P. v. Claycomb

Filed 8/31/09 P. v. Claycomb CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Morris Bruce Jones, Judge. Affirmed.

Daniel G. Koryn, 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, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

Defendant William Claycomb appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of first degree murder (Pen. Code,  187, subd. (a)) and found true the allegations that he personally and intentionally discharged a firearm, proximately causing death (id.,  12022.53, subd. (d)), and that he committed the crime for the benefit of a criminal street gang (id.,  186.22, subd. (b)(1)).

The trial court sentenced defendant to an indeterminate term of 50 years to life in state prison, consisting of 25 years to life for the murder, plus 25 years to life for the firearm use, with defendant to be ineligible for parole for 15 years pursuant to Penal Code section 186.22, subdivision (b)(4).

On appeal, defendant challenges the admissibility of evidence obtained from a search, the sufficiency of the evidence to support the gang enhancement, and the gang experts testimony. We affirm.

FACTS

Prosecution Case

On July 12, 2000, Sylvia Johnson (Johnson) told her boyfriend, Charvez Hamilton (Hamilton), that she was having problems with her car. Hamilton went to Johnsons mothers apartment to fix the car. After Johnson arrived at the apartment, she gave Hamilton the car keys. Hamilton went outside and a few minutes later, Johnson heard five to six gunshots. Johnson went outside and saw Hamilton lying behind her car. He had many holes in his shirt.

Cynthia G. (Cynthia), nine years old, was walking home when she noticed defendant walking towards Hamilton, who was fixing a car. She had seen defendant a few times prior to the date of the shooting. After passing defendant, Cynthia heard what she thought was about 12 fireworks. She turned around and saw Hamilton in a pool of blood, asking for help. Cynthias mother did not want her to become involved, so Cynthia did not identify defendant until 2006.

Josh Rodgers (Rodgers) was walking when he saw defendant, with his arm half extended towards Hamilton; defendant had something black in his hand. Rodgers heard four or five shots and then saw Hamilton lying on the ground. Even though Rodgers knew defendant was the shooter, he did not tell the police in 2000 because he feared for his safety.

Hugo Guizar (Guizar) was talking to friends when he witnessed the shooting. Guizar had seen defendant several times before. Prior to the shooting, defendant crossed the street and told Guizar to go away because something was going to happen. As defendant was passing Guizar, he pulled a gun from his waistband. Defendant shot Hamilton in the back from close range as Hamilton stood behind a car. After Hamilton was on the ground, defendant continued to shoot and then ran from the scene.

When Guizar was shown a group of photographs in 2000, he didnt see defendant in the photos. He did not want to get involved because he was afraid that something might happen to him. When Guizar was shown a photographic lineup in 2006, he selected two photographs and wrote: The person that I remember, they are similar to the ones who appear on the card F with the numbers of the people being numbers three and six. Ultimately, Guizar identified defendant in court at the preliminary hearing and trial as the shooter.

Hamilton was shot 11 times in the torso, and he died from his wounds. Some of his wounds were consistent with his having been shot while lying on the ground.

Los Angeles Police Officer Chris Luna was familiar with the Geer Gang Crips street gang and knew defendant to be a member who went by the moniker of Chill Will.

Los Angeles Police Detective John Parra, a gang expert, testified that defendant was seen throwing up a symbol for the gang in a photograph with fellow gang members. He stated that younger gang members, like defendant, commit crimes to establish a reputation within the gang and to be in good standing with the gang.

Detective Parra opined that defendant committed the shooting for the benefit of the Geer Gang Crips gang: Hamilton was a member of the Playboy Gangster Crips, a rival gang. Being a rival gang member in the Geer Gang Crips territory was grounds for assault or murder. Additionally, the fact that Hamilton was shot numerous times after he had fallen to the ground would give notice to members of other gangs that the Geer Gang Crips were not to be messed with in their territory. It would also intimidate people in the area so they would not talk to the police about the crime.

