham, supra, at p.
1003.)
“A defendant who raises the issue [of ineffective
assistance of counsel] on appeal must establish deficient performance based
upon the four corners of the record. ‘If
the record on appeal fails to show why counsel acted or failed to act in the
instance asserted to be ineffective, unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation, the claim must be rejected on appeal.’†(Cunningham,
supra, 25 Cal.4th at p. 1003, citing
evidence is tactical in nature, and a failure to object will seldom establish
ineffective assistance. (
153, 215.) Given the presumption of
reasonableness proper to direct appellate review, our Supreme Court has
“repeatedly emphasized that a claim of ineffective assistance is more
appropriately decided in a habeas corpus proceeding. [Citations.]
The defendant must show that counsel’s action or inaction was not a
reasonable tactical choice, and in most cases ‘“‘the record on appeal sheds no
light on why counsel acted or failed to act in the manner challenged . . .
.’â€â€™ [Citations.]†(People
v. Michaels (2002) 28 Cal.4th 486, 526.)
In
general, evidence is admissible if its probative value is not substantially
outweighed by the probability that it will unduly consume time, “create
substantial danger of undue prejudice,†confuse the issues, or mislead the
jury. (Evid. Code, § 352.) The courts recognize that gang evidence may
have a “highly inflammatory†impact. (
Cal.App.4th 1148, 1167.) Nevertheless,
gang evidence may be admitted “if it is relevant to a material issue in the
case other than character, is not more prejudicial than probative, and is not
cumulative.†(Ibid.)
Evidence
is probative if it “tends ‘logically, naturally, and by reasonable inference’
to establish material facts such as identity, intent, or motive. [Citations.]â€
(People v. Garceau (1993) 6
Cal.4th 140, 177, overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) Evidence is not unduly prejudicial solely
because it implicates the defendant.
“‘[All] evidence which tends to prove guilt is prejudicial or damaging
to the defendant’s case. The stronger
the evidence, the more it is “prejudicial.â€
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.]†(
638.) “[T]he decision on whether
evidence . . . is relevant, not unduly prejudicial and thus admissible, rests
within the discretion of the trial court.â€
(People v. Albarran (2007) 149
Cal.App.4th 214, 224-225.) We therefore
review the trial court’s ruling for abuse of discretion and reverse only
if we conclude it is “reasonably
probable that without the error a result more favorable to defendant would have
occurred.†(People v. Leonard (1983) 34 Cal.3d 183, 189 (Leonard).)
Here,
there is nothing in the four corners of the record to indicate defense
counsel’s motivation for his decision not to object to the evidence, which is
reason enough to reject the issue on direct appeal. Moreover, even if we were to conclude the
issue was preserved for appeal, defendant fails to establish constitutionally
deficient representation because the minute order was not more prejudicial than
probative.
In
this case, there was little room for doubt the robberies occurred or that
Lotten was one of the perpetrators. Four
witnesses testified the robberies occurred, and one of the robberies was
captured by a security video camera.
Three witnesses identified Lotten as the robber with the gun. The minute order provided no link between
defendant and Lotten, nor did it connect defendant to the crime. Absent these links, it only aided the
prosecution’s case by establishing one of the bases for the gang expert’s
opinion that the Avalon Crips had a history of criminal activity, which was a
permissible purpose, as we will discuss below.
Defendant’s association with Lotten was established through Officer
Leyva’s personal knowledge of their relationship and common gang membership,
not through any information contained in the minute order. To the extent that admission of the minute
order could have impacted defendant, it would have affected only issues that
were otherwise well-established and, thus, would not have prejudiced defendant.
