P. v. McClelland

 

 

 

 

Filed 1/24/14  P. v.
McClelland CA2/4

 

 

 

 

 

 

 

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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

 
>

THE PEOPLE,             Plaintiff and Respondent,             v.   ANDRE MCCLELLAND,             Defendant and Appellant.

B242634         (href="http://www.fearnotlaw.com/">Los Angeles County            Super. Ct. No. BA377622)

 

          APPEAL
from a judgment of the Superior Court of
Los Angeles County, Robert J. Schuit and Drew E. Edwards, Judges.  Affirmed.

          Elizabeth
Garfinkle, 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,
Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff
and Respondent.

 

________________________________

> 

> 

INTRODUCTION

Andre McClelland appeals
from his conviction, following a jury
trial, of second degree robbery.  He
contends (1) there was insufficient evidence to support the gang enhancement,
(2) the trial court erred in allowing a gang expert to give opinions
unsupported by evidence presented at trial, and (3) he received ineffective
assistance of counsel.  Finding no error,
we affirm.

>PROCEDURAL HISTORY

          On July 5, 2011, a jury found appellant guilty of
second degree robbery (Pen. Code, § 211).href="#_ftn1" name="_ftnref1" title="">^[1]  It also found true the allegation that a
principal in the offense was armed with a firearm (§ 12022, subd. (a)(1)),
and that the crime was committed for the benefit of a criminal street gang with
the specific intent to promote, further, and assist in criminal conduct by gang
members (§ 186.22, subd. (b)(1)). 
In a bifurcated proceeding, the trial judge found true the allegation
that appellant had suffered a prior conviction within the meaning of sections
667, subdivision (a)(1), 667.5, subdivision (b), and the “Three Strikes” law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). 

After trial counsel was
discharged and a public defender appointed, new counsel filed a motion for a href="http://www.fearnotlaw.com/">new trial on the grounds of ineffective
assistance of prior counsel.  The trial
court denied the motion.  The court then sentenced
appellant to a total of 21 years in prison, consisting of the midterm of three
years for the robbery conviction, doubled to six years as a second strike, plus
10 years consecutive for the gang enhancement and five years for the section
667, subdivision (a)(1) enhancement.  Appellant
timely appealed. 

FACTUAL BACKGROUND

          On October 27, 2010, at around 2:00
p.m., Kristopher Sallico was robbed at his drycleaning business by two
men.  He identified the robbers as
appellant and codefendant LeAndre Hebrard, whom he knew as “4-Leaf” and
“Touche,” respectively.href="#_ftn2"
name="_ftnref2" title="">^[2]  The men were friends of Sallico’s son, and he
had spoken with them “numerous” times, mainly to advise them to become
productive citizens.  When appellant and Hebrard
entered his drycleaning business, Sallico approached them.  Appellant said to Sallico, “Pops, give me the
money.”  Sallico replied, “Are you
joking?”  Hebrard, who was standing about
three feet behind appellant, lifted his shirt and showed Sallico the handle of
a handgun.  Sallico became frightened and
walked to the cash register.  He took out
the money and gave it to appellant. 
Appellant and Hebrard walked out, got into a car, and drove away.  

After the men left, Sallico
tried to contact his son but could not reach him.  About an hour later, he called the
police.  When the police arrived, Sallico
told an officer that he had been robbed by two Black men who were Rolling 40’s
gang members.  He identified the first
man as “4-Leaf” and the second man as “Touche.” 
Later that day, Sallico positively identified appellant and Hebrard as
the robbers in a six-pack photographic lineup.  He also identified appellant and Hebrard as
the robbers at the preliminary hearing and at trial.    

At trial, Sallico testified
he believed that appellant and Hebrard were affiliated with a gang.  The area surrounding his store was a gang
area, and gang members had repeatedly “tagg[ed]” his door and walls.  Sallico testified that two months after the
robbery, he sold the business and moved out of Los Angeles because he “wanted to get
[his] family and [his] son away from this environment.”  He also testified his son was a friend of the
robbers, he was “unhappy with my son being affiliated with gangs,” and he
wanted to get his son away from “the gang and the lifestyle.”   

