P. v. Smith
Filed 1/4/13 P. v. Smith
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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
KENNETH RAY SMITH,
Defendant
and Appellant.
B236611
(Los Angeles County
Super. Ct. No. BA363755)
APPEAL
from a judgment of the Superior Court of
County, Anne H. Egerton, Judge. Affirmed.
Stephen
B. Bedrick, 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, Linda C. Johnson and
Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Kenneth Ray Smith was
tried by a jury on three felony counts arising from two separate shooting
incidents. As to the first incident, the
jury acquitted defendant of the murder
of Jeremy Solomon (Pen. Code, § 187, subd. (a), count 1)
664, 187, subd. (a), count 2).
As to
the second incident, the jury convicted defendant of the first degree murder of
Overland Campbell and found true the special circumstance allegation of an
intentional killing committed to benefit a criminal
street gang. (§§ 187, subd. (a),
190.2, subd. (a)(22), count 3.) It also
found true the criminal street gang and firearm enhancement allegations. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds.
(c), (d), (e)(1).) The trial court
sentenced defendant to prison for life without parole and imposed and stayed
the criminal street gang and firearm enhancements.
In
his appeal from the judgment, defendant raises issues concerning the erroneous
admission of evidence, prosecutorial
misconduct, and refusal to sever counts 1 and 2 from count 3. Finding no error, we affirm.
2007 Shootings of
Solomon and Randolph
On
the afternoon of December 26,
2007, Solomon and Randolph were shot as they were sitting in Randolph’s car in the
parking lot of Jesse Owens Park (park) in the
City of Los Angeles. The park is in an area claimed by the Rolling
90’s Gang. Solomon died of
gunshot wounds but did not testify at trial.
A. Shearer’s Pretrial Identification of
Defendant as the Shooter
Ramses
Shearer, the prosecution’s sole eyewitness to the shooting, was sitting in his
truck near the victims’ car when the shooting occurred. Immediately after the shooting, Shearer told
responding Los Angeles Police Department officers that the shooter was an
African-American male who was shorter than Shearer (who is six feet one inch
tall), and had light skin, freckles, short hair, and a “kind of thickâ€
build. During the police investigation,
Shearer reviewed several photographic six packs and selected defendant’s photo.
In
court, however, Shearer was an uncooperative witness. His preliminary hearing testimony consisted
primarily of a single response, “I can’t answer that.†At trial, he refused to be sworn as a witness
even in the face of contempt charges.
After finding Shearer to be unavailable as a witness (Evid. Code, §
240), the trial court allowed the prosecutor to read to the jury the transcript
of Shearer’s preliminary hearing testimony and play his recorded pretrial
interview. In this manner, the jury was
informed of Shearer’s pretrial identification of defendant’s photograph.
The
prosecutor then resumed questioning Shearer in front of the jury. Shearer was now more cooperative but gave
contradictory responses. On the one
hand, he admitted that the recording was accurate and that he had identified
defendant’s photograph. On the other
hand, he repudiated his identification of defendant as false. He testified that he had falsely selected
defendant’s photograph because Detective Roger Guzman was tapping it with his
finger.
title="">[3] He claimed that he did so because he was in custody
and had been promised “all kinds of things†including “[m]oney on [his]
books.†“I was just sentenced to 21
years, going to prison. I was offered a
few amenities and I said okay, no problem.
Everything in there is true except for the identity of the person who
did it.†“I was taken from high security
lock down and brought down to 77th Street jail, given my
own cell, my own magazines, my cigarettes, my eight-hour visits, free phone
calls.†Shearer read to the jury the two
letters that he had written to Detective Eric Crosson requesting money and
other amenities for his testimony.
Corroboration of Shearer’s Pretrial Identification
The
prosecution sought to corroborate Shearer’s pretrial identification of
defendant by showing that: (1) defendant’s
High Standard Double Nine Revolver, which ballistics testing had excluded as
the murder weapon, was the same type of firearm that could have been used to
shoot Solomon and Randolph, and (2) defendant was seen running from the park in
the same clothing described by Shearer—a white t-shirt and blue
jeans—immediately after the shooting.
1. Defendant’s High Standard Double
Nine Revolver
The prosecution presented
evidence that on June 23, 2008, defendant was pulled over in his car by Los
Angeles County Sheriff’s Deputy Terence Peterson, who searched the car and
found a loaded gun hidden behind the side panel of the driver’s seat. Defendant admitted to Peterson that the gun
was his and that he belonged to the Eight Trey Gangster Crips.
The
prosecution presented evidence that defendant’s gun, a .22 caliber High
Standard Double Nine Revolver, was the type of firearm that might have been
used in the shooting of Solomon and Randolph.
Shearer’s description of the shooting coupled with the physical evidence
suggested that the shooter had used a .22 caliber revolver that, like the High
Standard Double Nine Revolver, fires nine rounds without ejecting any casings.
Standard is the only company that makes a .22 caliber revolver that can hold
nine rounds. Firearms examiner Rafael
Garcia testified that although ballistic tests excluded defendant’s High
Standard Double Nine Revolver as the murder weapon, it was possible that a similar
weapon had been used in the December 26, 2007 shooting. Several police officers testified that High
Standard Model Double Nine Revolvers are rare.
