English
Filed 3/8/13 P. v. English CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTHONY LAMONT ENGLISH,
Defendant and
Appellant.
F061375
(Super.
Ct. No. BF132171A)
APPEAL from
a judgment of the Superior Court
of
John R. Brownlee, Judge.
Gabriel
Bassan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook
Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted defendant Anthony Lamont English of
selling or furnishing marijuana for the benefit of or in association with a
Code, § 11360, subd. (a); Pen. Code,
possessing marijuana for sale for the benefit of or in association with a
criminal street gang (Health & Saf. Code, § 11359; § 186.22,
subd. (b)(1); count 2), and actively participating in a criminal street gang
(§ 186.22, subd. (a); count 3). He
was sentenced to a total unstayed term of five years in prison and ordered to pay
various fees and fines.
name="_ftnref2" title="">[2]
In our
original opinion, filed May 9, 2012,
we affirmed the judgment in its entirety.
The California Supreme Court denied review without prejudice to any
relief to which defendant might be entitled after that court decided
Following
filing of the state high court’s opinion in People
v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez),
defendant moved to recall the remittitur.
As a result of Rodriguez and
the Attorney General’s concession defendant was entitled to reconsideration in
light of that case, we recalled the remittitur, vacated our prior opinion, and
reinstated the appeal for the limited purpose of ruling on the merits of
defendant’s claim of the applicability of Rodriguez
to the facts of his case. (See
396-397.) We now conclude defendant’s
conviction on count 3 must be reversed and his sentence modified accordingly.
Around 7:30 p.m.
on May 15, 2010,
Bakersfield Police Officers Bender and Paiz pulled into the parking lot of the
Aneese Market, which is located in the 600 block of Dr. Martin Luther King,
Jr., Boulevard (MLK) in Bakersfield. Defendant, Michael Black, and a Mr. Mannings
were standing about 20 feet east of the store’s front doors. Bender saw defendant extend his right arm and
place a small, dark object into Mannings’s extended hand. Mannings immediately began walking quickly
away from the patrol car while placing his hand into his right front
pocket. Based on his training and
experience, including his knowledge of regular narcotics activity at the Aneese
Market, Bender believed he had witnessed a hand-to-hand narcotics
transaction.
Mannings
was stopped and searched, and approximately one to two grams of high-quality
marijuana were found in his front pocket.
The marijuana constituted a usable amount, and had a street value of $20
to $40. Mannings was arrested. Defendant was also searched. Although he had no money on his person,
currency was found on Black. On at least
four or five occasions, most often in the same area of MLK, Bender had seen one
person selling $20 worth of marijuana and a second person collecting the money.
changed hands prior to the officers’ arrival.
Defendant
was wearing dark-colored cargo shorts that sagged five or six inches from his
waist, exposing royal blue basketball-type shorts underneath. In defendant’s pocket were a vehicle key and
what looked like house keys. The vehicle
key matched a Mitsubishi Galant parked in the 1500 block of Gorrill Street, the
street directly north of the store. On
the passenger side floorboard were torn plastic baggies. In the driver’s door map pocket was a plastic
bag containing approximately 14 grams of high-quality marijuana that was
consistent with the marijuana recovered from Mannings. The quantity of marijuana in the car had a
value of about $200 to $250 in bulk, but more if sold in pieces with a typical
street price of $20 per gram. Also found
in the driver’s door map pocket was defendant’s driver’s license. In response to a hypothetical question that
mirrored the evidence presented, Bender opined that the marijuana in the car
was possessed for sale.
Officer
Beagley contacted defendant and advised him of his rights. Beagley asked defendant if he was still from
the Eastside, meaning the Eastside Crips.
Defendant said he was.
name="_ftnref4" title="">[4] Asked why he had the keys to the car,
defendant said he found them. Beagley
asked defendant if he was ever in the car.
Defendant first said no, but, after being told his driver’s license had
been found inside, admitted he was in the vehicle earlier in the day.
Officer
Littlefield, who was assigned to the Bakersfield Police Department Special
Enforcement Gang Unit, testified as the prosecution’s gang expert. He explained that the Eastside Crips (who the
parties stipulated were a criminal street gang in Kern County) had a
traditional territory, and that MLK was a major thoroughfare through the
traditional boundaries of the gang.
name="_ftnref5" title="">[5] The Aneese Market was a particular stronghold
for the Eastside Crips, who were associated with the color royal blue.