Los Angeles Police Department
Officer Guillermo Espinoza testified as the prosecution’s gang expert.  Officer Espinoza had worked in the gang
enforcement unit for approximately four and a half years.  His duties were to “monitor” and “suppress”
“the criminal activities of the Rolling 40’s Crips criminal gang.”  As part of his work, he had daily contact with
members of the gang.  Officer Espinoza
also had investigated gang-related crimes, including incidents where Rolling
40’s gang members were suspects and victims. 


Officer Espinoza testified
that the Rolling 40’s Neighborhood Crips is a criminal street gang with about
850 members.  Gang members have particular
symbols, clothing, and tattoos they use to identify themselves.  The primary activities of the gang include
murder, shootings, robberies, assault, and drug sales.  According to Officer Espinoza, gang members
need to put in “work” -- committing crimes for the gang -- to “keep their name
or status elevated.”  Officer Espinoza
stated that Sallico’s business was in Rolling 40’s territory, and Sallico was
the father of a Rolling 40’s gang member. 
From previous contacts with appellant, Officer Espinoza knew him as a
self-admitted Rolling 40’s gang member who had gang tattoos and was known by
his gang moniker “4-Leaf.”  Similarly,
Officer Espinoza knew Hebrard as an active Rolling 40’s gang member.  Officer Espinoza stated that he knew “[Hebrard]
was living in his mother’s house which is outside of [the Rolling 40’s] gang
territory and actually in . . . rival gang territory.”  He explained that “because [Hebrard] has
family members that are part of that rival gang, they allow him to stay there
without any repercussion.” 

Given a hypothetical fact
pattern based on the facts of this case, Officer Espinoza opined that the
robbery was committed for the benefit of a criminal street gang, the Rolling 40’s.  He explained that gang members commit robberies
to generate income and to instill fear in the community.  The fear deters victims from reporting the
crimes to the police.  It also helps the
gang recruit new members. 

On cross-examination, appellant’s
counsel elicited testimony from Officer Espinoza that it was “unusual” for a
member of a gang to go out and rob the business of the father of a fellow gang
member.  Officer Espinoza stated that his
last contact with Hebrard was about a year to 18 months ago.  He also was aware that Hebrard had testified
as a prosecution witness against another Rolling 40’s gang member in a murder
case in 2009, which is not acceptable within gang culture. 

On redirect examination,
over defense objections, Officer Espinoza testified that gang members looked down
on members who attempt to leave the gang. 
These members could be disciplined, beaten up, or killed.  When a gang member leaves the gang, his
family also may be targeted.  Officer
Espinoza also testified that discouraging people from joining a gang is seen as
“disrespecting” the gang.

The prosecutor then asked
the officer:  “Have any of the questions
and answers that people have given today, did they change your opinion about
whether the hypothetical of two active members of the Rolling 40’s going into a
dry cleaner located in . . . Rolling 40’s territory,
committing a robbery with a gun, has it changed your opinion whether that was
done with the specific intent to promote gang membership or to benefit the
criminal street gang known as the Rolling 40’s?”  Officer Espinoza answered, “No, it has
not.”  Officer Espinoza reiterated that “my
opinion is that they have committed this robbery for the benefit of their
gang.” 

Appellant did not
testify.  Britney Jones, who had been
dating appellant at the time of the robbery, testified that she and appellant were
together the afternoon of the robbery.  Later
that night, they went to a movie together in Culver City.  According to Jones, they were never apart for
more than 15 minutes, and were never in the area near the victim’s store. 

>DISCUSSION

          Appellant
contends (1) there was insufficient evidence to support the gang enhancement
allegation, (2) the trial court abused its discretion in permitting the
prosecution’s gang expert to opine on hypotheticals not supported by the
evidence, and (3) he received constitutionally ineffective assistance of
counsel when his trial counsel failed to seek an admonishment or move for a
mistrial after counsel’s evidentiary objection had been sustained. 

          A.      Sufficiency
of the Evidence

Appellant contends the
evidence was insufficient to establish that appellant committed the robbery to
benefit or in association with the Rolling 40’s gang, or with the specific
intent to assist gang members.  “In
determining whether the evidence is sufficient to support a conviction or an
enhancement, ‘the relevant question is 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.’  [Citations.]  Under this standard, ‘an appellate court in a
criminal case . . . does not ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt.’  [Citation.]  Rather, the reviewing court ‘must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence -- that is, evidence which is
reasonable, credible, and of solid value -- such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.’  [Citation.] 
This standard applies to a claim of insufficiency of the evidence to
support a gang enhancement.  [Citation.]”
 (People
v. Vy (2004) 122 Cal.App.4th 1209, 1224, italics omitted.)  Expert testimony may be used to prove the elements
of a gang enhancement allegation.  (See,
e.g., People v. Williams (2009) 170
Cal.App.4th 587, 621; People v. Martinez
(2008) 158 Cal.App.4th 1324, 1332-1333.)

