People v. Essien CA1/5 ( 2013 )

Filed 10/31/13 P. v. Essien CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A134046
v.
EKANEM KUFREOBON ESSIEN et al., (Alameda County
Super. Ct. No. H-50571)
Defendants and Appellants.
A young woman was raped, robbed, and assaulted following a gathering at the
home of an acquaintance. The three men involved, defendants Ekanem Kufreobon
Essien, Jacob Christian Mullan, and Braian Calvo were members of “Fremont Mexican
Territory” (FMT), a gang aligned with the Norteños. Following a joint trial before a jury,
defendants were convicted of various felony offenses and gang enhancement allegations
were found true under Penal Code section 186.22, subdivision (b)(1).1
In this appeal, all three defendants argue a joint trial was inappropriate because
there was no single offense as to which all of them were charged. They also challenge
the sufficiency of the evidence to support the true findings on the gang enhancement
allegations and aspects of the testimony by the prosecution’s gang expert. Essien
contends his convictions must be reversed because the court refused to grant a timely
1
Further statutory references are to the Penal Code unless otherwise indicated.
1
motion to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta),
and additionally argues the sentence on one count should have been stayed under section
654. Mullan claims the court should have granted his motion for substitute counsel under
People v. Marsden (1970) 2 Cal. 3d 118 (Marsden) made at the time of his sentencing
hearing. We affirm.
PROCEDURAL HISTORY
The district attorney filed an information charging Essien and Mullan with rape in
concert under section 264.1, subdivision (a) (count 1), with an allegation the crime was
committed for the benefit of a criminal street gang under section 186.22, subdivision
(b)(1). Essien and Calvo were charged with second degree robbery under section 211
(count 2), also with a gang enhancement allegation under section 186.22, subdivision
(b)(1), and it was further alleged Calvo had personally inflicted great bodily injury in the
course of that offense under former section 12022.7, subdivision (a). Calvo alone was
charged with assault by means of force likely to produce great bodily injury under section
245, subdivision (a)(1) (count 3), with a gang enhancement allegation and great bodily
injury enhancement allegation. Recidivist allegations as to Essien and Mullan were
included.
After the trial court denied defendants’ motions for separate trials, they were
jointly tried before a jury. All three defendants were convicted as charged and the
enhancements alleged as to each of them were found true. Essien was sentenced to an
aggregate term of 34 years four months in prison, Mullan was sentenced to an aggregate
term of 16 years in prison, and Calvo was sentenced to an aggregate term of 15 years in
prison. All three appeal the judgment.
FACTS
Jane Doe lives in the Irvington section of Fremont. On January 28-29, 2011, she
spent the evening with a neighbor and his friends and had a few drinks. While walking
home from her neighbor’s house around 1:30 a.m., Doe received a call from her friend
Kevin Montoya, who invited her to a party at the home of Eric Kuehn. Doe had been to
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Kuehn’s house before and agreed. Montoya and another man picked her up and gave her
a ride.
Essien, Mullan, and Calvo were among the people at the party. Everyone was
drinking from a bottle of liquor and Doe took a couple of sips. Calvo, who was 18 years
old, began flirting aggressively with Doe. She rebuffed him because she thought he was
too young and she was not attracted to him, saying something to the effect of, “You’re
still riding training wheels so leave me alone.” At one point Calvo approached her and
licked the side of her face, but she pushed him away and wiped her face with her shirt
sleeve. This made Calvo visibly angry and he kept his distance from her for the rest of
the party.
The party started breaking up in the early morning hours, when it was still dark.
Doe was going to walk home, but Kuehn convinced her to stay, telling her it would be
safer for her to leave when the sun came up. Kuehn invited Doe to go into his bedroom
and watch television, and she agreed. Doe had been in Kuehn’s bedroom before without
incident.
Essien, Mullan, and Calvo joined Kuehn and Doe in the bedroom, which had both
a bed and a futon, and Doe sat on the bed next to Kuehn. Suddenly, Essien walked over
and pushed Doe onto the bed. At first she thought he was playing, but Essien continued
to hold her down as she told him to stop.