Littlefield
had contact with Eastside Crips almost every working day. From his training, experience, and
conversations with them, he learned that their primary criminal activities were
assaults with deadly weapons, murders, burglaries, thefts, narcotics sales
(including sales of marijuana), and weapons violations.
Littlefield
researched defendant in various law enforcement databases, and he summarized
booking records, prior offense reports, and street checks for the jury. Littlefield also reviewed the offense reports
concerning the present case. He found the
subjects with whom defendant was contacted and the activity significant. Littlefield also found it significant that
defendant was wearing a necklace with “AMP†on it. When Beagley asked defendant if it referred
to his gang moniker, defendant affirmed that it did and that he went by that moniker
in the area. In addition, Littlefield
found the location to be important.
Littlefield had been involved in and was aware of numerous
investigations involving the Aneese Market, with Eastside Crips being involved
in sales of narcotics, including marijuana, and weapons violations. Someone who was not a member or an affiliate
of the gang would not be allowed to sell drugs at that location without severe
and violent repercussions from members of the Eastside Crips, because the
person would be competing with the Eastside Crips’ money flow.
Based on
everything he reviewed, Littlefield opined that on May 15, 2010, defendant was
a member of the Eastside Crips criminal street gang. In answer to questions that set out the
evidence presented in hypothetical form, Littlefield further opined that the
sale of marijuana was for the benefit and in furtherance of the Eastside
Crips. Selling marijuana or drugs at the
Aneese Market benefited the Eastside Crips by allowing the individual gang
member to have a means of income without needing legitimate employment; the
monies derived from the narcotics sales provided financial ability for the
individual to purchase firearms and additional narcotics for sale, pay for
daily living expenses, and support in-custody members of the gang. The crime also furthered the gang as a whole
by establishing and maintaining a foothold in that particular area, which
allowed other gang members to conduct their criminal
activities in the same area and reap similar benefits. By establishing the foothold, and maintaining
the gang’s status and stronghold at that location as well as within the
traditional boundaries of the gang, the crime also promoted, furthered or
assisted gang members in criminal conduct.
An Eastside Crip selling marijuana at that particular location prevented
other gangs from being able to “set up shop†and sell there.
Littlefield
further opined that the possession of marijuana for sale was for the benefit
and furtherance of the Eastside Crips.
He explained that the use of a vehicle as a storage place for weapons
and narcotics was a longstanding practice of the Eastside Crips, allowing them
to make it difficult for law enforcement to locate the main source of their
narcotics for sale. The possession for
sale promoted, furthered, or assisted members in criminal conduct, because
maintaining the gang’s status in the area with one Eastside Crip selling
narcotics there would keep members of other gangs from coming into that area to
“set up shop.â€
Littlefield
opined that, even assuming an Eastside Crip gave away or furnished marijuana to
someone at the Aneese Market, it still would benefit the gang by establishing a
customer base. Furnishing an initial
dose of narcotics is a common tactic used to get a person accustomed to coming
to one seller and one location to purchase narcotics. It also promotes, furthers, or assists gang
members in criminal conduct by bringing a customer base back to that one
location to purchase additional narcotics.
II
Evidence
Maurice
Bellamy owned the Mitsubishi Galant involved in this case. The marijuana found in the car was his. Bellamy was in the Aneese Market when police
came to the vehicle. When he first
exited the store and saw the police, he walked away and left with a friend
whose car was parked nearby. They drove
around for about 30 minutes, then returned to the market when Bellamy received
a call from his sister, saying the police had his keys. The police returned Bellamy’s keys to him and
did not impound the vehicle. Bellamy
told officers the marijuana was his. He
had his medical marijuana card with him and was not arrested.
Bellamy had
thought he had his keys with him, but apparently he had left them on top of a
post in front of the store. He was
acquainted with defendant, but did not let him drive the car anytime that
day. He was not sure how defendant’s
driver’s license came to be in the vehicle.
