People v. Dunbar CA2/1 ( 2015 )

Filed 12/21/15 P. v. Dunbar CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B259122
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA130397)
v.
JAQWAN GLEN DUNBAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Kelvin D. Filer, Judge. Affirmed in part and reversed in part with directions.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General,
for Plaintiff and Respondent.
——————————
Jaqwan Glen Dunbar (Dunbar) appeals his conviction by jury for the murder of
Willie Singleton (Singleton) and the attempted murder of Joseph Kelly (Kelly). Dunbar
contends that the trial court made the following prejudicial errors: (1) it admitted into
evidence of Dunbar’s conversation with a jailhouse confidential informant; (2) it
restricted his counsel’s cross-examination of two police officers; (3) it restricted his
counsel’s impeachment of Kelly; and (4) it allowed the imposition of a gang
enhancement despite the lack of sufficient supporting evidence. In principal part, we
disagree with Dunbar, finding that the trial court properly admitted evidence of the
jailhouse conversation with the informant and properly limited the cross-examination of
the police officers and Kelly. However, we agree with Dunbar that the gang
enhancement was not supported by sufficient evidence.
BACKGROUND
I. The Murder of Singleton and the Attempted Murder of Kelly
At approximately 5:40 p.m. on August 4, 2013, Singleton and Kelly were walking
southbound down Wilmington Avenue, between 109th and 110th Streets, in Los Angeles.
Singleton and Kelly were members of a gang called the Ten Line Gangster Crips (Ten
Line Crips or Ten Line). That section of Wilmington Avenue is considered to be part of
Ten Line’s territory.
As the two men were walking on the sidewalk along the east side of Wilmington
Avenue someone called out behind them, “‘Fuck Ten Line.’” This statement was
followed by a volley of four to five pistol shots. According to an eyewitness, a lone
gunman fired at Singleton and Kelly from the west side of Wilmington Avenue near
109th Place. As Singleton and Kelly ran away from the shooter, Singleton was struck by
a single bullet. The bullet entered Singleton’s right arm, fracturing a bone and damaging
a major artery, exited in the area under Singleton’s arm and went into the side of his chest
before exiting out the front of his chest. The damage to the major artery was fatal.
Despite treatment from first responders, Singleton died at the scene.
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II. Dunbar’s Arrest and Statements to a Jailhouse Confidential Informant
On October 10, 2013, Dunbar was arrested and taken into custody. While being
interviewed by detectives, Dunbar was “animated” in denying any involvement in
Singleton’s murder. In fact, he even told the detectives that he was in another city
(Palmdale, California) at the time of the shooting—a statement that was false.
Shortly after midnight on October 11, 2013, following his interview with the
investigating detectives, Dunbar was placed in a small holding cell with a confidential
informant posing as another prisoner also arrested for murder. The informant was
“stocky,” approximately five feet eight inches tall, weighing about 180 pounds, wearing
civilian clothes and displaying a tattoo associated with another Los Angeles gang, the
Rolling 60’s. The holding cell was wired for sound-recording and video observation; in
addition, the informant was wired for sound and video recording.
Dunbar immediately identified himself to the informant as a gang member, a
member of the Bad Ass Gangsta Grips (Bad Ass Crips), who goes by the name of
“Fooley” or “Baby Fooley” or “Dice Fooley.” Dunbar then recounted how he was with
some older “homies” when he wound up shooting a Ten Line Crip with a “burner,” a
.357-caliber revolver. Dunbar told the informant that he aimed and “busted,” or fired,
five times from across the street. Dunbar said he was surprised he had hit even one of the
two men as he was firing from a distance. When the informant inquired about the gun,
Dunbar told him that someone in Louisiana now had the gun. The informant urged
Dunbar to claim that he was in Palmdale with his sister at the time of the murder and that
he was only trying to enroll in trade school. In response, Dunbar said he had told that
false story when interviewed by the detectives and that he would hold to it.
III. Dunbar’s Trial, Conviction and Sentencing
On February 11, 2014, Dunbar pleaded not guilty to one count of murder (Pen.
Code,1 § 187, subd. (a); count 1), one count of attempted murder (§§ 664, 187, subd. (a);
count 2), and denied the special allegations with regard to the use of a firearm
1 All further statutory references are to the Penal Code unless otherwise indicated.
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(§ 12022.53, subds. (b), (c), (d)) and committing a crime for the benefit of criminal street
gang (§ 186.22, subd. (b)(1)(C)).