          Here,
the jury found true the allegation that appellant committed the robbery for the
benefit of a criminal street gang within the meaning of section 186.22,
subdivision (b)(1)(C).  “The section
186.22(b)(1) enhancement requires the jury to find that the crime was committed
for the benefit of a criminal street gang and with the specific intent to
promote the criminal street gang.”  (>People v. Ramon (2009) 175 Cal.App.4th
843, 849.)  We conclude that substantial
evidence supports the jury’s findings that the crime was committed for the benefit
of the Rolling 40’s gang, and that appellant had the specific intent to promote
the gang when he robbed Sallico.  The
crime was committed by acknowledged Rolling 40’s gang members in territory
claimed by the gang.  The crime victim
told the police he had been robbed by Rolling 40’s gang members.  Officer Espinoza opined that the robbery
increased the community’s fear of the Rolling 40’s gang, and that the gang
would benefit from community members’ fear and reluctance to report crimes
committed by gang members.  As our
Supreme Court has observed, “[e]xpert opinion that particular criminal conduct
benefited a gang by enhancing its reputation for viciousness can be sufficient
to raise the inference that the conduct was ‘committed for the benefit of . . . a[]
criminal street gang’ within the meaning of section 186.22(b)(1).”  (People
v. Albillar (2010) 51 Cal.4th 47, 63; accord People v. Gardeley (1996) 14 Cal.4th 605, 619 [from expert
testimony that assault was “‘classic’” gang activity that frightened residents
and secured gang’s drug-dealing stronghold in the area, jury could reasonably
conclude charged offense was committed for benefit of gang and with specific
intent of promoting its criminal activities under § 186.22, subd. (b)(1)]; >People v. Vazquez (2009) 178 Cal.App.4th
347, 351, 354 [reasonable jury could infer from expert testimony that violent
crimes increased respect for gang and intimidated neighborhood residents, and
from other evidence in record that murder was committed with specific intent to
promote gang’s criminal activities]; People
v. Ferraez (2003) 112 Cal.App.4th 925, 930- 931 [jury could reasonably
infer crime was gang-related from expert testimony coupled with other
evidence].)

Appellant contends that Officer
Espinoza’s opinion that the crime was gang-related was not based upon a
proposed hypothetical closely matching the evidence presented in the case.  According to appellant, the hypothetical presented
to Officer Espinoza failed to include the facts that the robbery was committed
against the family business of a gang member, and that Hebrard was a “snitch”
at the time of the crime.  Appellant’s
argument fails.  These facts were
elicited during cross-examination, but on re-direct examination Officer
Espinoza reaffirmed his opinion that the crime was gang-related.  In short, there was sufficient evidence to
support the gang enhancement.

B.      Gang Expert Testimony

Appellant next contends
the trial court abused its discretion in allowing Officer Espinoza to opine on
hypotheticals or about facts not supported by evidence presented at trial.  We disagree. 


In rendering his or her
opinions, a gang expert may rely upon personal conversations with gang members,
personal investigation of crimes committed by gang members, and information
obtained from the expert’s own colleagues and other law enforcement agencies.  (People
v. Gardeley, supra, 14 Cal.4th at p. 620; People v. Hill (2011) 191 Cal.App.4th 1104, 1124-1125 [same]; >People v. Duran (2002) 97 Cal.App.4th
1448, 1463-1464 [same].)  Here, it is undisputed
that based upon his work experience and his personal contacts with the
defendants, Officer Espinoza was qualified to testify about the Rolling 40’s
gang and its gang members.  

