P. v. Turner
Filed 2/4/13 P. v. Turner CA2/8
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opinion has not been certified for publication or ordered published for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
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWIN DARCELL TURNER,
Defendant and Appellant.
B235057
(Los Angeles
County
Super. Ct.
No. MA049674)
APPEAL
from a judgment of the Superior Court
of
County. Lisa M. Chung,
Judge. Affirmed.
William
L. McKinney for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff
and Respondent.
* *
* * * * * * * *
Defendant
Edwin Darcell Turner, along with codefendants Kevin D. Wallace, Daqunn L.
Tunstall, and Tony L. Hobson, was charged by information with two counts of
Code, §§ 664, 187, subd. (a); counts 3 & 4), as well as firearm and gang
allegations (§§ 12022.53, subds. (b), (c), 186.22, subd. (b)(5),
(b)(1)(C)). Turner was additionally
charged as a felon in possession of a
firearm (former § 12021; count 5). The defendants were tried separately.
In his first
trial, Turner was convicted of possession of a firearm by a felon
(count 5), but the jury deadlocked on the attempted murder counts (counts
3 & 4), and the court declared a mistrial.
The attempted murder counts were retried to a second jury, and Turner
was found guilty on both counts and all corresponding allegations were found
true. (The jury was unable to make a
unanimous finding for the premeditation allegations, however, and a mistrial
was declared as to those allegations.)
Turner was sentenced to 51 years 4 months in prison.
On appeal, Turner
contends insufficient evidence supports the attempted murder counts and the
gang enhancements, and that the videos played for the jury were not properly
authenticated. He contends that if trial
counsel failed to object to the admission of the videos, the failure to do so
constituted ineffective assistance of counsel.
Turner also contends that Detective O’Neal’s testimony about calls made
from jail and the courthouse lockup to one of the prosecution witnesses was
inadmissible hearsay. Lastly, he claims
cumulative error. Finding no merit in
any of the above contentions, we affirm.
FACTS
On the night of May 12, 2010, at the Shadow Springs
apartment complex in Palmdale, Turner and the codefendants approached L.J. as
she walked to her car. They asked where
she was going and asked for a ride to the convenience store. Because she was on her way to the convenience
store, L.J. agreed to give them a ride.
L.J. knew Turner and had seen the others before at the apartment
complex.
As she drove up to
the Chevron convenience store, L.J. saw a silver car pull in front of her and
park in front of one of the pumps. She
parked in one of the stalls in front of the store. Turner and his cohorts got out of the
car. One of them told her to stay in the
car. Turner waited outside, near the
store’s entrance, while the other three went inside the store.
As L.J. waited in
the car, the two occupants of the silver car, John Does 1 and 2, walked by her
car and went into the store. John Does 1
and 2 were in the store for less than a minute, and as they left the store, one
of them “bumped†into Turner. John Does
1 and 2 asked Turner and his cohorts (who had also left the store), “Where are
you from?†They answered “5th,†and John
Does 1 and 2 said they were from “BOP.â€
At that point, it seemed to L.J. “like they were all going to get into a
fight.†John Does 1 and 2, and two of
the men from Turner’s group, put up their fists. L.J. did not want to be involved in a fight,
so she put her car in reverse. She then
heard “a few†gunshots coming from where the men had been standing. As she was backing up, three of the
defendants jumped in her car. She
returned to the apartment complex, and the three defendants got out of her car
and ran in different directions.
L.J. moved from
the apartment complex several weeks later because she was afraid. Sometime between the May 12 incident and her
move, Turner approached her and told her “if anyone was to call [her] to say
anything, to tell them [she] [did not] know anything†about that night.
At some point
during the trial, L.J. gave her mobile phone number to defense counsel. One hour later, she received two voicemail
messages, including a recorded message that an inmate from Los Angeles County
jail was trying to contact her. She
received similar calls over the next several days. She answered one of the calls and discovered
that Turner was trying to contact her.
She hung up on him.
Chevron security
cameras recorded the incident, and the videos were played for the jury. Also, still photographs were taken from the
videos, and L.J. identified Turner and the other defendants as the people
depicted in the photographs.
name="_ftnref2" title="">[2] Los Angeles County Sheriff Gang Detective
Richard O’Neal reviewed the surveillance videos and was able to identify Turner
and the other defendants. The videos
also depicted John Does 1 and 2. An
audio recording of the incident captured an unknown male voice asking, “Where
you from then?†Another voice asked,
“Where the f--- you from,†followed by two gunshots.