Moreover,
the jury was admonished that Lotten’s admissions the robberies were committed
and were gang-related could only be used for the purpose of supporting the gang
expert’s opinion, and that it was not permitted to consider them for any other
purpose. It was also instructed under
Judicial Council of California Criminal Jury Instructions (2011-2012) CALCRIM
No. 1403 that it could “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] . . . charged(;/.)] [¶] OR [¶]
[The defendant had a motive to commit the crime[s] charged[.]] [¶] . . . [¶]
[[The jury was also permitted to] consider this evidence when []
evaluat[ing] the credibility or believability of a witness and when []
consider[ing] the facts and information relied on by an expert witness in reaching
his or her opinion.]†The jury is
presumed to understand and follow the instructions of the trial court. (People
v. Archer (1989) 215 Cal.App.3d 197, 204.)
Absent some affirmative indication in the record to the contrary, we
presume that it did so here. (
662.)
For
these reasons, we conclude, considering the record as a whole, it is not
reasonably probable that without the error a result more favorable to defendant
would have occurred. (See
constitute ineffective assistance.
Use of Codefendant’s Gang Enhancement Admission as a
Basis for Expert Testimony
Defendant
next contends his constitutional right to confront witnesses was violated
because the minute order documenting Lotten’s conviction was testimonial and
deprived him of the opportunity to cross-examine Lotten. He claims that use of the minute order as
basis evidence for gang expert testimony implicated the confrontation clause
because it was offered for the truth of the matter asserted.
We
find no merit in this contention.
Assuming the minute order was testimonial, “the confrontation clause
‘does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.’
(Crawford [
[(Crawford)], citing
414.)†(People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) As defendant concedes, current California
precedent holds basis evidence is not offered for the truth of the matter
asserted. (Ibid.) Regardless, even if
offered for its truth, the minute order was properly admitted as a certified
court record memorializing Lotten’s plea and not as proof of any out-of-court
statements made by Lotten.
name="_ftnref4" title="">[4]
The
confrontation clause provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against
him.†(U.S. Const., 6th Amend.) Testimonial statements may only be admitted
where they are not offered for their truth, or where the witness is unavailable
and the defendant has had an opportunity to cross-examine the witness. (Crawford,
supra, 541 U.S. at pp. 61-68.)
In
California, an expert may testify on the basis of otherwise inadmissible
evidence as long as it meets threshold reliability requirements, and the expert
may describe the evidence that is the basis for his opinion. (People
v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley);
Evid. Code § 801, subd (b).) This is in
accordance with rule 703 of the Federal Rules of Evidence (28 U.S.C.).
are matters which are ‘sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact’ (Evid. Code, § 801, subd. (a)),
opinion testimony from a gang expert, subject to the limitations applicable to
expert testimony generally, is proper.
[Citation.] Such an expert—like
other experts—may give opinion testimony that is based upon hearsay, [or] based
upon the expert’s personal investigation of past crimes by gang members and
information about gangs learned from the expert’s colleagues or from other law
enforcement agencies. [Citations.]†(People
v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) California courts have traditionally held
that basis evidence is properly admitted because it is offered to evaluate the
expert’s opinion and not for its truth.
(Gardeley,
1104, 1131; see also Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because the minute order was basis evidence
not offered for its truth, the confrontation clause was not implicated.
Moreover,
we agree with the prosecution that, to the extent the minute order could be
determined to have been offered for its truth, it was offered for the fact of
Lotten’s conviction and did not deprive defendant of his constitutional right
to confrontation. A certified minute
order is an “official record of conviction†under Evidence Code
section 452.5 and has been held admissible to prove a predicate offense
within the meaning of section 186.22. (
1448, 1459; Evid. Code, § 452.5, subd. (b) [“An official record of conviction
certified in accordance with subdivision (a) of Section 1530 is admissible . .
. to prove the commission, attempted commission, or solicitation of a criminal
offense, prior conviction, service of a prison term, or other act, condition, or
event recorded by the record.â€].)
Regardless of whether Lotten’s admissions were true, the record of his
conviction is a document of the kind upon which an expert may ordinarily rely. The only issue for cross-examination would be
that of authenticity, and as a certified court record, the minute order’s
authenticity was established. (Evid.