Mullan pulled Doe’s jeans and underwear down around her ankles. Essien began
having sex with Doe while she resisted. Kuehn lay on the bed next to her, but did
nothing; Mullan was behind Essien and held Doe’s legs. After Essien raped Doe for a
few minutes, Mullan stepped up to the foot of the bed and began having sex with Doe as
she screamed and thrashed on the bed. Calvo, who was sitting on the futon, said, “That’s
what you get, bitch.” Kuehn told Mullan to stop because his parents would wake up, and
Mullan stopped about a minute later. Doe got up, pulled up her pants, grabbed her purse
and left the room. Kuehn opened the front door of the house for her and she walked
outside.
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Doe took her cell phone out of her purse to call her parents and was about to dial
the number when the three defendants came up behind her. Essien punched her right eye,
took her purse (which contained her cash and driver’s license) and ran up the street.
Calvo punched Doe in the left eye, took her phone and ran away. Doe looked at Mullan
and said, “What the hell,” and he ran off. Doe chased Calvo because she wanted her
phone, and he punched her again in the left eye. She continued to chase him but gave up
after he punched her in the left leg, causing her to fall.
A married couple on their way to shop at early morning garage sales drove by Doe
as she was walking along, crying and bleeding. They stopped and offered her a ride, and
she told them where she lived. On the way there, the husband asked whether Doe had
been raped and she said she had been. The husband, who was driving, stopped the car in
a parking lot and the wife called 911.
The officers who responded to the call followed Doe to the hospital where she was
treated for facial injuries that included lacerations above and below her left eye and
fractures of her maxillary sinus and left orbital bone. Doe admitted she had been sexually
assaulted but lied about her attackers’ identity because she was afraid. A sexual assault
response team nurse examined Doe and collected samples. Doe was upset and sobbing
and her clothes were ripped and blood stained. In addition to the injuries to her eye area,
she had bruises on both upper thighs, tenderness and abrasions to the left knee, abrasions
on her left ankle, tenderness in her right elbow, and swelling and tenderness on her left
cheek. There were no signs of genital trauma, and tests for semen and saliva were
negative. Scrapings taken from under Doe’s fingernails did not match the DNA profiles
of any of the defendants.
Doe did not initially cooperate with the police and did not tell them she had been
at Kuehn’s house. She was afraid of being labeled a “snitch” and was fearful someone
would come after her. Fremont Police Detective Cortes reviewed Doe’s file and
contacted her a few days after the attack. She told him she had changed her mind and
would cooperate, indicating she was afraid of retaliation because her assailants were in a
gang. She identified a photograph of Kuehn and described one of her assailants as having
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a gap between his front teeth. When she was shown a photographic lineup that included a
picture of Essien (who had a gap between his front teeth), she said she was 90 percent
certain he was one of the men, but she would need to see his teeth to be completely sure.
She identified Essien in court when she saw him at the preliminary hearing.
Doe was shown another photographic lineup and wrote “maybe” next to Mullan’s
picture along with the word “Silent,” which Cortez believed to be a nickname or moniker.
She later told Cortes she had not been forthright in her tentative identification of Mullan
because she knew he was involved in a gang and she feared retribution, especially
because her driver’s license with her current address had been stolen. Doe explained she
had gone to Mullan’s Facebook page and found disturbing photographs of people “you
don’t mess with.” Cortes compiled another lineup with Mullan’s picture, which Doe
identified.
Doe also identified Calvo from a separate photographic lineup. Calvo was
interviewed by Cortes and initially denied knowing Kuehn, though he later admitted he
did know him. He claimed to have been with someone named “Jose” during the time
Doe was attacked.
Doe identified all three defendants at trial.
The prosecution called Fremont Police Detective Eric Tang as a gang expert.
Tang testified FMT is a criminal street gang operating in the Irvington district of
Fremont, and is aligned with the Norteño street gangs. The Norteños, in turn, fell under
the umbrella organization of Nuestra Familia, a prison gang. Nuestra Familia and its
associated gangs, including FMT, are associated with the color red, the letter “N,” and the
number 14, “N” being the 14th letter in the alphabet.