Harlan
Hunter, a private investigator and criminal justice instructor at Bakersfield
College, testified as the defense’s gang expert. He was familiar with the Eastside Crips and
believed Littlefield was correct about the gang’s traditional territorial
boundaries. Hunter grew up in East
Bakersfield. When he was young, it was
primarily an African-American community.
Over the years, however, it had become predominantly Hispanic, with
perhaps 35 percent of the community still African-American. Gangs constituted a very small percentage of
that population. There were individuals
who were not gang members who engaged in narcotic sales in the area, and there
were also Hispanic gangs who controlled territory and sold drugs in the
area.
Hunter
reviewed the materials concerning defendant about which Littlefield
testified. In Hunter’s experience,
booking sheets can be unreliable. They
ask if the person belongs to or associates with a gang, rather than breaking it
down. In Hunter’s experience, someone
could associate with gang members who are relatives or friends. Moreover, when someone says he or she is from
the east side, that person is not necessarily referring to a gang, but rather
to a geographical area.
From
investigating the Eastside Crips and talking to people he suspected were
members, Hunter had learned that often, the proceeds derived from criminal activity
went to personal use, such as paying rent, buying food and gasoline, and buying
clothing. Hunter acknowledged that some
gang members diverted some of the proceeds to the activities of the gang, but,
to his knowledge, no study had ever been conducted to determine the percentage
who did so.
In forming
his opinion as to whether defendant was a gang member, Hunter reviewed
everything Littlefield discussed. In
addition, he took into account that defendant was paid a legitimate salary by
his uncle, who employed him at Wings and More, indicating defendant was
generating income from a source other than illegal activities. Hunter’s investigation further revealed that
“Amp†was a nickname given to defendant when he was a child, and that it was
also the nickname of defendant’s father and a nickname defendant had given to
his son. Thus, it was not a gang moniker
given to defendant by gangsters. Hunter
examined defendant’s body and found no tattoos representing the Eastside
Crips. This was significant to Hunter,
because gang members wear tattoos as badges of honor and use them to send a
message.
Based on
everything he reviewed, Hunter formed the opinion that at the time of the
alleged crimes, defendant was not a member of the Eastside Crips. Hunter conceded, however, that in order to
sell narcotics at the Aneese Market, an individual would have to have a certain
relationship to the area. It was “highly
unlikely†a member of a gang that was a rival of the Eastside Crips would be
selling drugs there. In order for a
nongang member to participate in selling drugs at that location, the person
would have to have a pass from the gang.
Normally, those who receive passes are those who grew up there and are
friends or relatives of the gang’s members.
Hunter was unable to give an opinion, in response to a hypothetical
question based on the evidence presented in this case, whether the person
possessed the marijuana for sale for the purpose of furtherance of a criminal
street gang, as each case had to be assessed individually and the motivation of
the person known. There were times when
gang members sold drugs and used the proceeds exclusively for their own
personal benefit, but there were also times when the proceeds might be used to
purchase items such as weapons, in order to promote and further the criminal
activity of the gang.
Defendant contends the evidence was insufficient to
uphold the jury’s true findings on the section 186.22, subdivision (b)(1)
enhancements, and the conviction for violating section 186.22, subdivision
(a). The test of sufficiency of the
evidence under the due process clause of the Fourteenth Amendment to the United
States Constitution is whether, reviewing the whole record in the light most
favorable to the judgment below, substantial evidence is disclosed such that a
reasonable trier of fact could find the essential elements of the crime beyond
a reasonable doubt. (
1133; People v. Johnson (1980) 26
Cal.3d 557, 578; accord, Jackson v.
Virginia (1979) 443 U.S. 307, 319.)
is “reasonable, credible, and of solid value.â€
(People v. Johnson,
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.†(
425.) An appellate court must not
reweigh the evidence (People v. Culver (1973)
10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve
factual conflicts, as these are functions reserved for the trier of fact (
353, 367). “Where the circumstances
support the trier of fact’s finding of guilt, an appellate court cannot reverse
merely because it believes the evidence is reasonably reconciled with the
defendant’s innocence.
[Citations.]†(
1741, 1747.) This standard of review is
applicable to both convictions and gang enhancements (People v. Leon (2008) 161 Cal.App.4th 149, 161), and regardless of
whether the prosecution relies primarily on direct or on circumstantial
evidence (People v. Lenart (2004) 32
Cal.4th 1107, 1125).
subdivision (b)(1) enhancements on counts 1 and 2.