The jury trial began on July 14, 2014. In support of the People’s case, the
prosecution called several eyewitnesses, the first police officer to arrive at the scene, the
officers who later arrested Dunbar and executed a search warrant for the home of
Dunbar’s mother, a custodian of records for Metro P.C.S. (Dunbar’s cell phone service
provider), a Los Angeles police detective assigned to the FBI’s Cellular Analysis Survey
Team and the detective leading the investigation into Singleton’s murder, who also
testified as an expert on Los Angeles street gangs. The confidential informant did not
testify, but the video and audio recordings of the conversation between Dunbar and the
confidential informant were admitted into evidence and shown to the jury and a transcript
of the audio tape was provided to the jury.
Only one witness testified for the defense: Dunbar. Among other things, Dunbar
testified that he lied to the police about being in Palmdale on the day of the shooting
because he had never been arrested before and his mother had sent him to Palmdale so
that he could stay out of trouble. With regard to his incriminating statements made to the
informant, Dunbar testified that he was merely trying to “play a hard role” so that he
would not get raped or assaulted. As to the specific facts of Singleton’s murder that he
related to the informant, he was simply repeating what he had heard about the crime from
friends and “[d]udes around the neighborhood,” some of whom were also members of the
Bad Ass Crips.
On July 23, 2014, after an eight-day trial and less than a day of deliberation, the
jury found Dunbar guilty on both counts and also found true the criminal street gang and
firearm enhancements.
On September 17, 2014, the trial court sentenced Dunbar to a total term of 50
years to life in state prison. The sentence consisted of 25 years to life on count 1, the
principal term, and consecutively, 25 years to life for the firearm enhancement
(§ 12022.53, subd. (d)). The gang enhancement was stayed with respect to count 1.
Concurrently, the court imposed a total term of 35 years to life as to count 2, consisting
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of 15 years to life on the attempted murder and an additional 20 years for the firearm
enhancement (§ 12022.53, subd. (c)). With regard to the gang enhancement for count 2,
the court ordered that Dunbar “serve a minimum of 15 years in state prison before parole
may be granted.” On that same day, Dunbar filed a timely notice of appeal from the
judgment.
DISCUSSION
I. The Confrontation Clause was not implicated by the holding cell conversation
between Dunbar and the confidential informant
The Confrontation Clause of the Sixth Amendment states that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” (U.S. Const., 6th Amend.) Dunbar claims that the admission into
evidence, over his objection, of audiotape, videotape, and transcript of his conversation
with the confidential informant violated his Sixth Amendment right to confrontation
because the prosecution did not produce the informant as a witness.
The trial court ruled that Dunbar’s statements to the informant were admissions
and, as such, did not implicate the Confrontation Clause. To the extent that the
informant’s statements were at issue, the trial court ruled that they did not violate the
Confrontation Clause, because they were nontestimonial—that is, the informant’s
statements were not made in a formal, solemn, structured manner for prosecutorial use.
As discussed in more detail below, we find that the trial court did not abuse its discretion
in admitting evidence of the holding cell conversation. (People v. Lawley (2002) 27
Cal.4th 102, 153.)
A. Dunbar’s statements to the confidential informant were admissible as
admissions against penal interest
To be admissible, an out-of-court statement must be trustworthy and against the
declarant’s penal interest. (People v. Leach (1975) 15 Cal.3d 419, 441–442.) “Under the
rule of Leach, a hearsay statement ‘which is in part inculpatory and in part exculpatory
(e.g., one which admits some complicity but places the major responsibility on others)
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does not meet the test of trustworthiness and is thus inadmissible.’” (People v. Duarte
(2000) 24 Cal.4th 603, 612.)
Here, Dunbar’s facially incriminating statements implicating himself in the murder
of Singleton and the attempted murder of Kelly were in no way exculpatory. Although
the conversation was a question and answer session, Dunbar’s statements were
“inextricably tied to and part of a specific statement against penal interest.” (People v.
