Filed 5/29/13 P. v. Rice
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOSEPH RAY RICE,
Defendant
and Appellant.
E055973
(Super.Ct.No.
FVI1002670)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. John
M. Tomberlin, Judge. Affirmed in part;
reversed in part with directions.
Patricia
M. Ihara, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Anthony DaSilva and Randall D. Einhorn, Deputy
Attorneys General, for Plaintiff and Respondent.
A
jury found defendant and appellant, Joseph Ray Rice (defendant), guilty as
charged of first degree murder (Pen.
Code § 187, subd. (a); count 1),
name="_ftnref1" title="">[1] possession of a firearm by a felon (§ 12021,
subd. (a)(1); count 2), and street terrorism (§ 186.22, subd. (a); count
3). The jury also found true the gang (§
186.22, subd. (b)(1)) and firearm use (§§ 12022.5, subd. (a), 12022.53, subds.
(b)-(d)) enhancements alleged in connection with the murder charge alleged in
count 1, and the gang enhancement alleged in connection with the felon in
possession of a firearm charge alleged in count 2. Defendant admitted the allegations that he
had previously been convicted of a serious or violent felony within the meaning
of the three strikes law (§ 667, subds. (b)-(i)), (2)), and a serious
felony (§ 667, subd. (a)(1)), and that he had served a prior prison term
(§ 667.5, subd. (b)). The trial
court sentenced defendant to serve a determinate term of 15 years to life in
state prison, followed by an indeterminate term of 75 years to life.
Defendant raises
three claims of error in this appeal.
First, he contends the evidence is insufficient to support the street
terrorism charge and the gang enhancements because the prosecutor failed to
present evidence to prove an element of both the crime and the enhancement,
namely the gang’s primary criminal activities. Second, defendant contends he was denied the
effective assistance of counsel at trial.
Finally, defendant contends, and the Attorney General concedes, that the
trial court improperly imposed sentence enhancements under sections 667 and
667.5 for the same offense.
We agree with
defendant’s first claim of error and, therefore, will reverse his street
terrorism conviction as alleged in count 3, and will strike the gang
enhancements alleged in connection with counts 1 and 2. We further conclude that the Attorney General
has appropriately conceded the trial court incorrectly stayed the one-year
prior prison term enhancement; it should have stricken that enhancement.
The
facts are undisputed. Around midnight on
November 19, 2010, defendant was outside in the patio area of a nightclub in
Victorville. A security camera videotape
showed defendant looking in the direction of Delvon Williams. After about five minutes, defendant looked as
if he was angry. He walked over to
Williams, extended his hand up to Williams’s head, and fired a single
shot. Williams fell backward. Security videotape showed that defendant
immediately left the nightclub. Williams
died as a result of the gunshot.
By the time he was
arrested in March 2011, in Lynwood California, defendant had altered his
appearance by shaving his head. In the
nightclub videotape, defendant had long hair, pulled into a ponytail. When interviewed in connection with his
arrest, defendant acknowledged he had been an East Side Inland Empire (I.E.)
Gangster Crip since he was 13 years old.
Defendant also said he did not know Williams but that his friend and
Williams had gotten into an argument during which Williams said he was a “Piruâ€
or “Blood,†and he would handle his business.
Defendant thought to himself, “fuck that,†after which he walked over
and shot Williams in the head.
Defendant
contends, as previously noted, that the evidence was insufficient to prove that
the East Side I.E. Gangster Crips is a criminal street gang. A criminal street gang is defined in section
186.22, subdivision (f), as “any ongoing organization, association, or group of
three or more persons, whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision
(e), having a common name or common identifying sign or symbol, and whose
members individually or collectively engage in or have engaged in a pattern of
to present evidence to prove that one of the primary activities of the East
Side I.E. Gangster Crips is the commission of one or more of the enumerated
crimes. We agree.
Standard of Review
“In
addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] The appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence. [Citations.] The same standard applies when the conviction
rests primarily on circumstantial
evidence. [Citation.]†(People
v. Kraft (2000) 23 Cal.4th 978, 1053.)