On September 13,
2010, Detective O’Neal interviewed Turner, who waived his Miranda
title="">[3] rights, and admitted he was at the gas station
on the night of the shooting. The
interview was recorded and transcribed for the jury. Turner initially denied being involved. But after watching the surveillance tapes, he
admitted he asked John Does 1 and 2 “Where are you from?†because they were
wearing attire associated with the Bloods on Point (BOP) gang and that a fight
ensued. During the recorded interview,
Detective O’Neal showed Turner a segment of the video where Turner chased John
Does 1 and 2. The recording
included Detective O’Neal’s remark, “So there you are—clear as day—pointing and
running. Shooting that gun at
homie.†Turner responded, “Nah, not
shooting it.†Turner told Detective
O’Neal, “I tried to shoot it at the end, and I went to—I went back—actually
no—actually I went back but it was handed to me afterwards.†When Detective O’Neal pointed out that the
video did not depict someone else handing the gun to Turner, he admitted, “Noâ€
and, “I’ve got a gun in my hand.â€
Detective O’Neal
testified as a gang expert. He worked as
a member of the sheriff’s department gang unit for approximately six
years. He investigated hundreds of
gang-related crimes and conferred with gang detectives on many cases. Detective O’Neal regularly interviewed gang
members, and received training through the sheriff’s department on gangs and
subcultures. He previously testified as
a gang expert 14 times.
Turner told
Detective O’Neal that he was a member of the 40’s Crips and Fifth Blocck Goons
gangs. According to Turner, the Fifth
Blocck Goons and BOP were rival gangs.
Turner had “FBG†tattooed on his chest, referring to Fifth Blocck
Goons. He also had tattoos of “5th†and
“BOP†crossed out on his chest.
Additionally, he had “YG,†for young gangster, tattooed on his
shoulders.
Detective O’Neal
executed a search warrant at Turner’s
house, and found graffiti on a stair railing leading to his apartment reading
“E-S 5th Blocck Goons, YG pop a flop.â€
According to O’Neal, “E-S†stands for East Side and “pop a flop†refers
to shooting BOP gang members, who are derisively called flops by rivals.
Detective O’Neal
testified that East Side Fifth Blocck Goons is a newer gang. The gang was only a few years old, with
approximately 30 members, and identified itself by the number “5†and
“FBG.†According to Detective O’Neal,
when members of south Los Angeles gangs migrate to the Antelope Valley, they
often form alliances or “clique up†with other gangs, while maintaining their
allegiance to their home gang. That is
how the East Side Fifth Block Goons were formed. The gang’s territory is the Shadow Springs
apartment complex. The primary
activities of the gang include gun possession, assaults, and graffiti. Detective O’Neal had investigated other
crimes committed by the East Side Fifth Blocck Goons. Another member of the gang had been found
with a gun during a traffic stop. Detective
O’Neal also personally observed gang vandalism and investigated the crimes from
this case. Detective O’Neal testified
that Turner had a March 10, 2010 conviction for gun possession.
After the
shooting, Turner uploaded a rap song onto his MySpace profile, titled “Ya Don’t
Want It.†In the song, Turner raps: “I’m a East Sider from the turf when I
bang. Black and gray strings and the
flops ain’t a thing. I’m rolling through
the hood blowing weed, swerving lanes.
I’m for East Side Fifth, and I put on the game. Catch you at the Chevron, you niggas know
what’s happening. Run up on your bitch
ass and get the gun clapping. You ain’t
no gang banger, you should’ve just stuck to acting. I’m chilling on the five with my niggas. Got my rag out the pocket, take the safety
off my nine. We’ll be waiting for you
niggas . . . wasting time.
While the homie yell Fifth, I’ll be running from behind. YG Smash banging with a passion. If a nigga ask, let ‘em know I’m flop
bashing. If you with the . . .
no fade I’m blasting. That’s five time
. . . so why you niggas keep asking. . . . [¶] .
. . [¶] . . . I’m B-O-P-K from the
East Side by the way.†According to
O’Neal, “flop bashing†is bashing members of BOP, and “B-O-P-K†refers to BOP
killer. Getting a “gun clapping†is to
shoot a gun.
Detective O’Neal
opined Turner was a member of East Side Fifth Blocck Goons because he was
self-admitted, and because of his tattoos and postings on his MySpace
profile.
In gang culture,
asking someone where they are from is a challenge, resulting in violence. Bloods on Point and the East Side Fifth
Blocck Goons are rival gangs.
Given a
hypothetical based on the facts of this case, Detective O’Neal opined that the
crime was committed for the benefit of and in association with a criminal
street gang.
