P.
v. Williams
Filed
2/26/13 P. v. Williams
CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH JOHN WILLIAMS,
Defendant and Appellant.
B238987
(
Super. Ct.
No. TA115703)
APPEAL from a judgment of the
Robert L.S. Angres, 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 Toni R. Johns Estaville, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * *
Kenneth John Williams appeals from the judgment entered
upon his conviction by jury of first degree murder in violation of
personally and intentionally discharged a firearm
causing great bodily injury and death
(§ 12022.53, subd. (d)), and that he committed the murder for
the benefit of, at the direction of, and in association with a criminal
street gang (§ 186.22, subd. (b)(1)(C)).
The trial court sentenced appellant to 50 years
to life in state prison, calculated as 25 years to life for the murder,
plus a consecutive term of 25 years to life for the firearm
the amount of $7,954.50, plus 10 percent interest from the date of sentencing,
comprised of $7,500 to the Victim Compensation and Government Claims Board
(VCGCB), and $454.50 to the victim’s sister Shaundra Nichols.
fine in the amount of $240 (§ 1202.4, subd. (b)) and imposed and stayed an
equal parole revocation fine
(§ 1202.45).
Appellant
contends (1) there was insufficient evidence to support the gang allegation,
(2) imposition of the restitution and parole revocation fines in the amount of
$240 constituted an ex post facto application of the law, and (3) the trial
court’s restitution order to Ms. Nichols was not supported by substantial
evidence.
We modify the
judgment to reflect restitution and parole revocation fines in the amount of
$200, and to reflect the trial court’s restitution order to be $7,953.50. Appellant is to make restitution to the VCGCB
in the amount of $7,500, and to Ms. Nichols in the amount of $453.50, plus
10 percent interest per year from the date of sentencing. We otherwise affirm.
On July
1, 2010, Monique Burton (Burton) lived with
appellant and his mother on Shauer Street, in the City of
Compton. At approximately 1:30
p.m., appellant arrived home and was “really upset.†He looked like he had been in a fight. Appellant’s clothes were “tugged†and his
shirt was stretched out of shape. He was
not wearing his usual gold necklace.
Appellant went into his bedroom and returned carrying a handgun. He put on a pair of sunglasses and drove away
in a black Jaguar convertible. Vince
Cooper (Cooper) sat in the car’s passenger seat.
Burton went to the
liquor store a few minutes after appellant drove away. She stopped at the intersection of 130th Street and Aranbe and
looked for oncoming traffic. To her left
she saw Dwayne Nichols (Nichols), who appeared to be bent over or kneeling in
the driveway of Cooper’s house.
Appellant got out of a black Jaguar and walked towards Nichols pointing
the gun at him. Burton heard a single
gunshot as she turned the corner and drove away.
Sergeant Howard
Cooper, a homicide investigator with the Los Angeles County Sheriff’s
Department, arrived at the crime scene at approximately 5:00 p.m. Nichols,
who died from a single gunshot wound to the head, was lying in the
driveway. A portion of a gold necklace
lay across his chest. A single shell
casing was found in the street, and a pair of black plastic sunglasses was on
the sidewalk. A small piece of a broken
gold necklace similar to the one discovered on Nichols’s body was also found on
the sidewalk.
Leticia Salas
(Salas) was married to Nichols. Salas
also knew appellant very well. Appellant
had lived in the same house as Salas for seven years and she had been “around
him every day†for the two months prior to the shooting. Salas grew up in the neighborhood and was
familiar with the Corner Pocket Crips street gang
(CPC). She knew that Nichols, appellant,
and Cooper, were all members of that particular gang. A few days before the shooting, Nichols and
appellant got into a heated argument about money and gang business. When Salas retrieved Nichols’s personal property
from the coroner’s office, it contained a pair of sunglasses and a gold
necklace. She immediately recognized the
sunglasses and necklace as belonging to appellant.
Sergeant Cooper
interviewed appellant on August 6, 2010. Appellant had suffered an injury to the right
side of his neck, which was healing.
Sergeant Cooper obtained a DNA sample from appellant. Juli Watkins, a senior criminalist with the
Los Angeles County Sheriff’s crime laboratory, testified that an analysis of
fingernail clippings taken from Nichols showed the presence of appellant’s DNA.
Los Angeles
County Sheriff’s Detective John Ganarial testified as the prosecution’s gang
expert. He was assigned to the operation
safe streets gang unit (OSS) to gather
intelligence and investigate gang activity.
Detective Ganarial developed his expertise in criminal street gangs over
his lengthy law enforcement career by speaking with gang members on a daily
basis in the gang module at Men’s Central Jail where he worked for four
years. As a patrol deputy for seven
years, he investigated gang crimes and arrested numerous members of the
CPC. Over the past four years he had
become familiar with the CPC members and was knowledgeable of their activities
in his role as a detective with the OSS.