Garcia testified that in his 16 years as a firearms examiner, he had
seen fewer than 10 such weapons.
The
prosecution argued that defendant’s possession of a High Standard Double Nine
Revolver that is rarely seen by law enforcement officers in Los Angeles was
relevant to establish his knowledge and ability to commit the December 26, 2007
shooting.
2. Defendant Was Seen Running From the Park
After the Shooting
The
prosecution also offered evidence that defendant was seen running from the
direction of the park immediately after the shooting in the same clothing (a
white t-shirt and light blue jeans) that Shearer had described in his interview
statement.
Prosecution
witness Michael Johnson testified that on December 26, 2007, he was standing in
front of his house near the park when he heard several gunshots. A few minutes later, Johnson saw a Black male
running from the direction of the park.
As the man ran by, he was glancing over his shoulder and holding the
front of his shirt with both hands near the waistband. The man was approximately six feet tall, 215
or 220 pounds, and wearing a large white t-shirt and baggy light blue
jeans. A black four-door Pontiac turned
the corner and slowed down for the man, who got into the rear seat. The driver, a Black male, looked at Johnson
with a “slight smirk†and “gave what appeared like a peace sign.â€
Johnson
went to the police station the next day to provide a description of the man who
was running from the direction of the park.
Although Johnson identified defendant at trial, he did not do so at the
preliminary hearing. At trial, Johnson
attributed his failure to identify defendant at the preliminary hearing to his
being afraid and “a little unsure.†He
testified that after leaving the preliminary hearing, he had sent Detective
Guzman a text message stating that although he was nervous, he was sure “[t]hat
was him.â€
Johnson
was still fearful of retaliation because he lives in the same house near the
park and two vehicles were vandalized in his driveway the previous
weekend. Three “X’s†were written on the
hood of his truck and “bitch†was written on the hood of his fiancée’s
car.
Johnson
had prior convictions for robbery and
false imprisonment. Johnson was
aware of the $75,000 reward offered in this case.
II. The September 5, 2008 Shooting of
Campbell
The
incident in count 3, the September 5, 2008 murder of Campbell, was the third
gang-related shooting on that date.
First, John Jackson (known as Baby Knockout), an Eight Trey Gangster
Crip, was shot by either the Rolling 60’s or 18th Street, a Hispanic gang. Second, “three Hispanics†were shot by Baby
Knockout’s cousin, Rahmel Hunter (known as Tiny Knockout). And third, following a meeting of the Eight
Trey Gangster Crips to discuss Baby Knockout’s shooting, Campbell (the victim
in count 3) was shot and killed outside some apartments on Florence Avenue
where the Rolling 60’s are known to gather.
The
physical evidence indicated that a .357 revolver and a nine-millimeter
semiautomatic were used in the Campbell shooting. Later that night, the police recovered a .357
revolver and a nine-millimeter semiautomatic in an area frequented by Eight
Trey Gangster Crips. Both weapons were
found after Los Angeles Police Department Officer Joshua Kniss and his partner
came across a large group of people on 94th Street. When a man with gang tattoos (Jerry Forrest)
spotted the officers, the man ran away while holding his waistband. The officers ran after Forrest because he
appeared to be carrying a concealed weapon.
During the chase, Forrest discarded a .357 revolver, which was later
identified as one of the weapons used in the Campbell shooting. A 12-gauge shotgun and a nine-millimeter
semiautomatic were also found nearby.
Based
on a tip, Detective Guzman interviewed Devonte Brooks (known as G‑Tay),
an Eight Trey Gangster Crip, as a possible witness to the Campbell
shooting. After viewing several still
images from a surveillance videotape of a nearby business, G‑Tay gave
Guzman the names and monikers of the alleged participants in the Campbell
shooting. Following this interview,
Guzman focused on “a person†as a suspect in the shooting.
Most Wanted,†Guzman received information concerning defendant.
A. Defendant’s Interview Statements
On
September 29, 2009, Guzman interviewed defendant with regard to the Campbell
shooting. The prosecution played video
and audio tapes of defendant’s interview for the jurors, who also received a
written transcript.
During
the interview, defendant initially denied any involvement in Campbell’s
shooting. Eventually, however, defendant
admitted that he was told on September 5, 2008, about the shooting of Baby
Knockout and was taken to a location where everyone was crying about the
shooting. When everyone left the
location, he got a ride home from a female (later identified as defendant’s
cousin). As they left 94th Street, one
of the other passengers, G‑Tay, directed the driver to an apartment on
Florence where “they’d be at.†The
driver stopped the car on Florence where G‑Tay and another passenger, G‑Smash,
got out. Defendant heard some
gunshots. G‑Tay and G‑Smash
returned to the car and the driver took defendant home.
According
to the interview transcript, defendant described the above events as
follows: “They called me and told me
that Knockout had got shot or whatever.
They came and picked me up. **
and everybody’s crying ** and all that stuff.