Tang explained FMT is an ongoing organization with about 600 primary members
and 100 associates, whose primarily activities include crimes such as robbery, murder
and assault with a deadly weapon, and whose members have been convicted of felonies
including assault by means of force likely to produce great bodily injury. FMT claims
Fremont as its territory, and, with its increase in membership, has split into various
subsets claiming certain districts within Fremont. One such subset is Irvington or “IRV.”
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In Tang’s opinion, all three defendants were FMT gang members on the date of
the crimes against Doe. Essien had a number of tattoos that together signified his gang
membership in the Norteños and IRV; he had admitted being a Norteño; he had attended
the 2009 memorial service of a murdered FMT member; and he had participated in a
gangster rap video on YouTube promoting the Norteños. Mullan had tattoos signifying
the Norteños and IRV; he had admitted being a Norteño during field contacts with police
officers and when being classified in jail; he had been arrested in 2009 for possessing
cocaine in the company of two FMT members (one of whom was Kuehn); and he was
known by the moniker or nickname “Silent.” Calvo had tattoos referring to the number
14; he was contacted while riding in a car with Essien while wearing gang colors; and he
had admitted being a gang member when he was arrested in 2010 while trying to steal
materials from a construction site, an incident in which he had thrown gang signs while
challenging construction workers to a fight and had urinated in his jail cell after his arrest.
In Tang’s opinion, Kuehn was also a member of FMT, based on his tattoos, his prior
contacts with the police, and gang memorabilia found in his bedroom, as was Doe’s
friend Montoya. Tang had reviewed Doe’s statement to Cortes, in which she said she
knew Irvington was Norteño territory and considered Kuehn’s house to be a place where
gang members congregated.
Tang explained that gangs thrive on power, which they gain by threatening and
intimidating the community. People in the community do not want to cooperate with law
enforcement due to fear. An individual gang member’s status is raised by committing
crimes, which shows the gang they can be trusted and intimidates the community.
In Tang’s opinion, the sexual assault of Doe was committed for the benefit of a
gang. Rape, though sexual in nature, is more about power than arousal, and the gang
benefits by having four members who can verify the crime and “throw out into the
community saying, look, we are still violent, we are still doing what we do so therefore
the community should continually be afraid of us.” The same was true of the robbery and
assault, which appear to have been committed to silence Doe. Crimes committed by gang
members are like “a notch in your belt,” with the more violent crimes garnering more
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status. Gangs benefit when their members commit crimes together, because it increases
the chance of the crime being successful, it proves the loyalty of the gang members who
participate, and it makes it more difficult for a gang member to exaggerate his role in an
offense.
Regarding the sexual assault against Doe, Tang believed it was committed “in
association” with gang members because Essien and Mullan worked together to commit
the crime. In Tang’s opinion, the robbery and assault committed by Calvo shortly after
the rape was designed to show his dedication to the gang, particularly because he had not
participated in the initial sexual assault. Tang also believed all the crimes were “done
with the specific intent to promote, further or assist in gang conduct.” All of the events
happened in the Irvington district, which the victim knew to be Norteño territory, at a
party where Norteño gang members were present, and the crimes involved Norteño gang
members working together. “It promotes the gang, it promotes everything we talked
about in terms of the power and fear it’s going to have over the community.”
Tang acknowledged during cross-examination that a rape involving a single
suspect and a single victim would be “frowned upon” by Norteños, but, he explained, a
rape involving several men “was actually somewhat accepted because it’s almost seen as
like a party or some sort of . . . exercise of power over somebody as opposed to . . .
sexual gratification. And so I’m not going to say it’s widely accepted, it’s one of these
codes that we see on the streets, it seems to be always talked about as none of these sex
crimes are acceptable but, if they are, this is one that is accepted more than others.”
Calvo called Professor James Hernandez as a defense expert in Northern
California street gangs. Hernandez had reviewed materials pertaining to the case and
concluded the sexual assault was not gang related, because rape was not a gang activity
and was not well regarded among gang members. Hernandez noted none of the
defendants were alleged to have exhibited gang colors, signs or names during the
incident. He believed FMT was a loose association of individuals rather than a true gang,
and that the Norteños were an “identity” rather than a real gang.
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DISCUSSION
I. Denial of Motion for Self-Representation (Essien)
Essien argues the judgment against him must be reversed because the court denied
his motion to represent himself under Faretta, violating his rights under the Sixth
Amendment of the federal Constitution. We disagree.