Section
186.22, subdivision (b)(1) prescribes a sentence enhancement for “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 .…†In order to prove the
elements of this enhancement, the People may present expert testimony on
criminal street gangs, as they did in this case. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; People v. Gardeley (1996) 14 Cal.4th 605, 617-620 (
is insufficient to find an offense gang related. [Citation.]
‘[T]he record must provide some evidentiary support, other than merely
the defendant’s record of prior offenses and past gang activities or personal
affiliations, for a finding that the crime
was committed for the benefit of, at the direction of, or in association with a
criminal street gang.’ [Citation.]†(People
v. Ochoa (2009) 179 Cal.App.4th 650, 657.)
Defendant
contends the only pertinent evidence here was provided by Littlefield, who,
defendant says, relied on two facts in forming his opinions: (1) defendant was a member of the Eastside
Crips criminal street gang, and (2) defendant committed the charged
offenses in Eastside Crip territory.
Defendant says Littlefield’s opinions were not based on any facts
particularized to this incident or this defendant, and were insufficient to sustain
the jury’s true findings. As support,
defendant relies on three cases from this court: People
v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), disapproved on another ground in People v. Vang (2011) 52 Cal.4th 1038, 1047, footnote 3;
1192 (Frank S.); and
843 (Ramon). We find these cases to be distinguishable.
In
apparently traveling together in Eastside Crip territory. In each of the first two vehicles (a
Chevrolet and a Mazda), they saw four young Black males. In the third car (a Chrysler), the officers
saw two young Black males plus one or two passengers in the back seat. Of all the men, the officers recognized only
Leon Anderson, whom they knew to be a member of the Eastside Crips. Because the cars carried young Black males,
appeared to be traveling together, and one passenger was an Eastside Crip, the
officers concluded all those in the vehicles were members of the gang. They further reasoned that because the gang
would be expecting retaliation for an earlier shooting, they would be carrying
weapons for protection. Accordingly,
officers initiated a stop of the Chevrolet, in which Anderson was riding. As they approached, they saw the rear seat
passenger place a handgun under the front seat.
Officers arrested the four occupants of the vehicle and recovered the
handgun. Meanwhile, the other two vehicles
made a U-turn and drove past the location of the stop; other officers were
dispatched and found these vehicles at a nearby taco stand. A search of the area revealed a handgun
hidden in a shoe box next to a Dumpster.
All seven occupants of the vehicles were arrested. Killebrew was not in the Chevrolet or the
Mazda, and his presence in the Chrysler was not established with any degree of
certainty. He was seen observing the
stop of the Chevrolet, however, and was arrested and charged with conspiring to
possess the two handguns. At trial, a
police officer testified as an expert on gangs to establish not only
Killebrew’s membership in a criminal street gang, but also his subjective
knowledge and intent to possess the handguns.
Killebrew ultimately was convicted of conspiracy. (Killebrew,
supra, 103 Cal.App.4th at
pp. 647-649.)
On appeal,
Killebrew argued, inter alia, that the trial court erred by allowing the gang
expert to give an opinion about the intent and knowledge of gang members when
in the presence of guns. (
when one gang member in a car possesses a gun, every other gang member in the
car knows of the gun and constructively possesses it. The expert further opined that the occupants
of the Chrysler, to which no gun was ever linked, would know of the guns in the
other two vehicles and would mutually possess those guns. (Id.
at p. 652 & fn. 7.)
This court
undertook an extensive review of cases addressing the propriety of expert
testimony on gangs. (
“None of [the cases reviewed] permitted testimony that a specific
individual had specific knowledge or possessed a specific intent.†(Id.
at p. 658.) Because the expert in
essence testified to the subjective knowledge and intent of each occupant of
each vehicle, we concluded, his opinion did nothing more than inform the jury
how he believed the case should be decided.
His beliefs were irrelevant and should have been excluded as an improper
opinion on the ultimate issue. Since the
expert’s erroneously admitted testimony was the only evidence supporting the
conspiracy theory, reversal was required.
(Id. at pp. 658-659.)