Then girl took me back to Hawthorne because everyone was starting to
leave. It was getting late. As we’re pulling off 94, she turned, and
fuckin’ G Smash busted. *** 60s. G Tay
said an apartment they’d be at on Florence.
So she pulled over and parked.
And they just laughed, got out, walked up to an apartment towards this
way on Florence. I heard a couple of
shots. They ran and jumped back in the
car. She drove off.†“G Tay and G Smash†were the
shooters. After the shooting, the car
“went up to Florence, I mean to Venice.
Took a left to El Segundo, and continued taking me home.â€
During
the interview, defendant claimed that he was no longer a gang member. He stated that as of two years ago (i.e., two
years before the September 29, 2009 interview), he was no longer “from Eight
Trey,†which treats him “like an outsider.â€
“I don’t even be friends with G Tay, so it’s not like he speaks to me or
nothing. He has a vendetta towards me
. . . .â€
Special Circumstance and Gang Enhancement Allegations
The
prosecution argued that regardless of defendant’s current gang status, on the
date of the Campbell shooting he was a self-professed member of the Eight Trey
Gangster Crips. The evidence showed that
when defendant was interviewed by Detective Ian Elliott of the Hawthorne Police
Department both before (January 18, 2008) and after (August 21, 2009) the
Campbell shooting, defendant had identified himself as an Eight Trey Gangster
Crip. Elliott testified that according
to his field interview card, defendant was still sporting his gang’s color
(blue shorts) and tattoos on August 21, 2009.
The
prosecution’s gang expert, Los Angeles Police Department Officer Marlon
Prodigalidad, testified that in his opinion, defendant was a member of the
Eight Trey Gangster Crips when Campbell was shot. Prodigalidad based his opinion on defendant’s
tattoos, the information provided by other police officers’ field information
cards, and defendant’s gang monikers (Tiny Rowdy, Baby Bluestone, and Mack).
Prodigalidad
testified that in his opinion, the three shooting incidents on September 5,
2008—(1) the initial shooting of Baby Knockout, (2) the retaliatory shooting of
“three Hispanics†by Baby Knockout’s cousin Tiny Knockout, and (3) the fatal
shooting of Campbell in Rolling 60’s territory—were all gang-related. He explained that in the gang culture, if an
Eight Trey Gangster Crip is shot by rival gang members, the Eight Trey Gangsters
must “put in work†and “shoot the rival gang†to avoid being “seen as weak†and
discourage further attacks by rival gangs.
The Eight Trey Gangsters must retaliate even if it is unclear which
rival gang committed the initial shooting.
In the gang culture, the Eight Trey Gangsters must retaliate by shooting
someone and even a victim who has no gang ties will suffice. “[A]ll they need to do is send a
message. Because eventually, it’s going
to get back to the [rival gang], hey, this guy got killed. So the rival is coming into our neighborhood
shooting somebody. It could have been
one of us.â€
Based
on three hypothetical shooting incidents that tracked the prosecution’s
evidence of the three September 5, 2008 shootings, Prodigalidad testified that
in his opinion, the third shooting was committed for the benefit of, at the
direction of, and in association with a criminal
street gang.
III. The Verdict and Sentence
As
previously mentioned, the jury acquitted defendant of the December 26, 2007
murder of Solomon (count 1) and the attempted murder of Randolph (count 2), but
convicted him of the September 5, 2008 murder of Campbell (count 3) and found
the gang special circumstance and criminal street gang and firearm enhancement
allegations to be true. (§§ 190.2, subd.
(a)(22), 186.22, subd. (b)(1)(C), 12022.53, subds. (c), (d), (e)(1).)
On
count 3, the trial court sentenced defendant to prison for life without parole
and imposed and stayed the criminal street gang and firearm enhancements. This timely appeal followed. Additional evidence relevant to the issues on
appeal will be discussed below.
Defendant
contends the following evidence was inadmissible and the prosecutor committed
concerning his intent and state of mind; (2) the incriminating statements of an
absent codefendant; (3) his High Standard Double Nine Revolver that was not tied
to either incident; and (4) hearsay evidence of a gang meeting that preceded
Campbell’s murder.
name="_ftnref7" title="">[7] In addition, defendant argues that the trial
court erroneously denied his motion to sever counts 1 and 2 from count 3.
I. Evidentiary Error and Prosecutorial
Misconduct
In
reviewing claims of evidentiary error, we are guided by several
principles. One basic rule is that only
relevant evidence is admissible. (
1153, 1170.) Evidence is relevant if it
has “any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.†(Evid. Code, § 210.) The trial court possesses broad discretion in
determining the relevancy of the disputed evidence. (Pollock,
supra, 32 Cal.4th at p. 1170
Another
basic rule is that not all evidentiary errors will result in the reversal of a
judgment. “We
do not reverse a judgment for erroneous admission of evidence unless ‘the
admitted evidence should have been excluded on the ground stated and
. . . the error or errors complained of resulted in a
miscarriage of justice.’ (Evid. Code, §
353, subd. (b); see also People v. Rodrigues (1994) 8 Cal.4th 1060,
1124; People v. Watson (1956) 46 Cal.2d 818, 836 [error is harmless
under our state constitutional standard unless it is ‘reasonably probable that
a result more favorable to the appealing party would have been reached in the
absence of the error’].)†(
826, 878.)