Appellant first contends
that no evidence supported Officer Espinoza’s opinion that Hebrard was an
active gang member at the time the robbery was committed.  (See People
v. Valdez (1997) 58 Cal.App.4th 494, 506 [defendant’s membership in a gang is
a proper subject of expert testimony].) 
Officer Espinoza’s testimony was supported by his personal contacts with
Hebrard, the last of which occurred within months of the crime.href="#_ftn3" name="_ftnref3" title="">^[3]  In addition, there was undisputed evidence
that Hebrard was armed with a handgun and in the company of an active Rolling
40’s gang member in the gang’s territory. 
A reasonable jury could infer from this evidence that Hebrard was an
active gang member.  As for the fact that
Hebrard had moved away and was living in a rival gang’s territory, the jury was
presented with a reasonable explanation -- Hebrard was living with his mother,
and he had no fear about repercussions because he had family members in that
rival gang.  As for the fact that Hebrard
had testified against a Rolling 40’s gang member, no evidence was presented
that Hebrard was known as a “snitch.” 
Rather, the fact that Hebrard was present with a Rolling 40’s gang
member in the gang’s territory suggested he was not a known snitch, or that he
had been forgiven by the gang.  In short,
there was no abuse of discretion in allowing Officer Espinoza to opine that
Hebrard was an active Rolling 40’s gang member.  

Appellant next contends
that Officer Espinoza’s testimony that the Rolling 40’s gang would benefit when
gang members’ crimes went unreported was speculative, as no evidence other than
Officer Espinoza’s statements was presented that crime victims do not report
gang crimes.  Officer Espinoza’s
statements, however, were based upon his years of working in the gang
enforcement unit, monitoring and investigating the Rolling 40’s gang and its
members.  Moreover, the officer’s
testimony that a criminal street gang would benefit when victims of the gang’s
crimes were too intimidated to report them is reasonable, logical, and
self-evident.  

Appellant also challenges
Officer Espinoza’s testimony about how the crime benefitted the gang, arguing
that no evidence was presented that robbing a gang member’s family business was
done to benefit the gang.  We
disagree.  Sallico had testified that he
wanted his son to leave the gang, and had encouraged appellant to become a
productive citizen.  After the robbery, he
sold his business and moved his family out of Los Angeles to get away from the
gang.  Officer Espinoza testified that
encouraging people to leave a gang would be seen as “disrespecting” the
gang.  Thus, the evidence tended to show
that the robbery was intended to intimidate Sallico and to discourage him from
advising gang members to leave the gang. 


Appellant further contends
that the trial court improperly allowed Officer Espinoza to testify on redirect
examination about the possible repercussions that a member attempting to leave
a gang could suffer, as there was no evidence that anyone was attempting to
leave the Rolling 40’s gang.  That
testimony, however, was relevant to explain or rebut adverse testimony and
inferences developed during cross-examination. 
(See People v. >Cleveland (2004) 32 Cal.4th 704,
746 [redirect examination’s “‘principal purposes are to explain or rebut
adverse testimony or inferences developed on cross-examination . . . .’”].)  On cross-examination, Hebrard’s attorney had
elicited testimony suggesting that as Hebrard was no longer living in the
Rolling 40’s gang’s territory at the time of the crime, he was no longer an
active member of the gang.  Evidence
tending to show the disincentives for leaving a gang was relevant to rebut this
inference.  In short, the trial court did
not abuse its discretion in allowing the gang expert’s testimony on redirect
examination. 

Finally, appellant
contends that on redirect examination, Officer Espinoza’s opinion that “they
have committed this robbery for the benefit of their gang” was about the defendants
-- as opposed to hypothetical gang members. 
We disagree with this interpretation of the officer’s testimony.  In context, the officer was referring to the
hypothetical Rolling 40’s gang members.    

C.      Ineffective Assistance of
Counsel

During redirect
examination, the prosecutor asked Sallico why he decided to call the
police.  Sallico responded: 

“Because I thought -- I
felt as if 4-Leaf and Touche, I felt like I counseled them and talked to them a
lot of times.  Touche one time with a job
that he had, a job offer, and I sat him down in the back and said, ‘Touche,
man, you should take the job.  It’s a
good job.  It will change your life.  You’re gonna start feeling so much better
about yourself.’  He didn’t take the job.  And 4-Leaf, when he first got out of jail --”


Appellant’s counsel immediately
objected to the testimony as irrelevant and inadmissible under Evidence Code
section 352.  The trial court sustained
the objection, but did not explicitly order Sallico’s testimony stricken.  Appellant now contends that Sallico’s “jail”
comment was prejudicial per se.  In
addition, he contends his trial counsel rendered ineffective assistance by failing
to seek an admonishment or move for a mistrial. 
We disagree.

