P. v. Williams

Filed 10/16/06 P. v. Williams CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark V. Mooney, Judge. Affirmed as modified.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle S. Brodie and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

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SUMMARY

Clarence Williams was convicted of two counts of attempted premeditated murder and one count each of assault with a deadly weapon, discharge of a firearm with gross negligence and possession of a firearm by a felon. Personal use and gang allegations were also found true. The trial court sentenced Williams to a term of 62 years to life in state prison. Williams appeals, claiming sentencing error. We agree (and the People concede) that one error requires modification of his sentence but otherwise affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

Brothers Omar, Darwin and Dennis Vanegas and Dennis’ wife Xiomara Molina lived in an apartment in the area of Ursula Avenue and Tecano Street in Los Angeles. They were all immigrants from Honduras. None of them was a member of a criminal street gang.

At about midnight on September 4, 2004, the Vanegas brothers and Molina (nine months pregnant) were returning home after watching a soccer game. As they neared their home on Tecano Street, three Black men including Williams yelled at them that they should not walk on their street and shouted “Fuck Mexicans.” The Vanegas brothers and Molina started walking faster.

Williams, wearing a white T-shirt and gloves with metal knuckles, ran in front of the group and hit Omar in the face. Omar fell into the street. The two men with Williams began pushing Dennis and Xiomara, yelling and making hand signs. Dennis screamed that Xiomara was pregnant and held her. The assailants stuck their chests out like they wanted to fight and put up one hand with their index finger and thumb out. They hit and kicked Dennis.

One of the two assailants (wearing glasses and a sweater around his waist) then took out a handgun and fired twice at Omar, holding the gun sideways. Williams and one of the others struck Omar and Darwin in the chest, head, back and legs. They would go to Dennis and Xiomara and then return again to hit Omar and Darwin. The man with the glasses passed the gun to Williams, and he fired two shots at Omar and Darwin. Williams and another of the men approached Omar and hit him on the head with the gun until he bled. Omar’s ribs were also broken.

Dennis and Xiomara looked for the apartment door with Omar yelling for Xiomara to get inside. From a distance of about 6 feet, Williams pointed his gun at Xiomara and Dennis and pulled the trigger, but the gun just clicked as though it were out of bullets. Xiomara screamed for someone to open the door. When someone opened the door, Williams and the two others with him ran.

Two police officers (David Dilkes and Robert Murray) heard about the incident on their radio and saw three Black men walking in the area. Williams was wearing a blood-stained T-shirt, walking with a limp and looking winded and sweaty. Believing the men could be the victims of the incident, the officers approached, but the other two men ran, and Williams was detained. The officers recognized the two others as Tommy Daniels (wearing the glasses) and Marquis Holloway, but they were not caught.

In a field show-up that night, Omar, Xiomara and Dennis each identified Williams as the man who shot at Omar.

Williams was charged as follows: assault with a deadly weapon by means likely to produce great bodily injury (count 1); two counts of attempted willful, deliberate and premeditated murder (counts 2 and 3); discharge of a firearm with gross negligence (count 5); and possession of a firearm by a felon (count 6). There were personal use allegations as to counts 1, 2 and 3; a great bodily injury allegation as to count 1; and further allegations that Williams had committed these offenses for the benefit of a criminal street gang.

A month later, Omar and Dennis also identified Williams at a live line-up with six men at the police station. Omar, Xiomara and Dennis identified Williams again in court as the man who hit and shot at Omar.

DNA analysis of the blood on Williams’s shirt matched Dennis’s blood.

In January 2005, a sheriff’s deputy (Ulises Urbina) conducted a routine search of Williams’s county jail dorm room. Under Williams’s mattress, the deputy found a letter addressed to Williams’s girlfriend (Hilary Williams), and Williams admitted it was his. In the letter, Williams asked his girlfriend to “talk to Mo-Jo and let him know I said I need his help on stopping these people [the victims] from coming to court on me.” He provided the victims’ names, phone numbers and address in the letter and said he wanted to “pressure them motherfuckers.” He wrote that the “fucking victims” “ke[pt] on coming to court,” but if they did not testify, he had a “100 percent” chance to win.

At trial, the People presented evidence of the facts summarized above. Officer Paul Funicello testified as a gang expert and described the customs and actions of the Black P-Stones, a Blood gang which claimed the area of Ursula Avenue and Tecano Street. The Black P-Stones were archrivals of the Hispanic 18th Street gang which claimed neighboring territory. The Black P-Stones preyed on Hispanics believing they might be 18th Street gang members.

Officer Robert Murray testified that gang members work their way through the ranks by committing crimes, especially crimes against rival gang members. Holloway admitted to being a P-Stone gang member, and Officer Murray had seen Holloway and Daniels throwing gang signs on a corner in January 2004.

About one week before the shooting and in the same vicinity, Officers Funicello and Murray saw Williams wearing a red shirt under a white shirt--an indication of Blood membership. Williams admitted he was a Black P-Stone member and that his gang name was “Black.” His cell phone listed numerous monikers of known Black P-Stone gang members. Officer Funicello opined that Williams was at the “soldier level” because he was “out engaging in criminal activity[,] doing work for higher ups within the gang.” Officer Funicello testified that the crimes were likely committed for the benefit of and in association with Williams’s gang.