Detective Ganarial opined
that there were approximately 150 members of the CPC, ranging from older
members called original gangsters (OG’s), who had done their time and were not
expected to commit serious crimes, to workers who were actively committing
crimes to gain respect for the gang, and youngsters who committed minor
crimes. CPC’s primary activities
included murder, robbery, shootings, assaults with firearms, carjacking, and
sales of narcotics. In support of this
statement, Detective Ganarial described two recent cases in which he was the
investigating officer. In one, a gang
member was convicted of possession of a firearm by a felon, and in the other, a
different gang member was convicted of robbery.
Appellant was a
self-admitted member of the CPC with the moniker “K.J.†Information obtained from field
identification cards also identified appellant as a CPC member, who associated
with other known CPC gang members, including Cooper. Nichols was also a member of the CPC and was
considered an OG.
Detective
Ganarial testified to the habits and culture of gangs and the central role in
gang culture of respect and reputation.
He explained that gang members want to be feared by the ordinary
citizens who live in the neighborhood because fear equals respect. But gang members also want respect from rival
gang members and from people within their own gang. Disrespect requires retaliation regardless of
the source, and failure to retaliate could result in being disciplined by your
own gang. A gang member’s reputation
would be hurt and he would be labeled a “punk†if he failed to retaliate when
disrespected by an older member of his own gang.
Responding to a hypothetical based
on the facts of this case, Detective Ganarial opined that the shooting and
killing of Nichols was committed for the benefit of, in association with, and
directed by a criminal street gang.
Appellant enhanced his own reputation because he showed others he was
not a “punk†by retaliating against someone who had disrespected him. But Detective Ganarial’s opinion was based on
the fact that Nichols’s shooting enhanced the reputation of the CPC among rival
gang members. It sent a message to rival
gangs that the CPC did not tolerate disrespect even from their own OG members,
and retaliated in a deadly fashion when it occurred.
DISCUSSION
of the Evidence in Support of the Gang Allegation
Appellant contends that there is insufficient
evidence to support the jury’s true finding on the section 186.22 gang
enhancement allegation. Appellant does
not contest that the CPC is a criminal street gang or that he, Nichols, and
Cooper are members of the gang. He
argues that there was insufficient evidence that the crime was committed in
association with the gang and that he had the specific intent to promote,
further, or assist the criminal conduct of any gang member. He argues that the only evidence on this
issue was testimony by the expert witness and there was no substantive factual
evidentiary basis to the gang expert’s testimony. This contention is without merit.
“In considering
a challenge to the sufficiency of the evidence to support an enhancement, we
review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.]
We presume every fact in support of the judgment the trier of fact could
have reasonably deduced from the evidence.
[Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding.
[Citation.] ‘A reviewing court
neither reweighs nor reevaluates a witness’s credibility.’ [Citation.]â€
(People v. Albillar (2010) 51
Cal.4th 47, 59–60 (Albillar).)
C. Relevant
Authority
The gang
enhancement in section 186.22, subdivision (b)(1) imposes additional punishment
when a defendant commits a felony “for the benefit of, at the direction of, or
in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members.â€
To establish a
gang enhancement, the prosecution must prove two elements: (1) that the crime was “committed for
the benefit of, at the direction of, or in association with any criminal street
gang,†and (2) that the defendant had “the specific intent to promote, further,
or assist in any criminal conduct by gang members . . . .†(§ 186.22, subd. (b)(1).) The crime must be “‘gang related.’†(People
v. Gardeley (1996) 14 Cal.4th 605, 622, 625, fn. 12; People v. Castaneda (2000) 23 Cal.4th 743, 745 [gang enhancement
statute “increases the punishment for some gang-related crimesâ€];
47, 56 [gang enhancement statute “applies when a crime is gang relatedâ€].) A defendant’s mere membership in the gang does
not suffice to establish the gang enhancement.
(People v. Gardeley, supra, at
pp. 623–624.) Rather, ‘“[t]he crime
itself must have some connection with the activities of a gang.’†(In re
Frank S. (2006) 141 Cal.App.4th 1192, 1199.) “[T]o prove the elements of the criminal
street gang enhancement, the prosecution may, as in this case, present expert
testimony on criminal street gangs.
[Citation.]†(
1040, 1047–1048.)
A gang expert
properly may testify about gang affiliation and activity where such evidence is
relevant to an issue of motive or intent.
(See People v. Funes (1994) 23
Cal.App.4th 1506, 1518; People v.
Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew).) A gang expert
properly may testify about “whether and how a crime was committed to benefit or
promote a gang.†(Killebrew, supra, at p. 657.)