In
for failing to stop at a red light while riding a bicycle. The minor, who was alone, gave a false name,
and was found to possess a concealed knife, a small bindle of methamphetamine,
and a red bandana. The minor explained
he had been attacked two days earlier and needed the knife for protection
against “‘the Southerners’†because they felt he supported northern street
gangs. The minor also said he had
several friends in the northern gangs.
He was charged with carrying a concealed dirk or dagger with a gang
enhancement. At the contested
gang expert opined, inter alia, that the minor possessed the knife to protect
himself; a gang member (which she found the minor to be) would use the knife for
protection from and to assault rival gang members; and the minor’s possession
of the knife benefited the Nortenos by helping provide them protection should
they be assaulted. The court found the
charge and enhancement allegation true.
(Id. at pp. 1195-1196.)
Relying in
large part on Killebrew, we agreed
with the minor’s claim that substantial evidence did not show he had a specific
intent to promote, further, or assist in any criminal conduct by gang
members. (Frank S., supra, 141
Cal.App.4th at pp. 1196-1198.) We
stated:
“In the
present case, the expert simply informed the judge of her belief of the minor’s
intent with possession of the knife, an issue reserved to the trier of
fact.… [T]he prosecution presented no
evidence other than the expert’s opinion regarding gangs in general and the
expert’s improper opinion on the ultimate issue to establish that possession of
the weapon was ‘committed for the benefit of, at the direction of, or in
association with any criminal street gang .…’ [Citation.]
The prosecution did not present any evidence that the minor was in gang
territory, had gang members with him, or had any reason to expect to use the
knife in a gang-related offense. In
fact, the only other evidence was the minor’s statement to the arresting
officer that he had been jumped two days prior and needed the knife for
protection. To allow the expert to state
the minor’s specific intent for the knife without any other substantial
evidence opens the door for prosecutors to enhance many felonies as
gang-related and extends the purpose of the statute beyond what the Legislature
intended.
“…
[A]ppellant’s criminal history and gang affiliations cannot solely support a
finding that a crime is gang-related under section 186.22. [Citation.]
‘The crime itself must have some connection with the activities of a
gang, which we conclude means a “criminal street gang†.…’ [Citation.]
Based on section 186.22, a crime fails to be ‘gang related’ unless
appellant committed it ‘“‘for the benefit of, at the direction of, or in
association with’ a street gang.â€â€™
[Citation.] While evidence
established the minor has an affiliation with the Nortenos, membership alone
does not prove a specific intent to use the knife to promote, further, or
assist in criminal conduct by gang members.
[Citation.]†(
In
stolen vehicle. He had an unregistered
firearm in his possession. He was
charged with various offenses, and a section 186.22, subdivision (b)(1)
enhancement was alleged. (
testified that the location at which Ramon and his passenger (Martinez) were
stopped was in the heart of the territory of the Colonia Bakers criminal street
gang, and that the territory was controlled through violence and
intimidation. The primary activities of
the gang were identified as sales and possession of narcotics, theft, extortion,
burglaries, robberies, car theft, and victim and witness intimidation. (Id.
at p. 847.) Asked how possession of
a stolen truck related to those crimes, the expert replied that a gang member
driving a stolen truck within the gang’s territory could conduct numerous
crimes, then dispose of the vehicle and have no ties to it or the crime
committed in it. Similarly, a gang
member in a stolen vehicle with an unregistered gun could commit any of the
crimes and not have ties to the gun or the vehicle. The expert further testified that the
unregistered gun and stolen vehicle could be used to spread fear and
intimidation; hence, driving a stolen vehicle and possessing an unregistered
firearm provided a benefit to the Colonia Bakers criminal street gang. Moreover, the stolen vehicle and unregistered
firearm were the tools the gang needed to commit other crimes to further the
gang. (Id. at pp. 847-848.)