After defendants were bound over at the preliminary hearing and the information
had been filed, Essien filed a motion seeking new appointed counsel under Marsden. The
court held an in camera hearing at which Essien described counsel’s perceived
shortcomings at some length and counsel responded. The trial court denied the Marsden
motion, in response to which Essien stated, “Your Honor, I’d like to defend myself pro
per.” The following discussion ensued:
“THE COURT: No. You’ll get an opportunity to do that. But you see, the thing
is that the courts have found that a lot of times defendants essentially—when they don’t
get their way at the Marsden motion, they make that claim. So we don’t just say, oh
yeah, you can represent yourself.
“[ESSIEN]: I thought that was my constitutional right to represent myself.
“THE COURT: You do have a right to represent yourself, but you have to state it
clearly, unequivocally, and you have to do it essentially without regard to who you might
have for an attorney. You want to represent yourself because you want to represent
yourself. But you are at the point where you know how to pick a jury, you know how to
exercise challenges, you know how to do direct examination, you know how to do cross-
examination, you know the laws of evidence and you will be able to effectively represent
yourself. [¶] Now, if you have that opinion, then absolutely you will be able to represent
yourself. But you don’t do it on the spur of the moment; you don’t do it because you’re
unhappy that you didn’t get your way in this motion.
“[ESSIEN]: Then how do I do it?
“THE COURT: Well, when you get back there to Department 513 what you do
is—with it just being denied, I doubt if they’ll do your Faretta motion today. But they
may put it on another date so that you can come in, fill out the form that you understand
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that it’s almost always a bad idea to represent yourself, that—essentially what you do is
you give up any rights concerning incompetency of counsel when you represent yourself.
So if you make a shambles of it, you make a shambles of it, and you’ve got nobody to
blame but yourself. [¶] Like I say, what happened was that Marsden motions have been
going on for a long time. A lot of guys sit there but they don’t get their way, and they say
‘I want to represent myself.’ [¶] And the courts are kind of taking the position that that’s
not really an unequivocal statement of the desire to represent yourself. That’s what’s
going to be required. Like I say, they need to get that clear on the record that you’re
doing this because this is what you want to do, not because you’re unhappy about
something else. [¶] And that needs to be done in open court. Remember these are closed
proceedings to protect the attorney-client privilege and such. So you’ll have to do that in
open court. But I’ve got a note on the file here that you may want a Faretta. Okay?
“[ESSIEN]: Um-hum.” Essien made no further requests to represent himself.
“A defendant in a criminal case possesses two constitutional rights with respect to
representation that are mutually exclusive. A defendant has the right to be represented by
counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, the
United States Supreme Court has held that because the Sixth Amendment grants to the
accused personally the right to present a defense, a defendant possesses the right to
represent himself or herself.” (People v. Marshall (1997) 15 Cal. 4th 1, 20 (Marshall),
citing Faretta, supra, 422 U.S. at p. 819.) When a defendant knowingly and intelligently
makes an unequivocal request to represent himself after being apprised of the dangers of
doing so, the trial court must grant the request. (Faretta, at p. 835; People v. Valdez
(2004) 32 Cal. 4th 73, 97-98 (Valdez).)
The right to represent oneself is triggered only by an unequivocal request.
(Valdez, supra, 32 Cal.4th at pp. 98-99.) “[I]n order to protect the fundamental
constitutional right to counsel, one of the trial court’s tasks when confronted with a
motion for self-representation is to determine whether the defendant truly desires to
represent himself or herself. [Citations.] The court faced with a motion for self-
representation should evaluate not only whether the defendant has stated the motion
9
clearly, but also the defendant’s conduct and other words. Because the court should draw
every reasonable inference against waiver of the right to counsel, the defendant’s conduct
or words reflecting ambivalence about self-representation may support the court’s
decision to deny the defendant’s motion. A motion for self-representation made in
passing anger or frustration, an ambivalent motion, or one made for the purpose of delay
or to frustrate the orderly administration of justice may be denied.” (Marshall, supra, 15
Cal.4th at p. 23.) We review the entire record de novo to determined whether a
defendant’s demand for self-representation was unequivocal. (People v. Danks (2004) 32
Cal. 4th 269, 295.)