Detective O’Neal
testified that he obtained L.J.’s phone number, and after searching jail and
courthouse records, determined that two of the calls made to L.J. were made
from the Antelope Valley Courthouse lockup, and eight others originated from
the Men’s Central Jail. Turner was
present at these locations at times corresponding with the calls.
DISCUSSION
Turner contends
there was insufficient evidence in support of the attempted murder counts and
the gang enhancements, and that the videos played for the jury were not
properly authenticated. Essentially
conceding that no proper objection was made to the videos, he contends that any
failure to object constitutes ineffective assistance of counsel. Turner also contends that Detective O’Neal’s
testimony about calls made from jail and the courthouse lockup to one of the
prosecution’s witnesses was inadmissible hearsay. Lastly, he claims cumulative error.
Attempted Murder
Turner challenges the
sufficiency of the evidence for the attempted murder counts.
basis of this claim is that the trial court erroneously admitted surveillance
videos into evidence, and that without these videos, there was inadequate
evidence to support his conviction. In a
related argument, Turner contends that any failure to object to the videos
constitutes ineffective assistance of counsel.
We find no merit in any of these contentions.
Turner complains that the surveillance
videos played for the jury were not properly authenticated. At trial, defense counsel objected that there
was inadequate foundation for the videos.
Specifically, as the
videos were being played, Detective O’Neal was asked to identify a man depicted
in the videos. Defense counsel objected
“Lack of foundation at this particular point.
It has not been laid.†The
objection was overruled. The video
continued to play, and O’Neal was asked to identify a car depicted in the
video. Defense counsel objected, stating
“I’m going to have an ongoing objection with respect to him describing what and
who[,] identification of vehicles and people.
I don’t believe this is the right witness for this.†At sidebar, it was made clear that the
substance of counsel’s objections was to Detective O’Neal narrating the events
in the videos. These are the only
objections in the record. No objection
appears when the People introduced the videos.
Assuming these objections are sufficient to challenge
the authentication of the videos on appeal (People v. Williams (1997) 16 Cal.4th 635, 661;
772, 778), the objections were not well taken, and the videos were
properly admitted into evidence. A film
or other writing may be authenticated by “the introduction of evidence
sufficient to sustain a finding that it is the writing that the proponent of
the evidence claims it is.†(Evid. Code,
§ 1400; see also § 1401.) Two kinds
of evidence are generally used to authenticate a film, including: (1) the testimony of a person who was present
at the time a film was made, who can aver that it accurately depicts what it
purports to show; or (2) expert testimony, indicating that the film is not a
composite or fake. (People v. Bowley (1963) 59 Cal.2d 855, 859-860.) “Circumstantial evidence, content and
location are all valid means of authentication.†(People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
Here,
there was sufficient evidence to authenticate the surveillance videos. Detective O’Neal testified that he received
the videos from the Chevron’s manager.
Turner watched the videos during his taped interview with Detective
O’Neal and confirmed that they accurately depicted him with a gun at the
Chevron gas station. Also, L.J.
identified Turner and his codefendants from still photographs taken from the
videos on the night of the crimes.
The
proper authentication of the videos is also dispositive of Turner’s related
claim that any failure to object to the videos constitutes ineffective
assistance of counsel. “Under both the Sixth
Amendment to the United States Constitution and article I, section 15 of
the California Constitution, a criminal defendant has a right to the assistance
of counsel. [Citations.] This right ‘entitles the defendant not to
some bare assistance but rather to effective
assistance.’ [Citations.]†(People
v. Mitchell (2008) 164 Cal.App.4th 442, 466.) In order to demonstrate ineffective
assistance of counsel, defendant must show that counsel’s performance fell
below an objective standard of reasonableness, and that he was prejudiced by counsel’s performance. (Id.
at pp. 466-467.)
As discussed
meritless, and therefore Turner cannot demonstrate prejudice. Furthermore,
“‘[t]he mere failure to object rarely rises to a level implicating one’s
constitutional right to effective legal counsel.’ [Citation.]
If . . . the record fails to show why counsel failed to
object, the claim of ineffective assistance must be rejected on appeal unless
counsel was asked for an explanation and failed to provide one or there can be
no satisfactory explanation.†(
counsel’s reasons for not interposing a more specific objection to the videos,
and therefore we will not guess at counsel’s rationale (albeit the obvious
reason is that the objection would have been meritless).
To the extent that
we can construe Turner’s brief as a challenge to the sufficiency of the
evidence in support of the attempted murder counts, we find that ample evidence
supports his conviction. “In assessing
the sufficiency of the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it discloses 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.†(People
v. Bolin (1998) 18 Cal.4th 297, 331.)