Intent and State of Mind
Defendant
contends that Prodigalidad and Guzman improperly testified as to their opinions
on the ultimate issue: that he willingly
participated in the Campbell shooting as an aider and abettor. He claims that without their improper opinion
testimony, his uncontroverted denial of any knowledge or intent to participate
in the shooting would have required his acquittal “for failure of proof of mens
rea.â€
title="">[8]
Preliminarily,
we note that because the prosecution had the burden of proving the gang-related
special circumstance and enhancement allegations (§§ 190.2, subd. (a)(22),
186.22, subd. (b)(1)(C)), we must consider the disputed evidence in that
context.
title="">[9] In addition, we note that no objection was
raised below concerning Prodigalidad’s qualifications to testify as the
prosecution’s gang expert.
1. Expert Testimony Generally
“In order to prove the elements of
the criminal street gang enhancement, the prosecution may, as in this case,
present expert testimony on
v. Gardeley, supra, 14
Cal.4th at pp. 617-620.)†(
1047-1048.)
“California law permits a person
with ‘special knowledge, skill, experience, training, or education’ in a
particular field to qualify as an expert witness (Evid. Code, § 720) and
to give testimony in the form of an opinion (id., § 801).
Evidence Code section 801, expert opinion testimony is admissible only if the
subject matter of the testimony is ‘sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact.’ (Id., subd. (a).) The subject matter of the culture and habits
of criminal street gangs, of particular relevance here, meets this
criterion. (People v. Olguin [(1994)] 31 Cal.App.4th 1355, 1370
[‘The use of expert testimony in the area of gang sociology and psychology is
well established.’]; People v. Gamez (1991) 235 Cal.App.3d 957, 965-966
[upholding the admission of opinion testimony by a gang expert]; People v.
McDaniels (1980) 107 Cal.App.3d 898, 904-905 [same]; see People v.
Champion (1995) 9 Cal.4th 879, 919-922 [holding that opinion testimony by
an expert in juvenile gangs was relevant and therefore admissible].)†(Gardeley,
“Expert testimony may also be
premised on material that is not admitted into evidence so long as it is
material of a type that is reasonably relied upon by experts in the particular
field in forming their opinions. (Evid.
Code, § 801, subd. (b); People v. Montiel (1993) 5 Cal.4th 877, 918-919;
Korsak v. Atlas Hotels, Inc.
(1992) 2 Cal.App.4th 1516, 1524; Kennemur v. State of California (1982)
133 Cal.App.3d 907, 923.) Of course, any
material that forms the basis of an expert’s opinion testimony must be
reliable. (1 Witkin, Cal. Evidence (3d
ed. 1986) The Opinion Rule, § 477, p. 448.)
For ‘the law does not accord to the expert’s opinion the same degree of
credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s
opinion is no better than the facts on which it is based.’ (Kennemur v. State of California, supra,
at p. 923.)
“So long as this threshold
requirement of reliability is satisfied, even matter that is ordinarily inadmissible
can form the proper basis for an expert’s opinion testimony. (In re Fields (1990) 51 Cal.3d 1063,
1070 [expert witness can base ‘opinion on reliable hearsay, including
out-of-court declarations of other persons’] . . . .) And because Evidence Code section 802 allows
an expert witness to ‘state on direct examination the reasons for his opinion
and the matter . . . upon which it is based,’ an expert witness
whose opinion is based on such inadmissible matter can, when testifying,
describe the material that forms the basis of the opinion. (People v. Shattuck (1895) 109 Cal.
673, 678 [medical expert could testify to patient’s complaints in order ‘to
give a clinical history of the case to understand the significance of her
symptoms’]; McElligott v. Freeland (1934) 139 Cal.App. 143, 157-158
[certified public accountant could testify to information he relied on in
property valuation]; see People v. Wash (1993) 6 Cal.4th 215, 251
[prosecution could elicit out-of-court statements relied on by the defense
expert] . . .
“
matters and a jury’s need for information sufficient to evaluate an expert
opinion may conflict with an accused’s interest in avoiding substantive use of
unreliable hearsay, disputes in this area must generally be left to the trial
court’s sound judgment. (People v.
Montiel (1993) 5 Cal.4th 877, 919.)â€
(People v. Valdez (1997)
58 Cal.App.4th 494, 510.)
2. Prodigalidad’s Disputed Testimony
As
the prosecution’s gang expert, Prodigalidad explained that when a gang enters a
rival gang’s territory on a “mission†to commit a crime or shooting, it
typically brings weapons and another car to act as a lookout. When the prosecutor asked Prodigalidad
whether everyone in the car would know “what was going on,†the trial court
sustained defense counsel’s unspecified objection. When the prosecutor restated the question in
the context of Prodigalidad’s experience as a gang expert, the trial court
again sustained defense counsel’s unspecified objection, stating: “Sustained.
