P. v. Turner

Filed 6/3/08 P. v. Turner CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed.

Law Offices of Allen G. Weinberg and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

The jury found defendant Terry Turner guilty of the first degree murder of 16-year-old Jerry S. (Pen. Code, 187, subd. (a).)^[1] The jury found true the allegations that defendant personally used a firearm causing death within the meaning of section 12022.53, subdivision (d) and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)). On March 20, 2007, defendant was sentenced to state prison for 50 years to life.^[2] Defendant timely appealed.

Defendant contends the judgment should be reversed because the prosecution failed to disclose evidence prior to trial linking his tattoo Young Boss to a known gang member who lived at defendants address. We conclude defendant forfeited the issue by failing to raise it below, and defense counsels failure to object to the evidence was not ineffective assistance of counsel. Therefore, we affirm the judgment.

STATEMENT OF FACTS^[3]

Defendant is a member of the Bounty Hunter Bloods, a primarily African-American gang. Jerrys older brother, Mark, was a member of Killing Mob (K-Mob), a primarily Latino gang. Defendant and Mark knew each other and were on friendly terms, because their gangs were not rivals. However, the gangs became antagonistic, and on or about March 23, 2006, a member of K-Mob brandished a gun at a Bounty Hunter Blood. On March 28, 2006, defendant responded by beating up Mark, outside Marks house. Mark and a K-Mob associate then assaulted a Bounty Hunter Blood who had been present during the attack on Mark.

The next day, defendant and fellow gang members drove slowly past Jerry and Marks house three times in a black car. Jerry and Mark were outside, but sensing trouble, Mark went indoors. Defendant approached on foot and fired numerous gun shots at Jerry, fatally wounding him. Defendant ran down the street and entered the same car that had been circling the block. After the shooting, Mark terminated his association with K-Mob so that the gang would not retaliate against the Bounty Hunter Bloods for Jerrys murder.

DISCUSSION

The prosecutions gang expert, Officer Francis Coughlin, gave testimony linking defendants Young Boss tattoo to the gang moniker Boss of Tobias Williams, a known Bounty Hunter Blood who lived at defendants address. Defendant contends this one aspect of trial testimony resulted in an unfair trial, because the prosecution failed to provide pretrial discovery of the evidence. We hold the contention was forfeited by defendants failure to object on this ground below, and we reject defendants argument that his counsel was ineffective in failing to object.

Proceedings Concerning Defendants Tattoos

During the trial, the prosecution asked permission to photograph defendants tattoos outside the presence of the jury for use during the testimony of the prosecutions gang expert. Defense counsel objected that she did not know the prosecution would be making this request and had no information about the relevance of the tattoos. The prosecution proffered that defendant had three tattoos which indicated participation in the Bounty Hunter Bloods. One of the three was the gang moniker Young Boss. The prosecutor stated that the gang expert was familiar with the particular meaning of that tattoo. Defense counsel objected she had no discovery about what the expert intended to testify. The trial court permitted photographs to be taken.

The next day, trial counsel objected that the prosecution violated discovery because it had not provided discovery relating to the tattoos. Counsel argued that, because she had not received discovery, she had not hired a defense expert to rebut the prosecutions expert. As defendants booking report indicated defendants Young Boss and other tattoos, the trial court found discovery was not violated and denied defendants motion to exclude the experts opinion about the tattoos.

Counsel asked for a continuance to investigate and perhaps obtain a defense expert. However, counsel had not yet taken steps to obtain an expert. The trial court deferred ruling on the continuance motion until the prosecutions expert testified.