Code, § 452.) Accordingly, we conclude
that admission of the minute order as a basis for expert testimony was not an
abuse of discretion. (See
1218, 1223-1225 [“[Records] prepared to document acts and events relating to
convictions and imprisonments . . . are not prepared for the purpose of
providing evidence in criminal trials or for determining whether criminal
charges should issue . . . [and] are beyond the scope of Crawford . . . .â€].)
Evidence of Uncharged Robberies
Before
trial, defense counsel objected to evidence of uncharged robberies committed by
Avalon Crips gang members as unnecessary to the prosecution’s case and unduly
prejudicial under Evidence Code section 352.
The trial court ruled, “I’m not going to allow the robbery evidence in
the other case. I think there’s too much
prejudice that would be used toward the proving of robbery counts in this
case. So I am going to exclude that as
it relates to these defendants. [¶] I’m not going to exclude predicate acts on
the gang allegation, but I don’t want it to be identified that these are the
ones who are committing the robberies.â€
The
prosecutor then inquired about evidence that the gang in general was committing
the crimes: “[T]he fact that members
from this gang were committing robberies, similar type robberies, in other
jurisdictions that are not before this court.
But, again, they were all within L.A. County. But it was the same gang that was
perpetuating these same type of robberies.â€
The
trial court elicited defense counsel’s opinion on admission of the evidence,
and defense counsel responded, “Based on this court’s statement, if my client’s
name is not mentioned, I don’t really have a problem.â€
The
trial court ruled the evidence could be admitted, reiterating, “Now the purpose
is showing they committed this [sic]
robberies because they committed other robberies elsewhere, but you also want
to show that these robberies were committed for the benefit of the gang. Yes, you can show the evidence that the gang
was committing robberies.†The court did not allow the evidence for any other
purpose.
The
prosecutor assured the trial court he would speak to his expert to be certain
he did not reveal that he believed defendants also committed the uncharged
robberies.
A few
days into trial, the prosecution sought to introduce a photo of defendant
obtained in the investigation of the uncharged robberies to show identity,
motive, and a common scheme or plan.
Defense counsel objected, and the trial court denied the request stating
it had already ruled on the issue.
The
prosecution elicited testimony from
Officer Keith Soboleski that he personally investigated other similar robberies
committed by the Avalon Crips and shared the information with Officer Leyva.
Defendant
contends the trial court abused its discretion under Evidence Code section 352
by allowing the prosecution to elicit testimony regarding the facts of the
other uncharged robberies. He asserts
that in the event we conclude the claim was forfeited, we should review it
regardless because trial counsel rendered ineffective assistance by failing to
object below.
We
agree with the prosecution that the claim was forfeited because trial counsel
specifically stated he did not object to admission of the evidence under the
trial court’s limitations. We further
conclude trial counsel did not render ineffective assistance because the
admission of Officer Soboleski’s testimony was not error.
As with defendant’s other
ineffective assistance of counsel claims, there is no evidence on the record to
explain trial counsel’s tactical decision, but even if there were, the evidence
of prior crimes committed by the Avalon Crips is more probative than
prejudicial. The evidence was highly
relevant to establish whether the crimes committed were for the benefit of the
gang, because it tended to show both that the Avalon Crips were involved in
recent crime sprees and were involved in the specific types of crimes charged. From this evidence, the jury could infer that
the present crimes, which were similar in nature, were committed to benefit the
gang. Defendant was not unfairly prejudiced
because no evidence was offered that he was personally involved in the
uncharged crimes. The fact of the
uncharged crimes alone did not tend to prove defendant was a member of the
Avalon Crips alleged to have been involved in the crimes at issue. Independent evidence was offered to establish
defendant was an active Avalon Crips member and was one of the members who
participated in each of the specific crimes charged. Additionally, Officer Soboleski’s testimony was brief and did not include
more detail than necessary to establish the crimes occurred and were committed
by the Avalon Crips. Accordingly,
admission of Officer Soboleski’s testimony was not an abuse of discretion, and
trial counsel’s lack of objection does not constitute ineffective assistance.