          “A
witness’s volunteered statement can, under some circumstances, provide the
basis for a finding of incurable prejudice.” 
(People v. Ledesma (2006) 39 Cal.4th
641, 683.)  However, even knowledge that a
defendant previously has been convicted and is being retried is not necessarily
incurably prejudicial.  (>Ibid.) 
Rather, “[w]hether a particular incident is incurably prejudicial is by
its nature a speculative matter, and the trial court is vested with
considerable discretion” in determining whether a new trial is required.  (People
v. Haskett (1982) 30 Cal.3d 841, 854.) 
People v. Bolden (2002) 29
Cal.4th 515 is instructive.  There, the
prosecutor asked a police officer about the defendant’s address.  The officer answered:  “‘It was at the Department of Corrections
parole office located at--,’” before he was interrupted by the prosecutor.  (Id.
at p. 554.)  The trial court did not
specifically order the testimony stricken. 
Later that day, the defendant moved for a mistrial, which was
denied.  In affirming the denial, the
Supreme Court held that “[t]he incident was not significant in the context of
the entire guilt trial, and the trial court did not abuse its discretion in
ruling that defendant’s chances of receiving a fair trial had not been
irreparably damaged.”  (>Id. at p. 555.)  Likewise, here, the singular mention that
appellant had gotten out of jail without further details was not significant in
the context of the trial, which revolved around the identification by
Sallico.  Moreover, any error was
harmless.  (See People v. Garcia (1984) 160 Cal.App.3d 82, 93, fn. 12
[“[I]n cases where jurors are improperly exposed to certain factual matters,
the error is usually tested under the standard set out in People v. Watson (1956) 46 Cal.2d 818, 836.”].)  Sallico positively and consistently
identified appellant, whom he knew, as one of the robbers.  Under these circumstances, it is not
reasonably probable that appellant would have obtained a more favorable result
had the incidental remark not been made.  (Cf. People
v. Harris (1994) 22 Cal.App.4th 1575, 1580-1582 [in light of overwhelming
evidence of guilt, no reversible error where witness mentioned appellant’s
parole status].)   

In order to prevail on a
claim of ineffective assistance of counsel, appellant must show (1) that his
trial counsel’s representation fell below an objective standard for
reasonableness under prevailing professional norms; and (2) that there was a
reasonable probability that but for counsel’s unprofessional errors, the result
would have been more favorable to the defendant.  (Strickland
v. Washington (1984) 466 U.S. 668, 687-688; People v. Gray (2005) 37 Cal.4th 168, 206-207; People v. Kelly (1992) 1 Cal.4th 495, 519-520.)  “In demonstrating prejudice, however, the
petitioner must establish that as a result of counsel’s failures the trial was
unreliable or fundamentally unfair.”  (>In re Visciotti (1996) 14 Cal.4th 325,
352.)  Here, appellant has shown no
prejudice resulting from his counsel’s failure to seek an admonishment or to
move for a mistrial.  The court
instructed the jury at the conclusion of the trial that, “[d]uring the trial,
the attorneys may have objected to questions or moved to strike answers given
by the witnesses.  I ruled on the
objections according to the law.  If I
sustained an objection, you must ignore the question.  If the witness was not permitted to answer, do
not guess what the answer might have been or why I ruled as I did.  If I order[ed] testimony stricken from the
record, you must disregard it and must not consider that testimony for any
purpose.”  (See CALCRIM No. 222.)  Despite the court’s failure to strike the
brief reference, it is fair to assume that the jury understood from the court’s
sustaining defense counsel’s objection that the testimony was not properly
before it.  (People v. Sanchez (2001) 26 Cal.4th 834, 852 [jury is presumed to
follow court’s instructions].)  More
important, for the reasons discussed above, the singular mention that appellant
had been in jail was not significant in the context of the trial, and did not
render the trial unreliable or fundamentally unfair.  In light of the strong eyewitness testimony by
Sallico, appellant cannot show that he would have attained a more favorable
result absent counsel’s alleged error.  (>People v. Cunningham (2001) 25 Cal.4th
926, 1003.) 

>DISPOSITION

          The
judgment is affirmed.

 

          NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.

 

 

 

                                                                             MANELLA,
J.

 

We concur:

 

 

 

EPSTEIN, P. J.                                                    

 

 

 

WILLHITE, J.