Defense counsel then requested a hearing to learn the substance of and basis for the experts testimony regarding the Young Boss tattoo. Defense counsel had spoken to Officer Coughlin before trial about his potential testimony but did not ask about defendants tattoos. The trial court granted a hearing outside the presence of the jury. In that hearing, the prosecutor asked Officer Coughlin, Did [defendants tattoos] have any significance to you in forming your opinion as to whether or not [defendant] is affiliated with or associated with any particular gang; and if so, please explain? Officer Coughlin answered: That he is affiliated with a gang. His tattoo on his arm says Block Boys or BB. And the BH is for Bounty Hunter. And Block Boys is a clique for Bounty Hunters and showing allegiance to that. Furthermore, he has a tattoo of Young Boss, which could be significant to his gang moniker, and also on his fingers is BB, which could also be interpreted as Block Boys. On cross-examination, counsel asked who Young Boss is and Officer Coughlin testified he believed it is defendant. Q. Do you have any record or documentation about a young boss? A. Other than [defendants] tattoo? Q. Yes. A. No. Q. So you have no way of knowing whether thats him or not? A. Specifically, no.

Officer Coughlin then testified before the jury that Block Boys is a subset of the Bounty Hunter Bloods. In his opinion, defendant was a member of the Bounty Hunter Bloods and the Block Boys subset. His opinion was based on a review of witness testimony which identified defendant as a Bounty Hunter Blood,^[4]a tattoo on defendant indicating affiliation with Block Boys Bounty Hunter Bloods, and the fact that this crime was a murder in broad daylight. The Young Boss tattoo on defendants arm had dollar signs before and after the words. The tattoo indicated that Young Boss was defendants moniker and he made money for his gang by robberies or narcotic sales. A tattoo BH BB on defendants arm and shoulder showed his allegiance to the Block Boys subset of the Bounty Hunter Bloods. Officer Coughlin expressed the opinion that Jerrys murder was in retaliation for the gun-brandishing foray by K-Mob members into Bounty Hunter Bloods territory.

On cross-examination, counsel asked Officer Coughlin if he had any information that the tattoo Young Boss related to a gang moniker. He testified he did. When reviewing the records, [defendants name] came back with . . . the same address of Tobias Williams, who I know as a Bounty Hunter Blood whose moniker is Boss. A lot of times gang members, youthful gang members, will take a name after someone higher up in the gang, someone they admire or vice versa. Theyll be given a name by somebody who was taking them along actually as a mentor. Tobias is called Boss. . . . I dont know if they are relatives or not, but they did come back with the same address, and theres a relationship there. Defense counsel did not object and completed cross-examination.

On redirect examination, Officer Coughlin testified that people who are not gang members usually do not hang out with known gang members. Gangs do not permit non-gang members to hang out with them, [b]ecause then youre going to be living off the reputation of that gang without putting in work. Williams is an active Bounty Hunter Blood. It was common in the Bounty Hunter Blood gang for one member to have a moniker such as Boss and another member to be Young Boss, and this reflects a mentoring relationship. Williams was older than defendant. Officer Coughlin testified he would not expect to see a Block Boy tattoo on a non-gang member. You just dont put a tattoo on that says Block Boys and walk around the neighborhood because that is offensive to the gang members themselves. You have to earn that tattoo. You have to earn the privilege to claim allegiance to the gang. And by doing that, you associate with them and you participate in criminal activity with them. You need to get--I dont want to say approval. But the best way to explain it is if you went to that neighborhood with that tattoo, youre going to have to answer to somebody.

The Contention Was Forfeited

Respondent argues that defendant forfeited his contention that Officer Coughlins testimony connecting the Young Boss tattoo to Williams rendered the trial unfair, because defendant failed to object at a time when the trial court could have taken remedial action. Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. [Citation.] The reason for this rule is that [i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.] [T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error. [Citation.] (People v. French (2008) 43 Cal.4th 36, 46.)

Defendant argues an objection would have been futile, as the trial court had overruled all of defendants previous objections to Officer Coughlins testimony about defendants tattoos. We disagree with defendants argument and conclude the contention was forfeited.

When defendant objected that he had no idea what Officer Coughlin was going to say in his testimony about the tattoos, the trial court granted his request for a hearing outside the jurys presence to ask the expert what the expert would say. The trial court did not state it would not entertain any further motions or objections. There is no basis for application of a rule of futility in these circumstances. As defendant did not object when Officer Coughlins testimony before the jury went beyond the testimony he gave in the tattoos hearing, defendant forfeited the issue.