Though Essien advised the court he wanted to defend himself and asserted he had
a constitutional right to do so, he did so in direct response to the court’s denial of his
Marsden motion, in apparent frustration at the court’s order. Essien did not again raise
the issue of self-representation, despite having been told by the court he could renew his
Faretta request when the case was sent back to Department 513, where Essien was to be
arraigned with his codefendants. When a request for self-representation is made as an
impulsive response to the denial of a motion for substitute counsel, and is not renewed at
a later date, it is not unequivocal. (Valdez, supra, 32 Cal.4th at pp. 97-99; People v.
Barnett (1998) 17 Cal. 4th 1044, 1087; People v. Scott (2001) 91 Cal. App. 4th 1197, 1205;
Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888.)
Essien suggests the court misled him into believing he would only be allowed to
represent himself if he mastered certain legal skills, whereas a defendant’s technical legal
knowledge is not a prerequisite to self-representation. (Godinez v. Moran (1993) 509
U.S. 389, 399.) Although the court listed various legal procedures that would occur
during a trial (jury selection, direct examination, cross-examination, the application of the
rules of evidence) it also advised Essien he would be permitted to represent himself upon
signing a form acknowledging that self-representation was usually a bad idea and giving
up the right to claim ineffective assistance of counsel if he proceeded in pro per.
Considering all of the circumstances, Essien’s request was equivocal and does not require
reversal of the judgment.
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II. Motion for Separate Trials (All Defendants)
Defendants filed pretrial motions seeking separate trials, arguing they were not
properly joined because there was no count common to all of them as required by section
1098. The trial court denied the motion, concluding (1) the gang enhancements
amounted to common charges sufficient for joinder; and (2) the crimes were all part of a
single transaction, making a joint trial appropriate. We reject defendants’ argument that
the court erred in denying severance and additionally conclude they have failed to
demonstrate prejudice.
Section 1098 provides in relevant part, “When two or more defendants are jointly
charged with any public offense, whether felony or misdemeanor, they must be tried
jointly, unless the court orders separate trials.” In People v. Ortiz (1978) 22 Cal. 3d 38,
43 (Ortiz), the California Supreme Court interpreted this language to mean “a defendant
may not be tried with others who are charged with different crimes than those of which
he is accused unless he is included in at least one count of the accusatory pleading with
all other defendants with whom he is tried.” (Fn. omitted.) The defendant in Ortiz was
jointly charged with three codefendants accused of a robbery distinct from the one in
which he had participated. (Id. at pp. 45.) In concluding the joint trial was unauthorized,
the court focused on the dangers of allowing a jury to hear evidence concerning a crime
with which the defendant had no connection. (Id. at p. 47.)
In People v. Hernandez (1983) 143 Cal. App. 3d 936, 941 (Hernandez), the court
recognized an exception to the rule of Ortiz when the defendants are “charged with a
crime or series of crimes committed as part of a single transaction,” even if the
defendants are not jointly charged with the same offenses. The three defendants in
Hernandez were charged with different counts arising out of the gang rape of a single
victim, leading one defendant to seek a separate trial under the authority of Ortiz. The
court concluded a joint trial was appropriate, because section 1098 does not bar a single
trial for defendants who “jointly committed a series of crimes against the same victim at
the same time and in the same place.” (Hernandez, at p. 939.)
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“We are convinced that the Supreme Court [in Ortiz] did not intend, in
establishing a rule requiring separate trials of defendants not jointly charged, to include
within the purview of that rule defendants charged with crimes arising out of a single set
of circumstances. The evil sought to be avoided by Ortiz was the prejudicial impact of
irrelevant evidence. In a joint trial of unrelated offenses, the jury would hear evidence
concerning the conduct of [the] defendant’s associates, which evidence would not have
been admissible in a separate trial. [Citation.] Here, of course, evidence concerning the
conduct of all of the victim’s assailants would have been admissible in either a joint or
separate trial. Furthermore, a requirement of separate trials could subject the victim and
all witnesses to the ordeal of two complete trials, with no attendant benefit to [one of the
codefendants]. We therefore conclude that the Ortiz holding does not extend to
defendants charged with a crime or series of crimes committed as part of a single
transaction.” (Hernandez, supra, 143 Cal.App.3d at pp. 940-941, fn. omitted.) The
“single transaction” exception to the Ortiz rule was also applied in People v. Wickliffe
(1986) 183 Cal. App. 3d 37, 40-41 (Wickliffe), in which the court approved the joint trial
of a defendant charged with driving under the influence and a codefendant charged with
battery and assault where all of the crimes occurred during a joint operation of
repossessing a vehicle.