“The phrase ‘primary
activities,’ as used in the gang statute, implies that the commission of one or
more of the statutorily enumerated crimes is one of the group’s ‘chief’ or
‘principal’ occupations. (See Webster’s
Internat. Dict. (2d ed. 1942) p. 1963 [defining ‘primary’].) That definition would necessarily exclude the
occasional commission of those crimes by the group’s members.†(People
v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary
activities might consist of evidence that the group’s members
committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as
occurred in [People v.]
the gang of which defendant Gardeley had for nine years been a member was
primarily engaged in the sale of narcotics and witness intimidation, both
statutorily enumerated felonies. (See §
186.22, subd. (e)(4) & (8).) The
gang expert based his opinion on conversations he had with Gardeley and fellow
gang members, and on ‘his personal investigations of hundreds of crimes
committed by gang members,’ together with information from colleagues in his
own police department and other law enforcement agencies. [Citation.]â€
(Id. at p. 324.)
In this case, the evidence
the prosecutor presented to prove the elements of the section 186.22,
subdivision (a), street terrorism substantive crime, and the sentence
enhancements under subdivision (b)(1) of that section consists of the testimony
of San Bernardino City Police Officer Nick Oldendorf, a gang expert. Among other things, the prosecutor asked Officer
Oldendorf whether the East Side I.E. Gangster Crips have a primary purpose, and
the officer responded, “A gang is defined as three or more people with a common
sign or symbol that collectively or individually engage in a pattern of
criminal activity under Penal Code Section 186.22. Under 186.22 there are certain crimes that
are listed. Among those are aggravated
assaults, robberies, shootings, narcotics trade, grand theft auto, numerous
violent crimes that we have to prove are a pattern of a certain gang’s criminal
activity. [¶] Some of the more recent arrests have been for
cocaine for sales, Penal Code Section 11351.5; PCP for sales. I believe it’s Penal Code Section 11351; the
shooting at occupied dwellings, Penal Code Section 246.3; possession of weapons
[sic] by convicted felons, Penal Code
Section 12021(a); PC 187, murder.
Some of those have been the most recent activity that members of East
Side I.E. have been located, prosecuted, arrested and convicted of.â€
In addition to testifying
that defendant was a member of the East Side I.E. Gangster Crips, and that
defendant had previously been convicted of attempted robbery, Officer Oldendorf
also testified that Theophilius Cobbs and Matthew Manning were members of the
East Side I.E. Gangster Crips, and both had been involved in shooting at an
inhabited dwelling. In June 2009,
Manning was convicted of that crime, and Cobbs was convicted of being a felon
in possession of a firearm. Officer
Oldendorf also identified Bryson Herbey as a member of the East Side I.E.
Gangster Crips, who had been convicted in June 2006 of possessing cocaine base
for sale in violation of section 11351.5. In addition, Officer Oldendorf identified
Daveon Keel as a member of the East Side I.E. Gangster Crips, who had been
convicted of murder in July 2005.
The testimony
quoted above shows, although the prosecutor asked the right question, i.e.,
what is the primary purpose of the East Side I.E. Gangster Crips, Officer
Oldendorf did not answer that question.
Instead, he purported to recite the statutory definition of a criminal
street gang, but his definition was incomplete because it left out the primary
activities element. Officer Oldendorf’s
recitation of “some of the more recent arrests†of the East Side I.E. Gangster
Crips did not include any details about the crimes, such as when, where, and by
whom the crime was committed, or any explanation about how he acquired his
information. As a result, that testimony
lacked an adequate foundation. “‘The
requirements for expert testimony are that it relate to a subject sufficiently
beyond common experience as to assist the trier of fact and
upon by an expert in forming an opinion on the subject to which his or her
testimony relates.
[Citations.]’ [Citation.]†(In re
Alexander L. (2007) 149 Cal.App.4th 605, 612.) More importantly, by saying that “[s]ome of
those†crimes were the most recent activity of the East Side I.E. Gangster
Crips, Officer Oldendorf left the jury to speculate about which crimes the
gang’s members had actually committed.