Counsel Was Not Ineffective

Alternatively, defendant contends that the failure to object to Officer Coughlins testimony and move for a mistrial deprived him of the effective assistance of counsel. As the appellate record demonstrates neither inadequate performance nor prejudice, we reject the contention.

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 counsels performance fell below an objective standard of reasonableness, i.e., that counsels 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 counsels shortcomings. (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] (Ibid.)

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.) A defendant who raises the issue 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. [Citations.] (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)

A reviewing court need not determine whether counsels performance was deficient before examining whether the defendant suffered prejudice as a result of alleged deficiencies: 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 followed. (Strickland v. Washington, supra, 466 U.S. at p. 697.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark (1993) 5 Cal.4th 750, 766.)

Defendants argument fails under the performance prong of Strickland. The appellate record does not show why counsel failed to object and does not eliminate the possibility that counsels omission was tactical. (People v. Montiel (1993) 5 Cal.4th 877, 914.) Counsel may well have concluded that an objection and motion to strike would have highlighted the link between defendant and Williams, and that a better tactic was to demonstrate the speculative nature of Officer Coughlins opinion that Young Boss was defendants gang moniker. In this vein, counsel proceeded to elicit from Officer Coughlin that he had no other information indicating Young Boss was defendants moniker, tattoos are not necessarily gang-related, and a tattoo could be a commemorative tattoo honoring someone who has died. Counsel could have also reasonably concluded that a mistrial was unlikely to be granted. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] Accordingly, it would be a rare case in which the merits of a mistrial motion were so clear that counsels failure to make the motion would amount to ineffective assistance. [Citation.] (People v. Jennings (1991) 53 Cal.3d 334, 380; see also People v. Price (1991) 1 Cal.4th 324, 428 [nonresponsive reference to polygraph by witness did not warrant mistrial].)

Defendants ineffective assistance of counsel argument also fails under the prejudice prong of Strickland. There is no reasonable probability that defendant would have obtained a more favorable result had counsel moved for a mistrial or to strike the answer. The evidence defendant committed willful, deliberate, and premeditated murder of Jerry and personally used a firearm causing death was compelling and uncontradicted. Mark, who knew defendant, testified he saw defendant drive by his house in a black car three times and then shoot Jerry. A neighbor identified defendant in a photographic display as the person she saw running away and getting into a black car seconds after the shooting. Another witness testified she saw the individual who shot Jerry run away and get into a dark car. The evidence defendant was a gang member and committed the crime for the benefit of the gang was also strong, consistent, and convincing, apart from the challenged evidence linking defendant to Williams. Defendant displayed Bounty Hunter Bloods and Block Boys tattoos on his body, and Officer Coughlin testified non-gang members do not sport gang tattoos. Defendant was known to associate with the Bounty Hunter Bloods, and the Bounty Hunter Bloods would not allow non-members to associate with the gang. The dollar signs tattooed around Young Boss indicate defendant made money for his gang. The murder was an act of retaliation in an ongoing conflict. There was expert evidence that gunning-down someone in broad daylight indicates the shooting had a gang purpose. Mark testified the shooting was gang-related and he was jumped out of his gang to prevent more violence. On this record, there is no possibility of a result more favorable to defendant had counsel lodged an objection to the testimony.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references are to the Penal Code, unless indicated otherwise.

^[2] Defendant was sentenced to state prison for a term of 25 years to life for first degree murder, with a consecutive term of 25 years to life for the firearm use allegation under section 12022.53, subdivision (d). The trial court stayed the section 186.22, subdivision (b) gang enhancement. A $200 fine plus $420 in penalty assessments were imposed, among other financial obligations. Although respondent contends the $200 fine was subject to a courthouse construction penalty, respondent makes no specific argument that the $420 in penalty assessments did not include the courthouse construction penalty. On this record, there is no basis for determining that the proper penalty was not imposed.

^[3] In accordance with the normal rule of appellate review, we state the facts in the light most favorable to the judgment.

^[4] Mark testified he knew defendant associated with individuals who claimed to be Bounty Hunter Blood members. Los Angeles County Homicide Detective John Zambos testified that defendant was known to hang around Bounty Hunter Blood gang members.