In this case, Essien and Mullan were jointly charged with the rape in concert of
Doe, and Essien and Calvo were jointly charged with the robbery of Doe. Essien cannot
claim any violation of Ortiz, because he was “included in at least one count of the
accusatory pleading with all other defendants with whom he [was] tried.” (Ortiz, supra,
22 Cal.3d at p. 43.) As to Mullan and Calvo, they were not jointly charged with any
offense, but their joint trial was appropriate because their crimes were part of a single
course of violent conduct against the same victim and amounted to a “single transaction.”
Defendants argue the published cases recognizing the “single transaction”
exception to the Ortiz rule (Hernandez and Wickliffe) are distinguishable because they
involved offenses by different defendants committed at precisely the same time and
place, unlike the rape, robbery, and assault of Doe. We disagree. Though the robbery
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and assault were committed outside the home where Doe was raped, the crimes were
separated by only a short distance and a brief lapse of time. The robbery and assault were
a continuation of the attack on Doe, and appeared calculated to intimidate her and prevent
her from calling for help or reporting the rape. By any reasonable measure, the crimes
were all part of a single transaction and a joint trial was appropriate. The court did not
abuse its discretion in denying the motions for separate trial. (Wickliffe, supra, 183
Cal.App.3d at p. 42.)
Moreover, a joint trial held in violation of Ortiz requires reversal only if the
defendant was prejudiced, i.e., if he demonstrates “ ‘a reasonable probability [he] would
have obtained a more favorable result at a separate trial.’ ” (Ortiz, supra, 22 Cal.3d at p.
46; Hernandez, supra, 143 Cal.App.3d at p. 941.) When the jury would have heard the
same evidence during a separate trial, prejudice from the presentation of such evidence
cannot be inferred. (See Hernandez, at p. 941.) Here, the rape, robbery, and assault were
all part of a single transaction resulting in a number of physical injuries to Doe, and it is
inconceivable the evidence in any separate trial could have been presented in such a way
that the jury would not have learned of the other offenses. This is particularly true in
light of the gang allegation common to all counts, which required proof of defendants’
relationship to the gang and association with each other.2
Essien argues, in a separate trial, the jury deciding the charges against him would
not have learned of Calvo’s brutal assault against Doe following the robbery because
Essien himself was not charged with that assault. But an assault by a fellow gang
member immediately following a robbery in which Essien participated would almost
certainly have been admissible on the gang enhancement allegations against Essien.
Mullan suggests the joint trial was prejudicial to him because his “criminal
liability ended at the bedroom door” and a jury hearing his case separately would not
2
The gang enhancements inform our analysis of the cross-admissibility of the
evidence. In light of our conclusion the crimes fall within the “single transaction”
exception to the Ortiz rule, we need not decide whether the trial court was correct in that
the gang allegations in and of themselves made joint trials appropriate under section
1098.
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have learned of Essien and Calvo’s subsequent robbery and assault of Doe. This
overlooks that the rape charge against Mullan included a gang enhancement allegation,
and evidence of his fellow gang members’ robbery and assault within minutes of the rape
would have been admissible to prove that allegation, even if evidence of the robbery and
assault would otherwise have been limited. In any event, evidence of the robbery and
assault can hardly be said to be more inflammatory than the rape when it was clear
Mullan did not participate in those subsequent offenses, and it is not reasonably probable
Mullan would have obtained a more favorable verdict if evidence of the subsequent
crimes committed by Essien and Calvo had been excluded or limited. (See People v.
Bradford (1997) 15 Cal. 4th 1229, 1315-1316 (Bradford) [though cross-admissibility of
evidence generally dispels the inference of prejudice necessitating a severance, its
absence does not, by itself, establish prejudice].)