Killibrew.â€
name="_ftnref10" title="">[10]
The
prosecutor then asked whether, in Prodigalidad’s experience, a gang would take
persons who were not loyal to the gang on a mission in rival territory. Over a defense objection on unspecified
grounds, Prodigalidad answered, “No.†He
explained: “It’s a liability for
them. In essence, it’s a liability that
if a crime does occur, there’s a witness that’s not loyal to the gang. You don’t bring somebody that’s not loyal to
the gang. Even though you might not be a
shooter, you’re going to be some kind of participant, you’re going to be a
lookout, you’re going to say, hey, that guy is from the rival gang, shoot
him. Or you might be the driver.†Prodigalidad similarly testified, without
objection, that in his experience, gangs do not take “unnecessary people†to
commit a mission in rival territory for “liability†reasons.
The
prosecutor inquired whether Prodigalidad knew if the “Eight Trey Gang had any
type of meeting after Baby Knockout was shot.â€
Prodigalidad answered yes, that other officers had told him that such a
meeting had occurred. The prosecutor
then asked whether in Prodigalidad’s experience, a gang would invite strangers
or those unaffiliated with the gang to that meeting. Prodigalidad replied that only strong
associates or gang members would be invited, because the purpose of such a
meeting would be to “talk about what happened and what’s going to be
done.†Defendant did not object to the
above testimony.
3. Guzman’s Disputed Testimony
During
trial, the prosecutor played the tape of defendant’s interview. The tape contained Guzman’s statements that
two of the suspects had named defendant as a passenger in the car and one of
them had identified defendant as one of the shooters.
The
prosecutor also presented Guzman’s testimony concerning his thought processes
during the interview. For example,
Guzman testified that when he told defendant that “he was just a dumb ass in
the car,†he was not “trying to say he had no culpability,†but was trying to
encourage defendant to talk about “his role [in the shooting,] straight
from his mouth.†Guzman testified that
he was trying to “flip†defendant
against the other participants because, based on the information that he had at
the time, he did not believe that defendant was the shooter. Guzman testified that during the interview,
he believed that defendant was “an aider and abettor,†“a lookout,†or someone
who helped hide evidence.
The
prosecutor inquired whether in Guzman’s experience, gang members would bring an
extra person to a shooting. Guzman
replied that in his experience, only “hardcore gang members†would be allowed
in the car: “Q Why wouldn’t they just take along an extra
person? [¶] A
Because it’s a liability to them.
They need to know that the people that are inside that car are
trustworthy, that they know what they’re doing and that they’re absolutely
reliable.â€
Although
defendant did not object to the interview tape or the testimony quoted above,
he objected on several occasions to Guzman’s testimony concerning his intent or
liability as an aider and abettor. As
shown below, the trial court sustained those objections:
“Q And based on the information that you had at
the time when you were interviewing Kenneth Smith, what did you believe Kenneth
Smith’s, that is, the defendant’s role to be that you were trying to, in your
words, flip him? [¶] A I
believed that he was a lookout and a support of the actual shooter. [¶] Q
So an aider and abettor, but not the person who actually shot the firearm, is
that — [¶] MR. SCHMOCKER: Your Honor, I object to that question. [¶]
THE COURT: Sustained. It calls for a legal conclusion. The jurors will decide that. [¶] BY
MS. CHON: Q In your mind, at the time you’re interviewing
him and trying to flip him, did you believe he was the actual shooter? [¶]
No, I did not. [¶] Q Did
you believe that he went to the location with the actual shooter? [¶]
A Yes.â€
“Q
Now, based on your training and experience of investigating gang crimes,
and especially the Eight Trey Gang, would the defendant, if he was not close to
the Eight Trey Gang, first of all, be notified that Baby Knockout was shot, and
then brought to the gang meeting?
[¶] A No.
[¶] Q Why not?
[¶] A People that are notified are more than likely
to be active or strong — at least have a strong association with that gang or
else why would you notify this circle of friends, or at least the tight circle
of gang members that Knockout was associated with. [¶]
Q And when the defendant said he
wasn’t really close to G‑Tay and G-Smash when they drove to rival 60s
hood and they took him along, in your experience, is that something that
happens? [¶] MR. SCHMOCKER: I’d object to the intent issue. [¶]
THE COURT: Sustained.â€
“Q Just so I understand, you’re separating
closeness between gang members versus being committed. What do you mean by that? [¶]
A That they’re going to take
people that are reliable and trustworthy criminals, not so much that they’re
close friends. [¶] Q So that
they are committed for the cause of whatever they’re doing? [¶]
A Correct. [¶]
THE COURT: Miss Chon, the answer
is stricken. He’s not to testify about
the intent or knowledge of anybody, including Mr. Smith. Next area, please.â€
4. Analysis
Under Gardeley,
to explain the unique culture and habits of gangs. (Gardeley,
bring an innocent passenger to commit a shooting in enemy territory was
relevant to the intent element
of the gang-related special circumstance and enhancement allegations. The trial court reasonably concluded that the
experts’ opinion was admissible because the issue was “sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.â€
(Evid. Code, § 801, subd. (a).)
The flaw in defendant’s argument is
that the experts were not allowed to opine as to what defendant was thinking
when he was in the vehicle at the time of the Campbell shooting. Instead, the experts informed the jury, in
general terms, that a gang would not allow a person who was not a loyal member
to be present during a retaliation shooting.