The evidence recovered from the crime scene included cartridge casings fired from a .40 caliber Smith & Wesson. In 2001, police searched an apartment in Las Vegas where defendant was staying. They found 23 .40 caliber ammunition rounds. At a second apartment in Las Vegas where defendant also stayed, police recovered a shoebox that had Geer Gang Crips written on it.

In 2006, Los Angeles Police Detective David Garrido went to Folsom State Prison to question a gang member, Anthony Perry (Perry), concerning an unrelated murder. Perry told Detective Garrido that defendant had shot Hamilton in 2000. After reviewing a photographic lineup, Perry identified defendant as the shooter. Based on the information received from Perry, the police reopened their investigation into the Hamilton murder.

Defense Case

Kathy Pedzek, a college professor, cognitive psychologist and expert on eyewitness identification, testified concerning the factors affecting the accuracy of witness identification and memory. She opined that she would have doubts about the accuracy of the eyewitness identification of defendant.

DISCUSSION

Evidence From the Search

The trial court conducted an Evidence Code section 402 hearing during the prosecutions case in chief. The offer of proof by the prosecutor was that while defendant was living in Nevada in 2001, police officers conducted a search of defendants residence and found .40 caliber bullets. Defendant objected to the proffered evidence under Evidence Code section 352, claiming the fact that the search was related to defendants arrest on an unrelated drug charge in Las Vegas, and the evidence would be prejudicial in the minds of the jury.[1]

The prosecutor stated that she would not introduce evidence concerning the underlying crime. The trial court ruled that the proffered evidence was highly relevant and that its relevancy outweighed its prejudicial effect.

Las Vegas Police Detective Russell Laws testified concerning the two searches related to defendant. He testified that he searched a residence where defendant was present and recovered 23 .40-caliber bullets. He also searched a different address in Las Vegas when defendant was present and recovered a shoebox that had Geer Gang Crips written on it.

On redirect examination, the prosecutor asked Detective Laws what his understanding was regarding the search of the two residences. Detective Laws replied [t]hat both of them were involved in narcotic sales. Defendants Evidence Code section 352 objection to this testimony was sustained, and the trial court granted his request to strike the testimony. Detective Laws apologized, then answered that defendant had been using both apartments.

After Detective Laws testimony, defendant moved for a mistrial based upon the detectives testimony. Defendant argued that although the testimony was a mistake, not intentional, the bell had been rung. The trial court denied the mistrial, finding that the testimony was not so prejudicial that its admission would deprive defendant of his constitutional rights. The court added that it had already instructed the jury as to evidence that would be stricken by the court, and I dont think we have 13 potted plants sitting there. They have some intelligence. They could understand that that is excluded.

Only relevant evidence is admissible at trial. (Evid. Code,  350.) Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Id.,  210.) The trial court has the duty to determine the relevance and thus the admissibility of evidence before it can be admitted. (Id.,  400, 402.) We review the trial courts determination as to admissibility that turns on relevance for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)

Evidence Code section 352 gives the trial court the discretion to exclude relevant evidence if the probative value of the evidence is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice, confusing the issues or misleading the jury. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) We will not disturb the trial courts exercise of its discretion on appeal unless the court has abused its discretion (People v. Minifie (1996) 13 Cal.4th 1055, 1070), i.e., if its decision exceeds the bounds of reason (DeSantis, supra, at p. 1226).

Defendant has failed to convince us that the evidence recovered during the searches of defendants residences in Las Vegas was more prejudicial than probative. Defendant contends that allowing the evidence eviscerated the heart of his defense, that he did not commit the charged murder. Certainly evidence of the .40 caliber bullets found in the search of defendants residence in Las Vegas likely contributed to defendants conviction. However, that does not make it more prejudicial than probative. For purposes of Evidence Code section 352, evidence is prejudicial if it uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. (Peoplev.Yu (1983) 143 Cal.App.3d 358, 377.) That is not the case here. The trial court did not abuse its discretion in admitting the evidence.