On appeal,
this court found that the expert relied, in forming his opinions, on the crimes
Ramon and Martinez were accused of committing, the expert’s belief the pair
were members of the Colonia Bakers criminal street gang, and the fact they were
stopped in territory claimed by the Colonia Bakers. (Ramon,
supra, 175 Cal.App.4th at
p. 849.) We concluded: “This case cannot be distinguished in a
meaningful manner from Killebrew or
The People’s expert simply informed the jury of how he felt the case
should be resolved. This was an improper
opinion and could not provide substantial evidence to support the jury’s
finding. There were no facts from which
the expert could discern whether Ramon and Martinez were acting on their own
behalf the night they were arrested or were acting on behalf of the Colonia
Bakers. While it is possible the two
were acting for the benefit of the gang, a mere possibility is nothing more
than speculation. Speculation is not
substantial evidence. [Citation.]†(Id.
at p. 851.) We further held that
the fact Ramon was with another gang member in gang territory, standing alone,
was not enough to establish Ramon committed the crimes with the specific intent
to promote, further, or assist criminal conduct by gang members. (Ibid.)
In the
present case, the record presents an underlying evidentiary foundation for
Littlefield’s opinions. (See
1253, 1261.) Defendant, a member (or at
least associate) of the Eastside Crips criminal street gang, was observed
committing a crime that was one of the gang’s primary activities. The location was a stronghold of the gang
within the gang’s traditional territorial boundaries. The evidence supports the inference defendant
was dressed so as to consciously and deliberately display the gang’s color
while he committed the crime. In
essence, defendant was intentionally advertising the gang and one of its
primary activities, whether he was selling the marijuana or giving it
away. Even if he was not making money
for the gang, his presence and blatant promotion of the Eastside Crips helped
the gang maintain its status and stronghold at that location. This in turn allowed other Eastside Crips to
conduct criminal activities in the area by preventing other gangs from
encroaching on the location and siphoning off the customer base there. It can reasonably be inferred this was
becoming increasingly important as the demographics of the community changed
and the turf of Hispanic gangs started to overlap portions of the Eastside
Crips’ traditional territory.
Reversal on
the ground of insufficiency of the evidence “is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to
support’†the jury’s finding. (
331.) Here, jurors reasonably could have
concluded, from the evidence as a whole and particularly defendant’s display of
the gang’s color during his commission of the crimes, that he committed those
crimes for the benefit of the Eastside Crips criminal street gang, and that he
did so with the specific intent to promote, further, or assist criminal conduct
by gang members.
B. The evidence was insufficient to
sustain defendant’s conviction for violating section 186.22, subdivision (a) in
count 3.
“Any person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged in a pattern
of criminal gang activity, and who
willfully promotes, furthers, or assists in any felonious criminal conduct by
members of that gang,†has committed the substantive offense set out in
subdivision (a) of section 186.22.
The elements of this offense “are (1) active participation in a
criminal street gang, in the sense of participation that is more than nominal
or passive; (2) knowledge that the gang’s members engage in or have
engaged in a pattern of criminal gang activity; and (3) the willful
promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang. [Citation.]†(People
v. Albillar (2010) 51 Cal.4th 47, 56.)
“All three
elements can be satisfied without proof the felonious criminal conduct
promoted, furthered, or assisted was gang related.†(People
v. Albillar, supra, 51 Cal.4th at p. 56.) In People
v. Castenada (2000) 23 Cal.4th 743, however, the California Supreme Court
stated: “[A] person who violates section
186.22[, subdivision] (a) has also aided and abetted a separate felony offense
committed by gang members .…†(Id.
at p. 749, italics added.)
“[S]ection 186.22[, subdivision] (a) imposes criminal liability … only
when a defendant ‘actively participates’ in a criminal street gang while also
aiding and abetting a felony offense committed by the gang’s
[Citation.]†(
Defendant
reads the foregoing language to say that, as a matter of law, an individual
acting alone cannot be guilty of the substantive offense of active
participation in a criminal street gang.
Because there was no evidence presented at trial that he was working in
cooperation with anyone else in conjunction with his marijuana-related
offenses, he argues, the evidence was insufficient to sustain his conviction on
count 3.