Samuels (2005) 36 Cal.4th 96, 121.) Such specificity, including identifying the victims
as Ten Line Crips, the type of gun used, and the distance from which Singleton was shot,
shows an inherent trustworthiness. The trial court did not err in finding that Dunbar’s
statements to the confidential informant were admissions against penal interest.
B. Statements by the confidential informant were nontestimonial and, as such,
admissible
In Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]
(Crawford), the United States Supreme Court held that the Sixth Amendment prohibits
admission of out-of-court testimonial statements against a criminal defendant unless the
declarant is unavailable as a witness and the defendant had a prior opportunity to cross-
examine him or her, or the declarant appears at trial. (People v. Jennings (2010) 50
Cal.4th 616, 651; Davis v. Washington (2006) 547 U.S. 813, 821 [126 S.Ct. 2266, 165
L.Ed.2d 224] (Davis).) In other words, only testimonial statements cause the declarant to
be a witness within the meaning of the confrontation clause. (Davis, at p. 821.) Thus,
under Crawford, the crucial question is whether an out-of-court statement is testimonial
or not. (People v. D’Arcy (2010) 48 Cal.4th 257, 290.)
Although the court in Crawford, supra, 541 U.S. 36 did not explicitly define a
“testimonial statement,” it set forth three formulations of the “core class of ‘testimonial’
statements”: (1) “‘ex parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially’”; (2) “‘extrajudicial
statements . . . contained in formalized testimonial materials, such as affidavits,
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depositions, prior testimony, or confessions’”; and (3) “statements that were made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’” (Id. at pp. 51–52 & fn. 3.) The
court distinguished these types of testimonial statements from “a casual remark” made by
one acquaintance to another. (Id. at p. 51.) In other words, an “offhand, overheard
remark” is not testimonial. (Ibid.) This point was subsequently affirmed in Davis, supra,547 U.S. 813, where the court observed in dicta that “statements made unwittingly to a
[g]overnment informant” or “statements from one prisoner to another” were “clearly
nontestimonial.” (Id. at p. 825.)
In People v. Cage (2007) 40 Cal.4th 965, our Supreme Court used Crawford,
supra, 541 U.S. 36, and Davis, supra, 547 U.S. 813, to derive certain basic principles to
define statements as “testimonial,” including the following: “First, . . . the confrontation
clause is concerned solely with hearsay statements that are testimonial, in that they are
out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial.
Second, though a statement need not be sworn under oath to be testimonial, it must have
occurred under circumstances that imparted, to some degree, the formality and solemnity
characteristic of testimony. Third, the statement must have been given and taken
primarily for the purpose ascribed to testimony—to establish or prove some past fact for
possible use in a criminal trial. Fourth, the primary purpose for which a statement was
given and taken is to be determined ‘objectively,’ considering all the circumstances that
might reasonably bear on the intent of the participants in the conversation.” (Cage, at
p. 984, fns. omitted.)
Here, the conversation between Dunbar and the confidential informant was not a
solemn, formal out-of-court analog. Rather, the relatively brief conversation lasting less
than an hour was casual, often profane and it was seemingly made for a variety of
purposes wholly unrelated to establishing a fact at trial; in fact, Dunbar implored the
older, more worldly-wise informant to “[t]each [him] some shit”—that is, to provide the
younger, less experienced Dunbar with advice on how to avoid conviction and
incarceration. Moreover, the conversation between Dunbar and the informant was not
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conducted under circumstances that would lead an objective participant to reasonably
expect that his or her statements might be used in future judicial proceedings. There was,
in other words, no structured, self-evident police interrogation.
As a fallback position, Dunbar argues that because the conversation in the holding
cell was secretly recorded, the informant’s statements were testimonial. This argument is
without merit, as illustrated by People v. Arauz (2012) 210 Cal.App.4th 1394, 1401–
1402, which affirmed the admission of secretly recorded statements by a codefendant to a
confidential jailhouse informant. Moreover, a long line of federal cases have held that
secretly recording a conversation with a confidential informant does not render that
conversation testimonial. For example the Seventh Circuit states: “A statement
unwittingly made to a confidential informant and recorded by the government is not
‘testimonial’ for Confrontation Clause purposes.” (United States v. Watson (7th Cir.