Williams testified in his own defense. On the night of the incident, he said he had been talking on his cell phone as he walked down the street with his friend Greg who was ahead of him. At the corner, Williams saw five Hispanic men and a woman with Greg and heard the sound of breaking glass. One of the men was breaking beer bottles and giving them to the other men. The men hit Greg and Williams and cut Williams’s arm and pants with glass. While they continued to fight, another friend of Williams’s named Isaiah came to help. Williams limped away and his friends followed. No one said, “Fuck Mexicans,” no one had a gun and no one had brass knuckles.

Williams said he had denied being a gang member to Officer Murray five times until the officer said he could arrest Williams for lying; then he said he was a Black P-Stone member. He said Greg and Isaiah were not gang members (but acknowledged that Holloway and Daniels were affiliated with the gang). He said “Black” was just an expression, not a name.

A forensic expert testified that it looked like Williams’s pants had been cut with something sharp.

The jury found Williams guilty on all counts and found true the gang and firearm allegations; the great bodily injury allegation was found not true. The trial court sentenced Williams to a term of 62 years to life in state prison calculated as follows: 15 years to life plus 20 years for the firearm enhancement and 10 years for the gang enhancement on count 2; a consecutive mid-term of 3 years plus 4 years for the firearm enhancement and 10 years for the gang enhancement on count 1; and concurrent terms for count 3, 5 and 6.

Williams appeals.

DISCUSSION

I. Williams Has Failed to Demonstrate Prejudicial Error in the Trial Court’s

Admission of Gang Expert Testimony.

According to Williams, the findings on the gang enhancements must be reversed because his trial counsel failed to object to gang expert testimony that the charged crimes were committed for the benefit of and in association with a criminal street gang. We disagree.

At trial, Officer Funicello was presented with a hypothetical based on the facts of this case. Assuming these facts to be true and asked for his opinion, the officer testified that he believed the crime had been committed in association with and in furtherance of or for the benefit of the Black P-Stone gang. Asked whether Williams had the specific intent to assist, defense counsel objected to the question as “leading,” and the objection was sustained. The officer then went on to testify as to all the facts on which he based his opinion that the crimes were committed in furtherance of and in association with the Black P-Stone gang.

Williams says this testimony was inadmissible because the witness was prohibited from expressing an opinion as to Williams’s guilt and invaded the province of the jury because he “told the jury in no uncertain terms that [Williams] was guilty of violating Penal Code section 186.22, subdivision (b)(1).”[1] Defense counsel failed to properly object and thus provided ineffective assistance of counsel in Williams’s view.

Opinion testimony based on a hypothetical is admissible. (People v. Gardeley (1997) 14 Cal.4th 605, 618; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209.) Because Williams never objected to the testimony as improper expert opinion, he waived this claim of error. (People v. Dennis (1998) 17 Cal.4th 468, 517; People v. Webb (1993) 6 Cal.4th 494, 533.) In any event, even assuming error, it is not reasonably probable Williams would have obtained a better result absent this testimony. Apart from the opinion testimony of Officer Funicello to which Williams has objected, there was considerable evidence that the crimes were committed for the benefit of or in association with a criminal street gang. Just one week before the crimes, Williams admitted Black P-Stone membership and his gang moniker (“Black”). His cell phone directory was full of known Black P-Stone monikers. He wore clothing signifying Blood membership. During the attack, the men flashed hand signs and made derogatory racial comments to the victims who appeared to be the same race as the Black P-Stones’ arch rivals. Just after the shooting, Williams was found with two known Black P-Stones and they both ran when they saw the police, suggesting their consciousness of guilt. On this record, the admission of this evidence could not have prejudiced Williams. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Valdez (1997) 58 Cal.App.4th 494, 511.)

II. Williams’s Sentence on Counts Two and Three Should Be Modified.

The People concede and we agree that the abstract of judgment must be modified as to counts 2 and 3 to delete the 10-year gang enhancements imposed under section 186.22 as the statutory scheme mandates a 15-year minimum parole eligibility period instead because Williams was sentenced to a life term on those counts.[2] (People v. Lopez (2005) 34 Cal.4th 1002, 1004-1007.)

DISPOSITION

The judgment is modified to delete the 10-year gang enhancements as to counts 2 and 3 imposed under section 186.22, subdivision (b)(1)(C) and to reflect the 15-year minimum parole term under section 186.22, subdivision (b)(5). In all other respects, including the imposition of the 10-year enhancement on count 1, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment consistent with this opinion. The superior court clerk is then directed to deliver the corrected abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

JOHNSON, J.

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[1] All undesignated statutory references are to the Penal Code.

[2] In his opening brief, Williams erroneously referred to counts 1 and 2 but in his reply brief clarified that he meant counts 2 and 3. In light of the argument in the opening brief, the People only conceded as to count 2, but the same analysis applies to count 3. The 10-year enhancement on count 1 remains.