Defendant also complains about Detective Laws inadvertent mention of the fact the search involved narcotic sales. The trial court properly sustained trial counsels objection and struck the testimony. The jury was instructed with CALCRIM No. 222 which states in part that if the testimony is stricken from the record the jury is not to consider that testimony for any purpose. A jury is presumed to have understood and followed the courts instructions. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)

In any event, any error in admitting evidence of the .40 caliber bullets was harmless. Evidentiary error is prejudicial, resulting in a miscarriage of justice and requiring reversal, only if it is reasonably probable that, absent the error, defendant would have received a more favorable result. (Cal. Const., art. VI,  13; People v. Watson (1956) 46 Cal.2d 818, 836.) Here, three witnesses positively identified defendant as the person who shot Hamilton. Officer Luna identified defendant as a Geer Gang Crips member. Detective Parra also identified defendant as a gang member, and he testified as to a motive for the shooting. It is not reasonably probable that defendant would have been acquitted had evidence of the bullets not been admitted.

Sufficiency of the Evidence to Support the Gang Enhancement

Penal Code section 186.22, subdivision (b)(1) (section 186.22(b)(1)) provides that any person who is convicted of a felony committed 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 shall be punished pursuant to that section. Defendant contends that there was insufficient evidence to show that the murder was committed to benefit the gang.

In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) In making this determination, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We also must examine the entire record, not merely isolated bits of evidence. (Cuevas, supra, at p. 261.) The same standard of review applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371; see People v. Vy (2004) 122 Cal.App.4th 1209, 1223-1224.) Substantial evidence is that which is reasonable, credible and of solid valid. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.)

The evidence at trial was sufficient to establish that the murder was gang related. The evidence showed that defendant was a gang member, and Hamilton was a member of a rival gang and was in the territory claimed by defendants gang. Guizar testified that defendant told him before the shooting that something was going to happen. The victim was shot at close range and the shooting continued even as the victim lay on the ground.

Detective Parra testified that being a rival gang member in the Geer Gang Crips territory was grounds for assault or murder. He was aware of cases where a rival gang member walked into rival gang territory and was murdered for simply going into that territory. Detective Parra opined that the shooting would benefit the Geer Gang Crips by creating fear and intimidation. Additionally, by committing the crime, defendant would be able to move up in the gangs hierarchy. It is certainly reasonable to infer that defendant shot the victim to benefit the Geer Gang Crips and to benefit personally from the crime.

While we agree with defendant that not all crimes committed by gang members are to benefit the gang, the case of People v. Albarran (2007) 149 Cal.App.4th 214 is distinguishable and does not assist defendant. In Albarran, a shooting occurred at a birthday party held for the cousin of a Pierce Boys Gang member, but the gang officer testified that the Pierce Boys Gang had no known or relevant gang rivalries, and he knew of no reason for the shooting. Additionally, there was nothing inherent in the facts of the shooting to suggest any specific gang motive. (Id. at p. 227.) The court found insufficient evidence to support the contention that [the] shooting was done with the intent to gain respect. (Ibid.)

In the instant case, however, Detective Parra testified as to the rivalry between defendants and Hamiltons gangs, that Hamilton was in Geer Gang Crips territory, and that shooting Hamilton would serve to send a message to other gangs to stay out of Geer Gang Crips territory. In addition, the manner in which Hamilton was shot would serve to intimidate members of the community so they would not come forward to report crimes committed by the Geer Gang Crips, clearly evidenced by the fact that it took six years after the shooting before the investigation was reopened.

Defendant also relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103 for the proposition that section 186.22(b)(1) requires a showing that the crime committed was intended to facilitate criminal conduct by gang members, that is, other criminal conduct beyond the charged crime. Garcia is not binding on this court. (People v. Burnett (2003) 110 Cal.App.4th 868, 882 [decisions of the United States Court of Appeals are not binding on California courts but are merely persuasive authority].) In People v. Romero (2006) 140 Cal.App.4th 15, Division Four of this District disagreed with the holding of Garcia. We find it to be a better reasoned decision based upon the clear language of section 186.22(b)(1).