In
the position advocated by defendant — that a gang member who commits a felony,
but acts alone, does not violate section 186.22, subdivision (a). Looking to the plain language and grammatical
structure of the statute, the court reasoned:
“Section 186.22[, subdivision] (a) speaks of ‘criminal conduct by
are the verbs describing the defendant’s acts, which must be performed
willfully. The phrase ‘any felonious
criminal conduct’ is the direct object of these verbs. The prepositional phrase ‘by members of that
gang’ indicates who performs the felonious criminal conduct. Therefore, to satisfy the third element [of
the offense], a defendant must willfully advance, encourage, contribute to, or
help members of his gang commit
felonious criminal conduct. The plain
meaning of section 186.22[, subdivision] (a) requires that felonious criminal
conduct be committed by at least two gang members, one of whom can include the
defendant if he is a gang member.
[Citation.]†(
Baxter, J.).)
Defendant
is correct that there was no actual evidence he was working in cooperation with
anyone. Although there was some
suggestion at trial that defendant and Black were working together in a
team-sales fashion, it was not developed.
Similarly, although Littlefield found the individuals defendant was with
when contacted in the present case “important†in terms of Littlefield’s expert
research and review of defendant, he did not explain why or testify concerning
Black’s gang affiliation, if any.
Accordingly, we can only speculate Black was a member of defendant’s
gang and that the two aided and abetted each other or were coparticipants
acting in concert. Speculation is not
evidence, much less substantial evidence.
(People v. Waidla (2000) 22
Cal.4th 690, 735.)
Defendant’s
conviction on count 3 must be reversed.
Retrial thereon is barred. (
104 & cases cited.)
name="_ftnref7" title="">[7]
II
of Testimonial Hearsay
Defendant
contends the admission of testimonial hearsay statements, in the guise of
expert opinion, violated his Sixth Amendment right to confront and
cross-examine witnesses. He does not
identify any specific out-of-court statements that Littlefield repeated during
his testimony, but rather complains that some of the testimony was based on
multiple levels of hearsay and hearsay based on statements made by unidentified
and unnamed sources. (See
1422, 1426.) Although at trial defendant
objected on reliability and hearsay grounds, he did not raise a confrontation
claim. Assuming his claim of error was
not thereby forfeited (see, e.g., People
v. Redd (2010) 48 Cal.4th 691, 730 & fn. 19; People v. Chaney (2007) 148 Cal.App.4th 772, 779), we reject it.
Except
under limited circumstances, if a hearsay statement is “testimonial,†it cannot
be introduced against a defendant in a criminal trial unless the declarant is
unavailable and the defendant had a prior opportunity to cross-examine him or
her. (Crawford v. Washington (2004) 541 U.S. 36, 53-54 (
effort to spell out a comprehensive definition of ‘testimonial,’†the
it includes “police interrogations.†(
Not every
conversation between a gang member and a gang expert constitutes
“interrogation†or results in testimonial evidence for confrontation clause
purposes within the meaning of Crawford
and its progeny. (See
___ [131 S.Ct. 1143, 1152-1153]; People
v. Blacksher (2011) 52 Cal.4th 769, 811-812.) Moreover, several appellate courts have held
that Crawford does not apply to
hearsay that forms the basis of an expert’s opinion, reasoning variously that
hearsay in support of expert opinion is not the sort of testimonial hearsay the
use of which Crawford condemned (
Cal.App.4th at p. 1427) or that hearsay relied on by experts in formulating
their opinions is not testimonial because it is not offered for the truth of
the facts stated (People v. Cooper (2007)
148 Cal.App.4th 731, 747; People v.
Thomas (2005) 130 Cal.App.4th 1202, 1210).
Recently,
the court in People v. Hill (2011)
191 Cal.App.4th 1104 disagreed, noting that “where basis evidence consists of
an out-of-court statement, the jury will often be required to determine or
assume the truth of the statement in order to utilize it to evaluate the
expert’s opinion.†(Id. at p. 1131, fn. omitted.)
The court found, however, that most of the hearsay relied upon by the
gang expert in its case would not be considered testimonial under
at pp. 1135-1136.) It also found
itself bound to follow Gardeley,
which held that gang experts may properly relate in detail the hearsay on which
they relied (People v. Hill, supra, 191
Cal.App.4th at p. 1131; see also People
v. Valdez (1997) 58 Cal.App.4th 494, 510-511).