2008) 525 F.3d 583, 589; see Brown v. Epps (5th Cir. 2012) 686 F.3d 281, 287–288
[secretly recorded statements to confidential informant prior to arrest are nontestimonial];
United States v. Dale (8th Cir. 2010) 614 F.3d 942, 956 [secretly recorded statements to
another prisoner are nontestimonial]; United States v. Smalls (10th Cir. 2010) 605 F.3d
765, 778 [secretly recorded statements to confidential informant/inmate was
“unquestioningly nontestimonial”].)
II. Dunbar’s right of confrontation was not abridged by limits placed on his
cross-examination of two police officers
Dunbar contends that the trial court’s refusal to allow him to cross-examine two
police officers—Officer James Shannon (Shannon), who arrested Dunbar and executed
the search warrant for the home of Dunbar’s mother; and Detective Jose Carias (Carias),
one of the lead investigators into the murder of Singleton—about prior unrelated events
in their careers constituted “prejudicial constitutional error.” (Capitalization and boldface
omitted.) We disagree.
With regard to Shannon, Dunbar wished to cross-examine him about a civil
lawsuit regarding a vehicle crash that involved Crips gang members. The accident,
however, did not involve members of Dunbar’s gang, the Bad Ass Crips, but another Crip
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set, the Rolling 40’s, which operated in a different part of the city. Moreover, the
accident and resulting lawsuit, which happened approximately 15 years before the
Singleton shooting, did not result in any disciplinary action begin taken against Shannon
or any other officers or detectives involved in the Singleton shooting investigation. The
trial court denied Dunbar’s request to impeach Shannon on this issue, ruling that there
was an absence of relevance: the subject of the proposed impeachment was “too tenuous
and too speculative and it’s old. There is nothing that is directly connected to either of
the parties in this case.”
As for Carias, Dunbar wished to impeach the detective on a fatal shooting in the
Imperial Courts housing projects that he was purported involved in and which allegedly
led to the detective being barred from reentering the projects. According to Dunbar’s
counsel, the proposed impeachment might show that Carias has “some kind of motive or
grudge against gangs.” However, Dunbar was not sure that the “Carias” involved in the
Imperial Courts incident was the same person as the detective investigating the Singleton
murder. Once again, the trial court denied Dunbar’s request on grounds of relevance,
finding (based on the prosecution’s unchallenged representations) that the Imperial
Courts housing project was not near the instant crime scene, the projects’ local gang was
not affiliated with either of the two gangs involved in Singleton’s murder, and that the
instant case did not involve Carias using or firing his weapon. Because the proposed
impeachment evidence did not implicate Carias’s “conduct or investigation of the
[instant] case,” it was irrelevant. The trial court also found that the proposed
impeachment evidence effectively amounted to “character evidence” as it related to
Carias.
The Confrontation Clause of the Sixth Amendment guarantees the right of an
accused in a criminal prosecution “to be confronted with the witnesses against him.”
(U.S. Const., 6th Amend.) Indeed, “‘[t]he main and essential purpose of confrontation is
to secure for the opponent the opportunity of cross-examination.’” (Davis v. Alaska
(1974) 415 U.S. 308, 315–316 [94 S.Ct. 1105, 39 L.Ed.2d 347].) In particular, the U.S.
Supreme Court has “recognized that the exposure of a witness’ motivation in testifying is
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a proper and important function of the constitutionally protected right of cross-
examination.” (Id. at p. 316.) However, it does not follow from this recognition that the
Confrontation Clause prevents a trial court from imposing any limits on defense
counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, as the
U.S. Supreme Court has made clear, “trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.”
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 1431, 89 L.Ed.2d 674].)
In other words, “the Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20 [106
S.Ct. 292, 88 L.Ed.2d 15].)
The opportunity for cross-examination under California law is limited by
relevance, as only relevant evidence is admissible. (Evid. Code, § 350.) To be relevant,
evidence must have some “tendency in reason to prove or disprove any disputed fact that
is of consequence to the determination of the action.” (Evid. Code, § 210.) This
definition includes evidence “relevant to the credibility of a witness.” (Ibid.; see Evid.
Code, § 780 [the fact finder may consider matters relevant to the truthfulness of the
witness’s testimony].) Conversely, a matter is “collateral” or irrelevant if it has no
logical bearing on any material, disputed issue. (People v. Rodriguez (1999) 20 Cal.4th
1, 9.) In other words, a fact may bear on the credibility of a witness and still be collateral
to the case and therefore inadmissible.