Similarly, a gang expert may testify about whether a defendant acted for
the benefit of a gang, even though the question is an ultimate factual issue in
the case, if such matters are beyond the jury’s common experience. (People
v. Valdez (1997) 58
Cal.App.4th 494, 506–509; Killebrew,
supra, at p. 651, citing Evid. Code, § 805 [“Otherwise admissible expert
opinion testimony which embraces the ultimate issue to be decided by the trier
of fact is admissibleâ€].) ‘“Expert
opinion that particular criminal conduct benefited a gang’
. . . can be sufficient to support the . . . gang
enhancement. (People v. Albillar, supra,
51 Cal.4th at p. 63.)†(
1048.)
Element: For the Benefit of Any
The first element of the gang enhancement
is satisfied by showing the crime was committed for the benefit of a criminal
street gang. (§ 186.22, subd. (b)(1).)
There was
substantial evidence in this case from which the jury could infer that Nichols
disrespected appellant, and appellant retaliated to enhance both his and the
gang’s reputation. Two days prior to the
shooting, Salas witnessed a heated argument between Nichols and appellant over
money and gang business. There was
evidence that appellant had been involved in a physical altercation with
somebody immediately prior to the shooting.
Burton, who had known
appellant all his life, testified that he appeared “upset,†his clothing was
disheveled, and he was not wearing his usual necklace. Appellant’s neck was scratched and his DNA
was found under Nichols’s fingernails.
Appellant’s broken necklace and sunglasses were found at the scene of
the crime.
Contrary to
appellant’s contention, Detective Ganarial’s testimony did not stand alone but
provided context for the actions of appellant.
He testified that these particular violent crimes enhanced the
reputation of not only the gang member who did the shooting, but the gang as a
whole. Violent crimes instill fear and
intimidation into the community as a whole.
Burton was told by
several people not to testify against appellant and she was fearful of being
shot in the head for doing so.
Furthermore, as Detective Ganarial explained, the shooting of an OG by a
member of his own gang also instilled fear in rival gangs and showed that the
CPC would not tolerate disrespect from anyone.
We find no merit
to appellant’s contention that Detective Ganarial’s expert opinion was “pure
speculation†and not based on facts.
Detective Ganarial is a well-seasoned gang expert with 15 years
experience as a police officer, the majority spent in Compton where the CPC
was active. He had been assigned to the
gang unit for the previous four years where he had extensive contact with the
CPC gang members and became knowledgeable of their activities. The prosecutor’s hypothetical question was
rooted in the facts shown by the evidence and was not based on ‘“assumptions of
fact without evidentiary support.’†(
Cal.4th 959, 1008.) “A gang expert may
render an opinion that facts assumed to be true in a hypothetical question
present a ‘classic’ example of gang-related activity, so long as the hypothetical
is rooted in facts shown by the evidence.â€
(People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1551, fn. 4.)
Detective Ganarial, an expert on gang culture in general and the CPC in
particular, was qualified to explain how criminal conduct could enhance the
gang’s reputation or benefit the gang. (
209–210.)
The jury could
reasonably infer from all of the evidence that appellant shot and killed
Nichols in order to increase the gang’s notoriety in its territory, thereby
benefitting the CPC.
Element: Specific Intent
With respect to
the requirement that appellant committed the felony “with the specific intent
to promote, further, or assist in any criminal conduct by gang members,†(§
186.22, subd. (b)(1)), appellant need only have had the specific intent to
promote, further, or assist in any criminal conduct by gang members, including
the current offense, and not necessarily other criminal conduct by gang
members. (See Albillar, supra, 51 Cal.4th at pp. 64–65.) “[T]the scienter requirement in section
186.22(b)(1)—i.e., ‘the specific intent to promote, further, or assist in any
criminal conduct by gang members’—is unambiguous and applies to
requirement that the conduct be ‘apart from’ the criminal conduct underlying
the offense of conviction sought to be enhanced.†(Id. at
p. 66.) Although appellant acted alone,
there was sufficient evidence to demonstrate that he was a member of the gang,
and that his conduct in shooting Nichols was gang-related, as explained
above. When appellant is a gang
participant, and, acting alone, commits a gang-related felony, appellant has
promoted, furthered, or assisted in felonious conduct by a gang member—i.e.,
himself.
title="">[3]
A reasonable
juror could conclude based on the evidence presented at trial that when
appellant shot and killed Nichols it was gang-related conduct, which was
committed to retaliate against Nichols for disrespecting appellant, enhance the
gang’s reputation for violence, and help appellant maintain the respect he
required as a member of the gang.
Therefore, we conclude that substantial evidence supports the finding
that appellant committed the felony with the specific intent to promote
criminal conduct by gang members.
Restitution and Parole Revocation Fines Should be Reduced to $200
At sentencing, the trial court
stated that it intended to impose a $200 restitution fine pursuant to section
1202.4, subdivision (b)(1), a fine the court stated it understood to be “the
minimum.†The court then stated that the
fine would be $240. The trial court also
imposed a parole revocation fine in the same amount, pursuant to section
1202.45.