Most of the
hearsay relied on by Littlefield was not testimonial. Moreover, we too are bound to follow
applicable Supreme Court precedent. (
57 Cal.2d 450, 455.) Under
III
A. Background
Prior to
trial, defendant filed a motion, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (
contained in the personnel records of Bakersfield Police Officers Bender and
Beagley. Specifically, defendant sought
(1) the names, addresses, and telephone numbers of all persons filing
complaints against said officers, including, but not limited to, complaints for
acts indicating or constituting dishonesty, false arrest, and/or the
fabrication of charges, reports, and/or evidence; (2) the dates such
complaints were filed; and (3) whether any disciplinary action was taken
against the officer as a result, and the nature of such discipline. The City of Bakersfield and the officers
opposed the motion, except with respect to citizen complaints against Bender
for dishonesty as to false reporting only.
As to that category, it was conceded defendant had made a sufficient
showing to justify an in camera review.
The trial
court ruled that, in light of the charges and circumstances in this case, it
would conduct an in camera review of the records of both officers with respect
to dishonesty. At the conclusion of that
hearing, the court expressly found there was nothing to be disclosed. It ordered the transcript of the in camera
proceedings sealed.
Defendant
now asks us to review the trial court’s procedure in conducting the
there were no discoverable materials. In
his reply brief, he further contends the trial court erred by failing to make a
record of the evidence it considered in chambers when it ruled on the
properly exercised its discretion.
B. Analysis
A criminal
defendant has a limited right to discovery of peace officer personnel records
and records of citizen complaints against peace officer personnel that are
maintained pursuant to section 832.5; such records are confidential and can
only be discovered pursuant to Evidence Code sections 1043 and 1045. (§ 832.7; Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312,
318.) A defendant is entitled to
discovery of relevant information from the confidential records upon a showing
of good cause, which exists “when the defendant shows both ‘“materiality†to the
subject matter of the pending litigation and a “reasonable belief†that the
agency has the type of information sought.’
[Citation.]†(
179.)
If a
defendant establishes good cause, the custodian of records should bring to
court all documents that are potentially relevant to the defendant’s
motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The trial court must then review the records
in camera to determine what information, if any, should be disclosed. Subject to the exceptions and limitations
contained in Evidence Code section 1045, subdivisions (b)-(e), the court
must disclose to the defendant such information as is relevant to the subject
matter involved in the litigation.
name="_ftnref8" title="">[8] (People
v. Gaines, supra, 46 Cal.4th at p. 179.) A trial court is afforded wide discretion in
ruling on a motion for access to law enforcement personnel records, and we will
reverse only on a showing of abuse of that discretion. (People
v. Hughes (2002) 27 Cal.4th 287, 330; People
v. Samayoa (1997) 15 Cal.4th 795, 827; Haggerty
v. Superior Court (2004) 117 Cal.App.4th 1079, 1086; see
The record
of the trial court’s in camera examination of the officers’ records is adequate
for our review, and demonstrates that the court followed the proper
procedure. (See People v. Mooc, supra, 26 Cal.4th at pp. 1228-1229.) Moreover, we have independently reviewed
Bender’s and Beagley’s sealed files, which have been made part of the record on
appeal but which have not been disclosed to counsel for either party. Our review reveals no materials so clearly
pertinent to the issues raised by the Pitchess
discovery motion that failure to disclose them was an abuse of
“properly exercised its discretion†by ruling there was nothing to be disclosed
to the defense. (People v. Samayoa, supra, 15 Cal.4th at p. 827; see also
p. 330.)
DISPOSITION
The
conviction on count 3 (Pen. Code, § 186.22, subd. (a)) is reversed and
sentence thereon, which was stayed pursuant to Penal Code section 654, is
vacated. The judgment is modified to
show imposition of a court security fee (Pen. Code, § 1465.8) in the
amount of $60, and a court facilities funding assessment (Gov. Code,
§ 70373) in the amount of $60. As
so modified, the judgment is affirmed.
The trial court is directed to cause to be prepared an amended abstract
of judgment showing said changes, and to forward a certified copy of same to
the appropriate authorities.
_____________________
DETJEN,
J.
WE CONCUR:
_____________________
CORNELL, Acting P.J.
_____________________
POOCHIGIAN, J.
name="_ftn1" title="">[1] Further
statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] Probation
was also revoked, and defendant sentenced to prison, in an unrelated case.