In short, our trial courts have wide latitude to exclude evidence offered for
impeachment that is collateral and has no relevance to the pending action. (People v.
Rodriguez, supra, 20 Cal.4th at pp. 9–10.) This exercise of discretion necessarily
encompasses a determination that the probative value of such evidence is “substantially
outweighed” by its prejudicial, “confusing,” or time-consuming nature. (Evid. Code,
§ 352; see People v. Lewis (2001) 26 Cal.4th 334, 374–375 [Evid. Code, § 352 gives trial
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court broad power to prevent “‘“nitpicking”’” over “‘“collateral credibility issues”’”].)
Also, as long as the excluded evidence would not have produced a “‘“significantly
different impression”’” of the witness’s credibility, the confrontation clause and related
constitutional guarantees do not limit the trial court’s discretion in this regard. (People v.
Dement (2011) 53 Cal.4th 1, 52 [“‘ordinary rules of evidence do not impermissibly
infringe on the accused’s right to present a defense’”].) As the court explained in People
v. Harris (2008) 43 Cal.4th 1269, 1292, “‘[w]ithin the confines of the confrontation
clause, the trial court retains wide latitude in restricting cross-examination that is
repetitive, prejudicial, confusing of the issues, or of marginal relevance.’”
Here, although the proposed impeachment in each instance was arguably related to
the credibility of Shannon and Carias as witnesses, the proposed line of questioning was
collateral to the issues in dispute in this case. To borrow from the trial court, the
proposed impeachments were simply “too tenuous and too speculative” to be admissible.
Because the proposed impeachments were collateral, their admission would have been
unduly prejudicial to the prosecution and/or confusing for the jury. Accordingly, the trial
court did not abuse its discretion in excluding the proposed impeachments.
III. Dunbar was not unduly prejudiced by a limitation placed on his cross-
examination of Kelly
Dunbar contends that the trial court committed reversible error when it limited his
impeachment of Kelly, who Dunbar maintains was a “critical” prosecution witness
because he provided a motive for the crime. Specifically, Dunbar sought to impeach
Kelly’s veracity with his prior misdemeanor conviction for the theft or unlawful taking or
driving of motor vehicle (Veh. Code, § 10851). The trial court allowed Kelly to be
impeached with respect to two felony convictions (rape and negligent discharge of a
firearm), but disallowed any cross-examination with respect to the misdemeanor Vehicle
Code conviction. The trial court justified its decision on the grounds that the vehicle
theft-taking conviction was not a crime involving moral turpitude. Dunbar contends that
the trial court’s reasoning was faulty in that California courts have “uniformly” held that
vehicle theft-taking is an offense involving moral turpitude. (See People v. Lang (1989)
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49 Cal.3d 991, 1011.) As a result, Dunbar claims that a “reversal is required” because “it
is reasonably more probable that a more favorable result would have ensued” if he had
been allowed to impeach Kelly on the misdemeanor conviction. We disagree.
First, as a preliminary matter, Kelly was not a witness whose testimony was
“critical” to the prosecution’s case—either generally or with regard to motivation. As to
the shooting itself, Kelly’s testimony was not essential to the prosecution’s case as Kelly
testified that he did not see the shooter. With regard to the gang-related motivation for
the crime, the key testimony on this issue was provided by other witnesses besides Kelly,
including Dunbar himself. For example, Dunbar identified himself to the jailhouse
informant as a member of the Bad Ass Grips and told the informant that he had been
arrested for murdering a Ten Line Crip. In addition, it was Carias, not Kelly, who
testified as to the rivalry between Dunbar’s relatively new gang, the Bad Ass Grips, and
the more established gang to which Singleton belonged, the Ten Line Crips and the
increase in status that would inure to Dunbar’s gang if a long-time member of Ten Line,
such as Singleton, was killed within Ten Line’s own territory.
Second, even if Kelly was essential to establishing a gang-related motivation for
the shooting, he could not have been cross-examined on the fact of his misdemeanor
conviction. A misdemeanor conviction is “inadmissible hearsay when offered as
evidence that a witness committed misconduct bearing on credibility.” (People v.
Wheeler (1992) 4 Cal.4th 284, 297.) Although the facts underlying the misdemeanor
conviction might have been used to impeach Kelly, Dunbar never sought to do so.