In Romero, the court noted that the plain language of section 186.22(b)(1) requires a specific intent to promote any criminal conduct by gang members, rather than other criminal conduct. (People v. Romero, supra, 140 Cal.App.4th at p. 19, italics omitted.) Romero relied on People v. Morales (2003) 112 Cal.App.4th 1176, 1198 for the proposition that there need only be substantial evidence that the charged crime was committed for the benefit of the gang. Romero concluded that section 186.22(b)(1) does not require proof of a specific intent to promote criminal conduct other than the charged offense. (Romero, supra, at p. 20.) We agree and accordingly reject defendants contention.[2]

In summary, substantial evidence supports the jurys finding supporting the gang enhancement.

Gang Experts Testimony

Defendant maintains that the trial court erred in permitting the gang expert to testify regarding the ultimate issue of whether defendant committed the crime to benefit his criminal street gang. We disagree.

As with any other evidence, we review the trial courts decision to admit evidence pertaining to gangs and gang membership for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Waidla, supra, 22 Cal.4th at p. 717.) Gang evidence clearly has a potential for prejudice. (Carter, supra, at p. 1194.) When it meets the test of relevancy, however, it is admissible unless its prejudicial effect clearly outweighs its probative value. (Ibid.; People v. Cardenas (1982) 31 Cal.3d 897, 904-905.)

During the direct examination of Detective Parra, the prosecutor set forth a lengthy hypothetical question based on the facts of the case and asked Detective Parra to opine on whether the crime in the hypothetical fact scenario was committed for the benefit of a criminal street gang. The following colloquy took place:

Q Okay. What is your opinion and the basis of it?

A The basis is that he is a Geer Gang member, committing the crime within Geer Gang area on a rival gang member. The fact that he shot the victim a number of times even after he had fallen to the ground was basically showing that he intended to kill that person and with the number of bullets that are actually shot at the person on the ground that

[Defense counsel]: Objection; speculation, cannot get into the subjects mind as to intent, move to strike.

The Court: Its overruled. Counsel, its his opinion based upon a hypothetical. Its overruled.

During additional questioning, Detective Parra explained that the shooting would make a point that the gang was not to be messed with in their neighborhood, the murder would enhance the reputation of the gang and the member committing it, and it would intimidate people from speaking with the police. The following then occurred:

Q . . . I have to ask this very specific opinion also. Do you have an opinion as to whether the gang member in that hypothetical fact scenario acted with a specific intent to further assist or promote criminal conduct by Geer Crip gang members?

[Defense counsel]: Objection; [Evidence Code section] 352 and cannot get inside the mind of the subject.

The Court: The objection is sustained.

The prosecutor then questioned Detective Parra as follows:

Q . . . Do you have an opinion as to whether the gang member in that hypothetical fact scenario, those acts, whether they furthered, assisted or promoted criminal conduct by Geer Crip gang members?

A Yes.

Q What is your opinion and the basis of it?

A That it did promote the gang, that it enhanced the reputation of the gang by the commission of this crime, that it enhanced the reputation of both the gang and the individual and further benefited the gang because of that.

It is true than an expert may not testify that an individual had specific knowledge or possessed a specific intent. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658.) As the trial testimony indicates, however, Detective Parra did not testify as to defendants specific intent in shooting the victim. His response was to hypothetical questions and was clearly admissible. An expert may properly testify about, inter alia, the size, composition, or existence of a gang, motivation for a particular crime, generally retaliation or intimidation, and whether and how a crime was committed to benefit or promote a gang. (Id. at p. 657.) As the California Supreme Court noted in People v. Gonzalez (2006) 38 Cal.4th 932, there is a difference between testifying about specific persons and hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. (Id. at p. 946, fn. 3.) Detective Parras testimony was proper.

The judgment is affirmed.

JACKSON, J.

We concur:

PERLUSS, P. J.

ZELON, J.

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[1]The Attorney General correctly notes that the admissibility of the shoebox with gang paraphernalia was not discussed during the Evidence Code section 402 hearing. Any claim regarding admissibility of the shoebox is waived. Regardless, the shoebox evidence was relevant and admissible to show that defendant was a member of the Geer Gang Crips.

[2] The Third District similarly agreed with Romero, concluding that Garcia misinterprets California law. (People v. Hill (2006) 142 Cal.App.4th 770, 774.)