This testimony provided circumstantial
evidence that defendant knew what was going to occur when he got into the
vehicle with his fellow gang members and intended to aid and abet in the
subsequent shooting of Campbell.
As to Guzman, we conclude that his
to explain the statements he made during defendant’s interview. In that context, his opinions concerning
defendant’s intent or culpability were not offered for the truth of the matter
asserted, but to explain what he was trying to elicit from defendant during the
interview. The trial court did not allow
the prosecution free reign in this regard, but sustained several objections,
including one of its own, to questions that it deemed excessive.
To the extent, if any, Guzman’s
opinion concerning defendant’s intent or role as an aider and abettor was
inadmissible, we conclude the alleged error was harmless. (People
v. Watson, supra, 46 Cal.2d at p.
836.) The record contains substantial
evidence even without Guzman’s disputed testimony to support a finding that
defendant possessed the requisite intent to be held liable for Campbell’s
murder as an aider and abettor.
Defendant’s gang membership on the date of Campbell’s shooting was
established through his extrajudicial statements to Elliott. Similarly, defendant’s presence at the Eight
Trey Gangster Crips meeting on the date of the shooting could be reasonably
inferred from his recorded interview statements. Prodigalidad’s expert testimony provided a reasonable
basis for the jury to infer that defendant was a committed gang member who
participated in the September 5, 2008 gang meeting and subsequent shooting with
the knowledge and intent to shoot someone in a rival gang’s territory in
retaliation for the shooting of Baby Knockout.
Defendant
challenges the admission of an absent codefendant’s incriminating hearsay
statements. The disputed statements were
introduced in two ways: (1) through
Guzman’s testimony at trial;
during defendant’s taped interview.
On
appeal, defendant contends that his absent codefendant’s incriminating hearsay
statements (i.e., the other suspects’ statements that were repeated by Guzman
during defendant’s taped interview) were “inadmissible under the 6th
Amendment’s confrontation clause and they should have been excluded.†He further contends that Guzman’s
testimony—that following G‑Tay’s interview, he focused “on a person†as a
suspect in the Campbell shooting—was also inadmissible.
The
Attorney General argues that these claims were forfeited because they were not
properly raised below. The record
supports the Attorney General’s position.
We conclude that because defendant did not raise a timely and specific
objection to the disputed evidence, he failed to preserve the claims for
appeal. (People v. Samuels (2005) 36 Cal.4th 96, 122.)
In
any event, the disputed evidence was plainly admissible. Guzman’s statements (relating the other
suspects’ statements) during the taped interview were not admitted for the
truth of the matter, but for the nonhearsay purpose of showing their effect on
defendant. (People v. Jablonski (2006) 37 Cal.4th 774, 820.) Similarly, Guzman’s disputed testimony that he
focused on an unnamed individual was offered for the nonhearsay purpose of
explaining the course of his investigation of the Campbell shooting. (People
v. Samuels, supra, 36 Cal.4th at
p. 122.) Accordingly, the trial court
did not err in admitting the disputed evidence.
Defendant contends his counsel should have objected on the proper
ground—that the statements of the absent codefendant violated
123 and Gray v. Maryland (1998) 523
U.S. 185. He asserts the strongest
evidence the prosecution had was the codefendant’s claim that defendant was one
of the shooters. He urges his counsel’s
failure to object was inexplicable and constituted ineffective assistance.
Assuming, without deciding, that
defendant’s counsel committed unprofessional errors, defendant must establish
there is a reasonable probability that but for the errors, “the result of the
proceeding would have been different.†(
668, 694.) He failed to carry that burden.
It is clear the prosecutor did not
try the case on the theory that defendant was the shooter. After recounting the circumstantial evidence
suggesting that defendant had fired a weapon at Campbell, the prosecutor stated,
“I’m not sure. I’m not going to stand
here and say to you I know for sure that — I am not going to vouch for the
evidence.†She recounted the testimony
of a witness who said she saw only one shooter, the person who opened the front passenger door. (Defendant said he was in the front passenger
seat.) She pointed out that the physical
evidence did not match the witness’s observations because two guns were used in
the murder. The prosecutor then told the
jury, “What we do know for sure and what the testimony does prove beyond a reasonable
doubt is that the defendant was an aider and abettor, whether or not he was the
actual shooter during the Overland Campbell case, because he got into that car
after that gang meeting with the intent to help either shoot or with the intent
to help those shooting . . . .â€
The jury could not have convicted
defendant as an aider and abettor unless it disbelieved defendant and accepted
that a person not loyal to the gang would not have been allowed to simply tag
along on a mission to retaliate for the shooting of one of its members. Defendant admitted: (1) he knew Baby Knockout had been shot; (2)
he was present at a location where the shooting was discussed; and (3) after the
meeting, he got into a vehicle with fellow gang members and was present when
the Campbell murder was committed. Ample
evidence supported the jury’s rejection of defendant’s claim that he was an
unwitting bystander to the homicide and its implicit finding that the
passengers in the vehicle were willing participants in the killing, even if
they did not personally fire a weapon.