In order to prove
the primary activity element, it is not enough to show that members of a
purported criminal street gang commit various crimes. The primary activities element requires proof
that members have consistently and repeatedly committed one or more of the
statutorily enumerated crimes so that the jury then is able to draw the logical
inference that commission of that crime, or those crimes, is the primary or
chief occupation, or activity, of the group.
Officer
Oldendorf’s only other testimony, although sufficient to prove the required
pattern of gang activity,
name="_ftnref3" title="">[3] does not establish the primary activity
element. That testimony shows that
between 2005 and 2009, East Side I.E. Gangster Crip members committed various
crimes. That testimony does not show
that gang members have consistently and repeatedly engaged in the particular
criminal activity listed in the statute.
Even if we consider the charges pending against defendant in this case,
the evidence shows that once in 2009 and again in 2010 members of the East Side
I.E. Gangster Crips committed the crime of being a felon in possession of a
firearm, and once in 2005 and again in 2010 members committed the crime of
murder. That evidence is insufficient to
show the requisite consistent and repeated commission of a crime or crimes
listed in section 186.22, subdivision (e), and therefore does not establish the
primary activities of the criminal street gang element in section 186.22,
subdivision (f).
Apart from the
testimony previously recited, Officer Oldendorf testified in the context of
describing the territory of the East Side I.E. Gangster Crips, that “[d]owntown
[San Bernardino] was a hotbed for East Side I.E. The downtown drug trade and drug market was a
lucrative business, so a lot of them would congregate downtown to the local
motels, and they have been arrested downtown in that area.†The Attorney General contends the quoted
testimony is sufficient to support the inference that East Side I.E. Gangster
Crips repeatedly and continuously engaged in the crime of selling
narcotics. We do not share that view.
The noted
testimony that members congregated downtown because the drug trade was
lucrative arguably supports a reasonable inference that members of the East
Side I.E. Gangster Crips have engaged in the sale of narcotics. However, that testimony does not include any
details and, therefore, does not establish the frequency with which members
engaged in that criminal activity. The
additional fact that members have been arrested in the area of downtown does
not aid the analysis because that fact not only fails to establish the
frequency of such arrests, but also does not specify the crimes for which
members were arrested. In other words,
this testimony does not support a reasonable inference that the East Side I.E.
Gangster Crips repeatedly and consistently engaged in the sale of controlled
substances, a crime listed in section 186.22, subdivision (e)(4), such that the
jury, in turn, could infer that the commission of that crime is one of the
primary activities of that group.
In summary, we
conclude the evidence is insufficient to show that one of the primary
activities of the East Side I.E. Gangster Crips is the commission of one of the
statutorily enumerated crimes. That
conclusion, in turn, requires us to conclude the prosecutor failed to prove
that the East Side I.E. Gangster Crips is a criminal street gang within the
meaning of section 186.22, subdivision (f).
Because the prosecutor failed to prove that the East Side I.E. Gangster
Crips is a criminal street gang, we will reverse defendant’s conviction on
count 3, the charge that defendant engaged in street terrorism in violation of
section 186.22, subdivision (a). We will
also strike the jury’s true findings on the so-called gang enhancements under
section 186.22, subdivision (b)(1), alleged in connection with count 1 and
count 2.
Defendant
contends he was denied the effective
assistance of counsel at trial because his attorney (1) failed to object
under Evidence Code section 352 that the probative value of defendant’s prior
robbery conviction in establishing the pattern of criminal gang activity, was
outweighed by its potential for undue prejudice; (2) failed to object to
various documents, including probation reports, introduced into evidence as
part of the evidence offered to prove defendant, Cobbs, Manning, Herbey, and
Keel had committed crimes while members of the East Side I.E. Gangster Crips;
(3) failed to assert a hearsay objection to the
Oldendorf; and (4) failed to request a limiting instruction on the gang
evidence.
Standard of Review
In
order to establish a claim of ineffective assistance of counsel, defendant must
“demonstrate (1) counsel’s performance was deficient in that it fell below an
objective standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient representation prejudiced the defendant, i.e., there is
a ‘reasonable probability’ that, but for counsel’s failings, defendant would
have obtained a more favorable result.