“The test is whether substantial evidence supports the decision, not
whether the evidence proves guilt beyond a reasonable doubt.†(People
v. Mincey (1992) 2 Cal.4th 408, 432.)
The reviewing court’s “opinion that the evidence could reasonably be
reconciled with a finding of innocence or a lesser degree of crime does not
warrant a reversal of the judgment.†(
849.) Reversal is only warranted when it
clearly appears “‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin,
“‘Attempted murder requires the specific intent to kill and the commission
of a direct but ineffectual act toward accomplishing the intended killing. [Citation.]
Attempted murder requires express malice, that is, the assailant either
desires the victim’s death, or knows to a substantial certainty that the
victim’s death will occur.’
[Citation.]†(
v. Houston (2012) 54 Cal.4th
1186, 1217.) “The act of shooting a firearm toward a victim at close
range in a manner that could have inflicted a mortal wound had the shot been on
target is sufficient to support an inference of an intent to kill.†(
Here, there was ample evidence supporting
Turner’s conviction. There was video and
audio evidence that captured Turner engaged in a confrontation with two rival
gang members, showed Turner with a gun, and captured the sound of it firing
twice. Turner later posted a rap song
admitting to the crime on his MySpace profile.
He also admitted to Detective O’Neal that he brandished a gun as
recorded in the video, although he claimed he did not fire it. These facts adequately support the conclusion
that he attempted to kill the rival gang members, John Does 1 and 2.
Gang Allegations
Turner next contends there
was insufficient evidence to support the gang enhancement allegations because the People
failed to prove that the East Side Fifth Blocck Goons gang was a street gang
having as one of its primary activities the commission of one or more criminal
acts described in Penal Code section 186.22, subdivision (e), whose
members individually or collectively engaged in a pattern of criminal
activity.
To prove a gang is
a “criminal street gang,†the
prosecution must demonstrate it has as one of its “primary
activities†the commission of one or more of the crimes enumerated in Penal
Code section 186.22, subdivision (e), and it has engaged in a “pattern of
criminal gang activity†by committing two or more such “predicate offenses.†(§ 186.22, subds. (e), (f);
605, 617.) “ ‘A pattern of criminal gang activity’ †is defined
as “the commission of . . . two or more of [the predicate offenses],
provided at least one of these offenses occurred after the effective date of
this chapter and the last of those offenses occurred within three years after a
prior offense, and the offenses were committed on separate occasions, or by two
or more persons.†(§ 186.22, subd.
(e).)
It is well settled
that expert testimony may be used to establish the elements of a gang
enhancement. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1330;
1209, 1223.) To qualify as substantial
evidence, expert testimony must be based on reliable information. Police officers may base their testimony on
conversations with gang members as well as information from colleagues and
other law enforcement agencies. (People
v. Gardeley, supra, 14 Cal.4th at pp. 619-620; see also People v. Martinez, supra,
at p. 1330; People v. Olguin (1994)
31 Cal.App.4th 1355, 1370.)
Here, the People
introduced evidence that Turner had a 2010 conviction for carrying a concealed
weapon. In addition to that qualifying offense, the People relied on the
current offenses to establish the predicate offenses. The current crimes are qualifying offenses
under Penal Code section 186.22, subdivision (e). (People
v. Olguin, supra, 31 Cal.App.4th
at p. 1383 [the currently charged offense can be considered as one of the
predicate offenses in establishing a pattern of criminal gang activity].) Carrying a concealed firearm and attempted
murder are qualifying predicate offenses under section 186.22, subdivision
(e)(3) and (32). As for the gang’s primary
activities, Detective O’Neal testified that he had personal knowledge of
vandalism and gun possession committed by other members of the gang, which are
enumerated offenses in section 186.22, subdivision (e)(20) and (23), in
addition to his knowledge of the offenses committed in this case. (People
v. Olguin, at p. 1383.) Even though
the gang was a relatively new gang, and law enforcement had not collected
significant documentation of its activities, Detective O’Neal’s gang expertise
and investigations of the East Side Fifth Blocck Goons gang provide sufficient
support for his opinion and for the jury’s true finding. (See People
v. Martinez, supra, 158
Cal.App.4th at p. 1330.)