Accordingly, there is no reasonable probability the jury’s verdict would
have been different but for the admission of the codefendant’s statement.
Finally,
we reject defendant’s related claim of prosecutorial misconduct. The misconduct claim is based on the
prosecutor’s statement during closing argument that during his interview,
defendant was “confronted with the evidence against him,†namely, the
incriminating statements made by G‑Tay and “another person.†By referring to the other suspects’
statements, the prosecutor was not improperly urging the jury to convict
defendant on the basis of their statements, but on the basis of defendant’s
self-incriminating statements during the interview. The prosecutor was entitled to argue that
defendant’s statements concerning the gang meeting, the vehicle used in the
shooting, and the type of weapons that were fired were relevant to show that he
was a knowing and willing participant in the shooting.
High Standard Double Nine Revolver
At
trial, defendant objected to the admission of his .22 caliber High Standard
Double Nine Revolver. He argued that
because his revolver was determined not to be the murder weapon in the first
incident and did not match the type of firearms used in the second incident, it
bore no relevance to this case and its admission would be unduly
prejudicial. (Evid. Code, § 352.)
The
trial court overruled the objection, stating that “the People have a colorable
relevance argument. They can argue, if
they want, that the gun used on . . . December 26th [fired] nine
shots and [defense counsel] can argue that that’s not what the evidence shows
and that [many] different guns . . . can fire a .22 [caliber
bullet.]†The court stated that the
prosecution’s theory was that a .22 caliber High Standard Double Nine Revolver
“is a somewhat unusual gun; that they think the December 2007 murder was
committed with this kind of a gun; that your client was found six months later
with the same kind of gun. They’re not
going to argue it was the murder weapon, they’re going to concede that it was
determined not to be the murder weapon, but the relevance is what I just said,
and I understand you may disagree.â€
Defendant
argues on appeal that his .22 caliber High Standard Double Nine Revolver was
inadmissible under People v. Riser (1956)
47 Cal.2d 566, 577 (Riser). In Riser,
the prosecution’s evidence showed that the murder weapon was a Smith and Wesson
.38 Special revolver, and not either of the weapons (a Colt .38 and a P38) that
were admitted into evidence. In
discussing the defendant’s argument that the Colt .38 and P38 should have been
excluded at trial, the Supreme Court stated:
“When the specific type of weapon used to commit a homicide is not
known, it may be permissible to admit into evidence weapons found in the
defendant’s possession some time after the crime that could have been the
weapons employed. There need be no
conclusive demonstration that the weapon in defendant’s possession was the
murder weapon. [Citations.] When the prosecution relies, however, on a
specific type of weapon, it is error to admit evidence that other weapons were
found in his possession, for such evidence tends to show, not that he committed
the crime, but only that he is the sort of person who carries deadly
weapons. [Citations.]†(Ibid.) On that basis, the Supreme Court held that
the Colt .38 was inadmissible, but that the P38 was admissible on other
grounds.
We
conclude that Riser is
distinguishable because in this case, the specific type of weapon used to
commit the December 2007 shooting was not
known. The prosecution’s evidence did
not show that the murder weapon was a High Standard Double Nine Revolver. At best, the prosecution’s evidence showed that
the murder weapon was either a .22 caliber revolver, which explained the
absence of casings at the scene, or a .22 caliber semiautomatic, which did not
explain the absence of casings at the scene.
The evidence in this case failed to demonstrate whether the murder
weapon was a revolver or an automatic, or the number of rounds that it could
hold. Accordingly, even though it was
determined not to be the murder weapon, defendant’s .22 caliber High Standard
Double Nine Revolver was relevant to show his familiarity with the only .22
caliber revolver in existence that can hold nine rounds. We conclude that the trial court did not
abuse its discretion in denying defendant’s motion to exclude his revolver
under Evidence Code section 352.
In
any event, even if defendant’s .22 caliber revolver was inadmissible, its
admission did not result in any undue prejudice because defendant was acquitted
of the only crimes (counts 1 & 2) in which a .22 caliber weapon was
used. As to count 3, which was committed
with a .357 caliber gun and a nine-millimeter gun, defendant was not alleged to
be the shooter and it is not reasonably probable that he would have obtained a
more favorable verdict if his .22 caliber revolver had been excluded from
evidence.
D. The Gang Meeting Concerning Baby
Knockout
As
previously mentioned, the prosecutor asked if Prodigalidad knew whether the
“Eight Trey Gang had any type of meeting after Baby Knockout was shot.†Prodigalidad answered yes, he had heard from
other officers that such a meeting had occurred. The prosecutor then asked whether in
Prodigalidad’s experience, a gang would invite strangers or those unaffiliated
with the gang to that meeting.
Prodigalidad replied that only strong associates or gang members would
be invited, because the purpose of such a meeting would be to “talk about what
happened and what’s going to be done.â€
Defendant did not object to the above testimony.