Third, the fact that the trial court was confused about whether vehicle theft-taking
is a crime involving moral turpitude is beside the point. What matters is whether the trial
court abused its discretion in excluding all cross examination about the vehicle theft-
taking (both the conviction and the facts underlying that conviction). A trial court has
broad discretion under Evidence Code section 352 to “‘exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.’” (People v. Lewis (2001) 26 Cal.4th 334,
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372, fn. 7.) This discretion gives the trial court broad power to control the presentation of
proposed impeachment evidence “‘“to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues.”’” (Id. at pp. 374–375.) A
trial court’s discretion “‘must not be disturbed on appeal except on a showing that the
court exercised its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124.)
Here, the trial court did not act in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice—it allowed Kelly to be cross-
examined on two felony convictions, while merely excluding a misdemeanor conviction.
As our Supreme Court has stated: “In general, a misdemeanor—or any other conduct not
amounting to a felony—is a less forceful indicator of immoral character or dishonesty
than is a felony. Moreover, impeachment evidence other than felony convictions entails
problems of proof, unfair surprise, and moral turpitude evaluation which felony
convictions do not present. Hence, courts may and should consider with particular care
whether the admission of such evidence might involve undue time, confusion, or
prejudice which outweighs its probative value.” (Wheeler, supra, 4 Cal.4th at pp. 296–
297.) Evidence of Kelly’s misdemeanor conduct—auto theft or joyriding—does not
strongly demonstrate moral turpitude, i.e., a “‘general willingness to do evil’” (People v.
Castro (1985) 38 Cal.3d 301, 315), and, accordingly, would not have provided the jury
must assistance beyond the two felonies in assessing Kelly’s character. Moreover, as we
noted above, Kelly was not essential in establishing a gang-related motive for the
shooting. As a result, the trial court’s decision to exclude Kelly’s misdemeanor
conviction was both reasoned and reasonable.
IV. There was insufficient evidence supporting the imposition of a gang
enhancement
Dunbar makes two arguments with respect to the imposition of a gang
enhancement on his sentence. First, he argues that there was insufficient evidence to
show a pattern of gang activity by the members of the Bad Ass Crips. Second, even if
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there was sufficient evidence of a pattern of gang activity, the prosecution failed to
present “solid evidence that the ‘primary activities’ of the 10 or 15 people who made up
the [Bad Ass Crips] comprised the commission of the enumerated offenses.” We are
unconvinced by Dunbar’s arguments with regard to the pattern of gang activity
requirement. However, we find Dunbar’s arguments regarding the primary activity prong
to be persuasive.
A. Standard of review
“The law regarding appellate review of claims challenging the sufficiency of the
evidence in the context of gang enhancements is the same as that governing review of
sufficiency claims generally.” (People v. Leon (2008) 161 Cal.App.4th 149, 161.) “‘In
assessing the sufficiency of the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’” (People v. Steele (2002) 27 Cal.4th 1230, 1249.)
We presume in support of the judgment the existence of every fact that could reasonably
be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may
reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there
sufficient substantial evidence to support’” the conviction or the enhancement. (People v.
Bolin (1998) 18 Cal.4th 297, 331.)
“‘[S]ubstantial evidence,’” however, is not synonymous with “any” evidence.
Instead, it “‘must be of ponderable legal significance. . . . It must be
reasonable . . . credible, and of solid value; it must actually be “substantial” proof of the
essentials which the law requires in a particular case.’” (People v. Bassett (1968) 69
Cal.2d 122, 138–139.) The substantial evidence rule “does not mean we must blindly
seize any evidence in support of the respondent in order to affirm the judgment. The
Court of Appeal ‘was not created . . . merely to echo the determinations of the trial court.
A decision supported by a mere scintilla of evidence need not be affirmed on review.’”
(Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
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B. Requirements for imposition of a gang enhancement
The Street Terrorism Enforcement and Prevention Act, also known as the STEP
Act, enacted by the Legislature in 1988. (§ 186.20 et seq.) Underlying the STEP Act
was the Legislature’s recognition that “California is in a state of crisis which has been
caused by violent street gangs whose members threaten, terrorize, and commit a
multitude of crimes against the peaceful citizens of their neighborhoods.” (§ 186.21.)