Phone Call Evidence
Turner contends the trial
court erred when it admitted Detective O’Neal’s testimony, based on his search
of inmate call records and inmate tracking information, that an inmate (the
inference being that it was Turner) made phone calls to L.J. while in
custody. At trial, defense counsel
objected on both foundation and hearsay grounds. Respondent urges the phone records testified
to are not hearsay, “[b]ecause it appears that Detective O’Neal was merely
testifying to information he viewed regarding outgoing calls that had been
automatically recorded by a computer or other machine, and not entered or
recorded by an individual.†(See
v. Hawkins (2002) 98
Cal.App.4th 1428, 1449-1450 [computer-generated data is not hearsay because it
is not a “statementâ€; there is no possibility of a conscious misrepresentation
by a machine].) We find that the
People, as the proponents of the evidence, failed to establish a sufficient
foundation for the trial court to conclude that the statements fell outside of
the hearsay rule. However, we find that
any error in the admission of the evidence was necessarily harmless.
Detective O’Neal testified
that there are records of calls placed from the county jail facility as well as
the courthouse lockup, and that he was able to search those call records. The records show the specific phone used by
the inmate, and the number dialed by the inmate. He also testified that based on his work
experience in a custodial setting, inmates in custody are constantly tracked,
and that he was able to review those tracking records to determine that
Turner’s locations corresponded to the calls made to L.J. However, Detective O’Neal did not discuss how
these records were collected. Assuming
the call records were automatically recorded by a computer, nonetheless, there
was no evidence of how inmates are “tracked†and no basis on which to rest the
inference that those records were automatically generated by a machine or
memorialized in part or wholly by a deputy or deputies.
“‘Hearsay evidence’ is
evidence of a statement that was made other than by a witness while testifying
at the hearing and that is offered to prove the truth of the matter
stated.†(Evid. Code, § 1200, subd.
(a).) A “‘[s]tatement’ means (a) oral or
written verbal expression or (b) nonverbal conduct of a person intended by him
as a substitute for oral or written verbal expression.†(§ 225.)
Courts have concluded that the hearsay rule applies to computer-
computer-generated information is not a “statement†within the meaning of
section 225, but information entered into a computer by a person is a
statement. (See People v. Nazary (2010) 191 Cal.App.4th 727, 754-755;
The records testified to by
Detective O’Neal were offered to show that calls from the courthouse lockup or
county jail were placed to L.J., and to prove Turner’s presence in the
courthouse or jail at the time the calls were made. Therefore, they were offered for the truth of
the matters contained in the records.
Whether these records are hearsay turns on whether Detective O’Neal was
testifying to the content of log books written or manually entered into a
computer by other deputies, or automatically generated computer records. Even assuming the call records were
automatically generated computer records, we know nothing about the records
proving Turner was in the courthouse lockup or in county jail at the time the
calls were made from those locations, because no foundational evidence of the
nature of the writings was introduced by the People. (See Evid. Code, §§ 403, 405.) Moreover, no attempt was made to
show that the records fell within any exception to the hearsay rule. (In re
Leanna W. (2004) 120 Cal.App.4th 735, 743.)
Turner contends the error
violated his Sixth Amendment right to
confront the witnesses against him.
However, not all erroneous admissions of hearsay violate the
confrontation clause. The confrontation
clause only applies to testimonial statements, and the statements at issue here
were not testimonial. Rather, they are
simply records of phone calls and inmate locations. (See People
v. Gutierrez (2009) 45 Cal.4th 789, 812.)
Finding
no constitutional violation, we conclude that any error in admitting the
evidence was harmless. (
619 [applying the People v. Watson (1956) 46 Cal.2d 818, 836-837 test for erroneous admission
of hearsay evidence].) The testimony about the
phone calls merely corroborated L.J.’s testimony that Turner had called her
from jail and the courthouse lockup, which was ancillary to the issue of
Turner’s guilt of the charges of attempted murder. As discussed above, the evidence of his guilt
for the attempted murder counts was overwhelming. There was also ample evidence of Turner’s
prior felony conviction, and that he possessed a firearm in this case. (Pen. Code, former § 12021.)
4.
Cumulative Error
Having only found one
harmless error, there are no errors to cumulate.
The
judgment is affirmed.
GRIMES,
J.
WE CONCUR:
BIGELOW,
P. J. RUBIN,
J.
name="_ftn1" title="">[1] Some
background facts, concerning the identity and charges against Turner’s
codefendants, are taken from our unpublished opinion in People v. Wallace (Mar. 6, 2012, B233065).
name="_ftn2" title="">[2] The
videos, photographs, and audio recordings are not part of the record on appeal,
because Turner did not file a notice designating the exhibits in the Superior
Court. Accordingly, we denied, without
prejudice, his request to augment the record on appeal to include these
exhibits. (Cal. Rules of Court, rule
8.224.) To the extent that the content
of the exhibits is revealed by other sources in the record, we rely on those in
summarizing the facts.