Defendant
contends on appeal that “[t]he prosecutor improperly introduced hearsay, and
improperly argued, that appellant attended a gang meeting, when there was no
valid evidence to support the claims either that there was such a meeting, or
that appellant attended it.â€
We
conclude that defendant forfeited the hearsay objection by failing to raise it
below. (People v. Bolin (1998) 18 Cal.4th 297, 320.) In any event, the evidence was
admissible. The other officers’
extrajudicial statements regarding the gang meeting were not offered for their
truth, but as the factual basis for Prodigalidad’s expert opinion that only
strong associates or gang members would be invited to such a meeting.
As
previously discussed, expert testimony may “be premised on material that is not
admitted into evidence so long as it is material of a type that is reasonably
relied upon by experts in the particular field in forming their opinions. [Citations.]â€
(Gardeley,
officers’ statements concerning the September 5, 2008 meeting was established
by defendant’s own statements. During
his interview, defendant indicated that he had attended the gang’s September 5,
2008 meeting concerning the Baby Knockout shooting: “They called me and told me that Knockout had
got shot or whatever. They came and
picked me up. ** and everybody’s crying
** and all that stuff.â€
In a
related claim, defendant argues that during closing argument, the prosecutor
improperly referred to the September 5, 2008 meeting when there was no valid
evidence that such a meeting had occurred.
In light of our determination that the evidence concerning the meeting
was properly admitted, we conclude the contention lacks merit.
Motion to Sever Counts 1 and 2 from Count 3
Defendant
contends that the trial court abused its discretion in denying his pretrial
motion to sever counts 1 and 2 (the December 26, 2007 shootings of Solomon and
Randolph) from count 3 (the September 5, 2008 shooting of Campbell).
“‘“The law prefers consolidation of
charges. (People v. Ochoa (1998)
19 Cal.4th 353, 409.) Where, as here,
the offenses charged are of the same class, joinder is proper under section
954. (People v. Kraft (2000) 23
Cal.4th 978, 1030 . . . ;
v. Bradford (1997) 15 Cal.4th 1229, 1315 . . . .)â€â€™ (People v. Manriquez (2005) 37 Cal.4th
547, 574 . . . .)†(
913, 933-934 (Stanley).)
In this case, defendant was charged
with three
felony counts of the same class.
Accordingly, as stated in Stanley,
where the offenses charged are of the same class, joinder is proper and “defendant can only predicate error in the denial of
severance on a clear showing of potential prejudice. (Manriquez, supra, 37 Cal.4th at p. 574; Kraft, supra, 23 Cal.4th at p.
1030; Bradford, supra,
15 Cal.4th at p. 1315.) We review the
trial court’s denial of defendant’s severance motion for an abuse of
discretion. (Manriquez, at p. 574, and cases cited.)†(Stanley,
supra, 39 Cal.4th at p. 934.)
In denying the severance motion, the
trial court noted the absence of inflammatory
evidence regarding either incident that would create a substantial danger of
prejudice and require a separate trial of the charges. It also noted that both the gang evidence and
the evidence of defendant’s commission of the December 2007 murder were
cross-admissible to show his intent to aid and abet the commission of the
September 2008 murder.
Defendant
argues on appeal that the prosecution’s identification evidence for the
December 26, 2007 shooting was weak because (1) Shearer was uncooperative at
the preliminary hearing and at trial, and had requested money and special
prison privileges for his testimony, and (2) Johnson, who did not witness the
actual shooting but only saw a man running from the direction of the park, did
not identify defendant at the preliminary hearing. We disagree.
Because the prosecution presented evidence that both Shearer and Johnson
were afraid to testify because of fear of retaliation, we are not persuaded
that the identification evidence was weak.
We
conclude that defendant has failed to establish that the denial of his motion
to sever was an abuse of discretion.
DISPOSITION
The judgment is affirmed.
OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
WILLHITE,
Acting P. J.
MANELLA,
J.
name="_ftn1" title="">[1] All further undesignated statutory references are to the
Penal Code.
title="">[2] According to the interview transcript, Shearer made the
following statements:
Shearer
appeared as a witness
at the preliminary hearing but did not want to testify because he was in prison
and did not want to be a snitch.
Shearer was at the park on December
26, 2007. After parking his truck, he
went to the restroom, returned to his truck, and noticed the victims’ car. He was paying attention to his surroundings
because he was not in his own neighborhood.
As he sat in his truck, the two men in the victim’s car were shot by an
African-American male in a white t-shirt and blue jeans. The shooter, who was alone, had light skin,
freckles, short hair, and a “kind of thick†build. The shooter was shorter than Shearer, who is
six feet one inch tall. No one pointed a
gun or fired at the shooter.
After the shooting, Shearer watched
as the shooter ran away and the victims’ car drove out of the parking lot. Shearer also started to leave when he heard
sirens and saw a police helicopter overhead.
Shearer waved at the helicopter.
A patrol car came by and Shearer told the police officers that “these
two dudes, they just got popped right there.â€
Later, Shearer was contacted by
detectives. Shearer went to the
77th Street Station, was visited by detectives in Long Beach, and was
visited by detectives in Men’s Central Jail.
He was shown several photographic six packs. He identified photo number 4 (defendant’s
photo) in one of the six packs. He did
not see defendant’s photo in the other six packs. He was 100 percent certain of his
identification of defendant.