[Citations.] A ‘reasonable
probability’ is one that is enough to undermine confidence in the outcome. [Citations.]â€
(People v. Dennis (1998) 17
Cal.4th 468, 540-541, citing, among other cases, Strickland v.
Analysis
Defendant’s
ineffective assistance of counsel claims all relate to the street terrorism
charge and gang enhancements. Because we
are reversing that conviction and those true findings, his claims arguably are
irrelevant. However, defendant contends
that his attorney’s purported oversights were prejudicial because the jury
could have considered the evidence, all of which suggested defendant was a
person of bad character, in finding the murder was premeditated and
deliberate. We disagree.
We
will not address the performance component of defendant’s ineffective
assistance of counsel claim—although “a mere failure to object to evidence or
argument seldom establishes counsel’s incompetence†(People v. Ghent (1987) 43 Cal.3d 739, 772)—because it is easier to
dispose of defendant’s claim on the ground of lack of sufficient
prejudice. (See Strickland v. Washington, supra,
466 U.S. at p. 697 [“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so,
that course should be followedâ€].)
Defendant
concedes, as he must, that there was no issue in this case regarding the
identity of the person who shot and killed Williams. As defendant puts it, “this was not a
‘who-done-it’ [sic].†He contends the issue before the jury
concerned whether the murder was committed for the benefit of a criminal street
gang, and whether it was premeditated.
The first issue is irrelevant for reasons previously discussed. But defendant has not demonstrated anything
more than speculation regarding the second issue.
Defendant
contends the evidence of premeditation and deliberation was weak. We do not share that view. As the trial court instructed the jury in
this case, deliberation requires proof defendant “carefully weighed the
considerations for and against his choice and, knowing the consequences, decided
to kill. The defendant acted with
before completing the act that caused death.
[¶] The length of time the person
spends considering whether to kill does not alone determine whether the killing
is deliberate and premeditated. The
amount of time required for deliberation and premeditation may vary from person
to person and according to the circumstances.
A decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated. On the other hand, a cold, calculated
decision to kill can be reached quickly.
The test is the extent of reflection, not the length of time.â€
In
this case, the security videotape and defendant’s statement to the police
demonstrate that defendant considered whether to shoot Williams before he
actually walked over and pulled the trigger.
More particularly, the evidence of premeditation and deliberation
consists of defendant’s statement that after Williams and defendant’s friend
got into an argument, defendant thought “fuck that†to himself, and then walked
over and shot Williams in the head.
Defendant does not cite this evidence, least of all discuss its
significance. Instead, he speculates
that the jury based its finding that defendant acted with premeditation and
deliberation on the purportedly inadmissible evidence of defendant’s bad
character. Defendant simply has not
demonstrated the prejudice requirement of his ineffective assistance of counsel
claim. In short, we conclude it is not
reasonably probable, assuming the challenged evidence was inadmissible and,
therefore, not introduced at trial, that the jury would have reached a result
more favorable to defendant on the murder charge.
The
judgment is modified as follows:
Defendant’s
conviction on count 3, the crime of street terrorism in violation of section
186.22, subdivision (a), is reversed with directions to dismiss that charge
based on insufficiency of the evidence.
The
sentence enhancements imposed under section 186.22, subdivision (b)(1), on the
first degree murder conviction in count 1 and the conviction for being a felon
in possession of a firearm in count 2 are stricken.
The
one-year prior prison term enhancement imposed under section 667.5, subdivision
(b), is stricken.
Except
as modified, the judgment is affirmed.
The
trial court is directed to prepare an amended abstract of judgment that
accurately reflects defendant’s sentence as modified and forward a copy of that
amended abstract to the appropriate agencies and entities.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless indicated otherwise.
name="_ftn2" title=""> [2] Defendant contends the abstract of judgment
and clerk’s minute order incorrectly describe his sentence as being a term of
90 years to life. Although we do not
share defendant’s characterization of the error, we will not address the issue
because our resolution of this appeal will require the trial court to prepare
an amended abstract of judgment in this case.