Appellant contends that the $240
fines should both be reduced to $200, the minimum fine that could be imposed
pursuant to sections 1202.4, subdivision (b)(1) and 1202.45 when the crimes
were committed, because to do otherwise violates ex post facto principles. The People agree.
We agree with the People. Although sentencing took place on January 27, 2012, and the minimum
fines were increased to $240 as of January
1, 2012 (Stats. 2011, ch. 358, § 1), the minimum fines at the time
appellant committed his offense were $200 (Stats. 1996, ch. 629, § 3). Because the trial court intended to impose
the minimum fines, and the minimum fines at the time appellant committed the
offense were $200, the fines should both be reduced to $200. (People
v. Downing (1985) 174 Cal.App.3d 667, 672.)
Trial Court’s Restitution Order is Modified
The People’s
sentencing memorandum contained documentation from the VCGCB, which showed that
the funeral expenses totaled $7,953.50, of which $7,500 was paid by VCGCB.
At the sentencing
hearing, the trial court ordered appellant “to pay direct restitution to the
victim, pursuant to Penal Code section 1202.4 (f) in the amount of $454.50 plus
interest directly to Ms. Nichols, in the amount of $7,500 plus 10 percent
interest, payable to victim restitution fund for the funeral expenses that were
paid for the victim in this case.â€
and fees and informed appellant of his right to appeal. After a discussion to clarify the amount to
be paid to the VCGCB, the court asked the parties if there was “anything
else?†Defense counsel made no objection
to the restitution order and failed to request a restitution hearing.
Appellant
contends that there was insufficient evidence that Ms. Nichols incurred any
out-of-pocket expenses and the trial court erred by ordering restitution in the
amount of $454.50.
name="_ftnref5" title="">[5] The People contend that appellant forfeited
the restitution issue by failing to object at the sentencing hearing. We agree with the People.
Section 1202.4,
subdivision (f) provides that “in every case in which a victim has
suffered economic loss as a result of the defendant’s conduct, the court shall
require that the defendant make restitution to the victim
or victims
in an amount established by court order, based on the amount of loss claimed by
the victim or victims or any other showing to the
court.†A claim that a restitution
order is unwarranted by the evidence, as opposed to being unauthorized by
statute, is forfeited if neither raised in the trial court by objection
nor by a request for a hearing to determine the amount. (People
v. Brasure (2008) 42 Cal.4th 1037, 1075 (Brasure).) Here, appellant
made no objection when the trial court announced the amount of the victim
restitution it was ordering, nor did he request a hearing to contest that
amount. Consequently, his claim that the
restitution order was unsupported by the evidence has been forfeited.
Appellant’s
reliance on In re K.F. (2009) 173
Cal.App.4th 655 is misplaced. There,
during a restitution hearing arising from a juvenile delinquency proceeding,
the trial court denied a request by the juvenile’s counsel for a continuance to
permit him to obtain records related to the victim’s medical expenses; it then
declined to stay the proceedings pending an appeal by the juvenile, and issued
a restitution order. (
Brasure, the juvenile had not forfeited his challenges to the
sufficiency of the evidence supporting the amount of restitution ordered. (In re
K.F., supra, at pp. 660–661.) Here,
unlike In re K.F., appellant neither objected to the amount of
restitution nor requested an evidentiary hearing. Under the circumstances, the holding in Brasure
is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) In sum, appellant has forfeited
his contention of error regarding the restitution order.
The
restitution order is modified only to correct the mathematical error in
the trial court’s calculation. The
amount of direct restitution appellant is ordered to pay to Ms. Nichols is
$453.50 and not $454.50, i.e., the difference between the amount billed and the
amount paid by the VCGCB.
The judgment is
modified to reflect a restitution fine pursuant to section 1202.4, subdivision
(b), in the amount of $200 and a restitution fine pursuant to section 1202.45
in the amount of $200, the latter to be suspended unless appellant’s parole is
revoked. The judgment is also modified
to reflect the trial court’s restitution order pursuant to section 1202.4,
subdivision (f) in the amount of $7,953.50.
Appellant is to make restitution to the VCGCB in the amount of $7,500,
and to Ms. Nichols in the amount of $453.50, plus 10 percent interest per year
from the date of sentencing. The
superior court is directed to prepare an amended abstract of judgment
reflecting these modifications and to forward a copy to the Department of
Corrections and Rehabilitation.
As modified, the
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
ASHMANN-GERST
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
FERNS
name="_ftn1" title="">[1] All
statutory references shall be to the Penal Code unless otherwise noted.
funeral expenses totaled $7,953.50 and not $7,954.50. The court miscalculated by one dollar the
amount of out-of-pocket expenses to be paid directly to Ms. Nichols.