The act’s express purpose was “to seek the eradication of criminal activity by street
gangs.” (Ibid.)
To subject a defendant to the penal consequences of the STEP Act, the prosecution
must prove that the crime for which the defendant was convicted had been “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.” (§ 186.22, subd. (b)(1).) In addition, the prosecution must prove that the
gang (1) is an ongoing association of three or more persons with a common name or
common identifying sign or symbol; (2) has as one of its primary activities the
commission of one or more of the criminal acts enumerated in the statute; and
(3) includes members who either individually or collectively have engaged in a “‘pattern
of criminal gang activity’” by committing, attempting to commit, or soliciting two or
more of the enumerated offenses (the so-called “predicate offenses”) during the
statutorily defined period. (§ 186.22, subds. (e), (f).)
C. There was sufficient evidence to find a pattern of gang activity
A “‘pattern of criminal gang activity’” is defined as gang members’ individual or
collective “commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction of two or more” enumerated
“predicate offenses” during a statutorily defined time period. (§ 186.22, subd. (e); People
v. Gardeley, 14 Cal.4th 605, 617.) The predicate offenses must have been committed on
separate occasions, or by two or more persons. (§ 186.22, subd. (e); People v. Loeun
(1997) 17 Cal.4th 1, 9–10.) The charged crime may serve as a predicate offense.
(Gardeley, at p. 625.)
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Here, the prosecution relied upon the Singleton shooting as one of the predicate
offenses and, for the other, evidence that a minor named Dwayne D., a Bad Ass Crip
known as “Weezy” and “True Soldier,” had a juvenile petition sustained in 2011 for
possessing a firearm. Although the prosecution’s evidence in support of the “pattern”
prong was by no means overwhelming, it met the bare minimum, and, as such, was
sufficient. (People v. Duran (2002) 97 Cal.App.4th 1448, 1458.)
D. There was insufficient evidence to find that the primary activity of
Dunbar’s gang was criminal in nature
“The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes be one of the group’s
‘chief’ or ‘principal’ occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316,
323.) This definition “necessarily exclude[s] the occasional commission of those crimes
by the group’s members.” (Ibid.) “‘Section 186.22 . . . requires that one of the primary
activities of the group or association itself be the commission of [specified]
crime[s]. . . .’” (Sengpadychith, at p. 324.) Consequently, “[s]ufficient proof of the
gang’s primary activities might consist of evidence that the group’s members consistently
and repeatedly have committed criminal activity listed in the gang statute.” (Ibid.)
In order to establish a gang’s primary activities, expert testimony is often used.
Where such testimony has a reliable foundation, it is sufficient to establish a gang’s
primary activities. For example, in People v. Gardeley, supra, 14 Cal.4th 605, the
testimony supporting a gang enhancement was provided by a detective who not only had
extensive experience with gangs, gang members, and gang-related crimes generally, but
also knew the defendants, and had had conversations with them and with other members
of the gang prior to the commission of the crime at issue. (Id. at p. 620.) The court found
that this was a sufficient evidentiary foundation. (Ibid.) Similarly, in People v. Martinez
(2008) 158 Cal.App.4th 1324, a gang expert from Los Angeles County Sheriff’s
Department was able to provide sufficient evidence for a gang enhancement finding,
because he had dealt with the gang for “eight years . . . including investigations and
personal conversations with members,” among other things. (Id. at p. 1330.) In In re
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I. M. (2005) 125 Cal.App.4th 1195, 1207–1208, the prosecution’s gang expert properly
relied on a combination of his personal knowledge of the defendant and on a series of
police reports.
However, where a reliable foundation is lacking, then that expert testimony is
insufficient to establish a gang enhancement. For example, in In re Nathaniel C. (1991)
228 Cal.App.3d 990, the court found that the expert evidence offered by a police officer
to establish a gang enhancement was insufficient, because the expert was merely
repeating what other officers had told him: “Such vague, secondhand testimony cannot
constitute substantial evidence that the required predicate offense by a gang member
occurred.” (Id. at p. 1003.) Similarly in In re Leland D. (1990) 223 Cal.App.3d 251, the
court held that the expert testimony was insufficient to prove a gang enhancement
because the expert did not provide any details of the crimes he attributed to the gang and
based his opinion solely on “hearsay statements from unidentified gang members and
information pertaining to arrests of purported gang members . . . .” (Id. at p. 259.) The
expert’s testimony was the only evidence offered to prove the gang enhancement, and the
evidence did not specify “[e]xactly who, when, where and under what circumstances” the
gang’s crimes were committed. (Id. at pp. 259–260.) Because this testimony provided
no more than conclusory and general pronouncements about the gang’s primary purpose
of committing gang crimes, the appellate court found the expert’s testimony insufficient
as a matter of law to prove the gang enhancement. (Ibid.)