Aiding and Abetting Instruction
Defendant
next contends the trial court erred in failing to give an aiding and abetting
instruction. He argues the prosecution’s
evidence supported an inference that he did not directly perpetrate the robberies
but instead aided and abetted by acting as a lookout. Defendant asserts this error allowed the jury
to convict him without proof beyond a reasonable doubt he committed all the
elements of the charged offenses in violation of his rights to due process and
a jury trial.
“Even without a request, a trial
court is obliged to instruct on ‘“general principles of law that are commonly
or closely and openly connected to the facts before the court and that are
necessary for the jury’s understanding of the caseâ€â€™ [citation], or put more
concisely, on ‘“general legal principles raised by the evidence and necessary
for the jury’s understanding of the caseâ€â€™ [citation]. In particular, instructions delineating an
aiding and abetting theory of liability must be given when such derivative
culpability ‘form[s] a part of the prosecution’s theory of criminal liability
and substantial evidence supports the theory.’
[Citation.]†(
488.)
Pursuant
to section 31, “[a]ll persons concerned in the commission of a crime, . . .
whether they directly commit the act constituting the offense, or aid and abet
in its commission, . . . are principals in any crime so committed.†“A person aids and abets the commission of a
crime when he or she, (i) with knowledge of the unlawful purpose of the
perpetrator, (ii) and with the intent or purpose of committing, facilitating or
encouraging commission of the crime, (iii) by act or advice, aids, promotes,
encourages or instigates the commission of the crime.†(People
v. Cooper (1991) 53 Cal.3d 1158, 1164.)
Here,
several witnesses described defendant as the lookout. This evidence could support the theory that
defendant aided and abetted the robberies, rather than directly perpetrating
the crimes, such that the trial court erred in not giving the aiding and
abetting instruction. (See
The error did not lower the prosecution’s burden of proving every
element of the charged offenses and was harmless under both state and federal
constitutional standards.
Contrary to defendant’s assertions,
this case is distinguishable from People
v. Beeman (1984) 35 Cal.3d 547, in which it held that giving an incomplete
aiding and abetting instruction required reversal. In Beeman,
the Supreme court concluded CALJIC No. 3.01 inadequately defined aiding and
abetting because it stated an aider and abettor was liable if he acted to aid
or promote the crime with knowledge of the principal’s unlawful purpose but did
not explain he must have shared the perpetrator’s intent. (Id.
at p. 560.) Here, however, as in
instruction was harmless error because the instructions given expressly
included an intent element. CALCRIM No.
1600 (Robbery), as given to the jury, specifically requires that “[w]hen the
defendant used force or fear to take the property, he intended to deprive the
owner of it permanently . . . . [¶] The defendant’s intent to take the property
must have been formed before or during the time he used force or fear. If the defendant did not form this required
intent until after using the force or fear, then he did not commit robbery.â€
In
this case, as in Delgado, there is
overwhelming evidence in the record supporting the jury’s finding that
defendant was liable as a perpetrator.
Even if the jury had been instructed on aiding and abetting, it would
have merely provided another avenue for defendant’s conviction; it would not
have afforded defendant the possibility of conviction of a lesser charge. (People
v. Campbell (1994) 25 Cal.App.4th 402, 413 [aiding and abetting is not a
separate crime, but an alternate theory of liability].) Thus, the error was harmless under both the
standard articulated in Chapman v.
California (1967) 386 U.S. 18, 24, (requiring reversal unless it appears
beyond a reasonable doubt that the error did not contribute to the jury’s
verdict) and in People v. Watson
(1956) 46 Cal.2d 818, 836 (reversal required if a reasonable probability exists
that the error affected the trial’s outcome).
(See Delgado,
Cumulative Error
Defendant argues the errors alleged,
even if not individually prejudicial, are prejudicial when taken together. There was no cumulative error, as any error
was inconsequential. (See
1075.)
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK,
J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all statutory references are to the Penal Code.
name="_ftn2" title="">[2] Codefendants
are not parties to this appeal.