When the foundation for the gang expert’s opinion is unclear, then imposition of a
gang enhancement is inappropriate. (In re Alexander L. (2007) 149 Cal.App.4th 605,
612.) In Alexander L., the gang expert was asked about the gang’s primary activities and
he simply responded that he knew the gang had been involved in murders, auto thefts,
auto/vehicle burglaries, felony graffiti, and narcotic violations. (Id. at p. 611.) However,
at no time did the expert explain what information he relied on in forming his opinion.
(Id. at p. 612.) Because the testimony lacked proper foundation, the court in Alexander L.
held that the expert’s conclusory testimony could not constitute substantial evidence as to
the gang’s primary activities. (Ibid.)
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Here, the prosecution’s evidence regarding the “primary activity” of Dunbar’s
gang, the Bad Ass Crips, was provided by Carias, the lead detective investigating the
shooting, who also testified as an expert on Los Angeles street gangs. Carias’s
experience with street gangs was extensive. He had been a prison guard who had
interacted with gang members for four years. Later, on the police force, he served as an
enforcement officer in gang-occupied housing projects, as a gang officer assigned to
monitor the Project Watts Crips and, significantly, Ten Line Crips exclusively, as a
member of a federal gang task force, and as a gang homicide investigator. By the time of
trial, Carias had attended two law enforcement “gang schools,” written and served
numerous gang warrants, made contact with hundreds of gang members, and testified as a
gang expert about two dozen times.
According to Carias, the primary activities of the Bad Ass Crips were “burglaries,
possession of loaded weapons, shootings and murder.” The basis for Carias’s opinion
was his long experience with gangs generally. Because the Bad Ass Crips were a new
and relatively small gang, Carias had only known about them since 2012. Although
Carias did not have a long history of investigating the Bad Ass Crips directly, he had a
long history of dealing with their principal rival, the Ten Line Crips. In fact, Carias
testified that he had talked to Singleton, a longtime member of the Ten Line Crips, on
“numerous occasions.” Through the two gangs’ rivalry, Carias was familiar with the
territory claimed by the Bad Ass Crips, their member count, and their identifying signs
and graffiti.
Carias, however, did not explain how he knew that the primary activities of the
Bad Ass Crips were burglaries, possession of loaded weapons, shootings and murder.
Other than the lone juvenile petition for possessing a firearm and the instant crime, no
other evidence was offered establishing that possession of loaded guns was a primary
activity of the 10 to15 members of the Bad Ass Crips. Similarly, other than the Singleton
murder, there was no evidence offered that killings or even shootings was an activity that
the Bad Ass Crips engaged in on consistent and repeated basis. And no evidence
whatsoever was offered establishing that burglary was a primary activity of Dunbar’s
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gang. Furthermore, no testimony was offered establishing that Carias had spoken with
any member of the Bad Ass Crips on any occasion prior to the Singleton shooting. Not
surprisingly, Carias did not provide any testimony about the organization and leadership
structure of the Bad Ass Crips.
In sum, Carias’s testimony about the primary activities of the Bad Ass Crips was
not of ponderable legal significance. He provided no foundational specificity as to by
whom, when, where and under what circumstances the gang’s purported crimes were
committed. In a word, Carias’s testimony on this issue was conclusory. Because there
was an inadequate foundation for Carias’s opinion about the primary activities of the Bad
Ass Crips, the gang enhancement findings are reversed.
DISPOSITION
The street gang enhancements are reversed. Because the abstract of judgment fails
to indicate that the sentence for attempted murder was to run concurrently with the
sentence for murder, we direct the trial court to correct the abstract to reflect the trial
court’s pronouncement and forward the amended abstract of judgment to the California
Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
LUI, J.
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