Mullan also complains the joint trial allowed the jury to hear testimony about
Calvo’s prior criminal conduct and Essien’s participation in a “gangster rap” video
glorifying the Norteños. Mullan argues this evidence was admitted for the sole purpose
of proving Essien’s and Calvo’s membership in the FMT gang, and would not have been
admissible against him in a separate trial. The evidence, however, was relevant to prove
the gang enhancement, and was not particularly damaging to Mullan, as there was no
suggestion he was involved in either of these prior incidents. (Bradford, supra, 15
Cal.4th at pp. 1315-1316.)
Calvo argues he was prejudiced by the joint trial, because evidence of the rape by
Essien and Mullan would have been inadmissible if he had been separately tried.
Particularly in light of the gang allegation, this assertion is untenable. Additionally,
Calvo’s advances toward Doe and his presence in the bedroom where she was raped
supplied a motive for the robbery and assault and was admissible to show Doe had
correctly identified him as the man who robbed and assaulted her.
In a supplemental letter brief, Calvo argues the joint trial and evidence of the rape
by Essien and Mullan violated his due process right to a fair trial under the Fourteenth
Amendment to the United States Constitution pursuant to United States v. Lane (1986)
14
474 U.S. 438. We are not persuaded. Calvo was charged with robbing and assaulting a
woman who had just been raped by his fellow gang members while he stood present, and
his crimes were alleged to be gang related. Assuming some of the details concerning the
rape might have been excluded if Calvo had been separately tried, the fact of the rape
itself could not have been completely excised from a separate trial. Essien and Mullan’s
conduct was highly relevant to prove the gang allegations on the counts with which Calvo
was charged, as well as Calvo’s motive in committing the robbery and assault, and the
prejudice from that evidence cannot be said to be undue when it was clear Calvo, though
present in the room, did not participate in the rape itself.
III. Gang Evidence and Enhancements (All Defendants)
The jury returned true findings on the gang enhancement allegations under section
186.22, subdivision (b)(1). Defendants argue: (1) the evidence was insufficient to
support the enhancements; (2) the prosecution’s gang expert was allowed to offer
improper opinions regarding the defendants’ subjective intent and the ultimate issue of
whether the offenses were committed for the benefit of or in association with a street
gang; and (3) evidence of prior gang-related police contacts was unduly prejudicial. We
reject the claims.
A. Sufficiency of the Evidence
When assessing the sufficiency of the evidence to support a finding under section
186.22, subdivision (b)(1), “we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither
reweighs the evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v.
Albillar (2010) 51 Cal. 4th 47, 60 (Albillar).)
15
Section 186.22 authorizes a 10-year sentence enhancement (subd. (b)(1)(C)) for
any violent 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” (subd. (b)(1)). The statute contains two distinct
prongs: the “benefit” prong and the “intent” prong. (Albillar, supra, 51 Cal.4th at p. 59.)
Defendants challenge both.
The first prong is phrased in the disjunctive and may be satisfied in any of three
ways: when the crime was committed “for the benefit of” the gang, when it was
committed “at the direction of” the gang, or when it was committed “in association with”
the gang. (§ 186.22, subd. (b)(1); People v. Leon (2008) 161 Cal. App. 4th 149, 162.) A
crime that meets any one of these criteria is “ ‘gang related’ ” for purposes of the statute.
(Albillar, supra, 51 Cal.4th at p. 60.)
Here, the jury could reasonably determine the following: all three defendants were
Norteño/FMT gang members; Essien and Mullan acted in concert when they raped Doe
in the home of Kuehn, another FMT gang member; and the rape was committed in
Calvo’s presence and with his explicit approval, in apparent retaliation for Doe’s earlier
rejection of Calvo. Tang, given hypothetical questions based on these facts, concluded
the rape was committed in association with the gang. In addition to Essien’s and
Mullan’s cooperation in effectuating the sexual assault, the presence of four gang
members in the bedroom was significant, as the perpetrators knew “no matter what
you’re going to have my back, no matter what I’m going to rely on you and we’re not
going to . . . snitch on each other.” “[T]he jury could reasonably infer the requisite
association from the very fact that [each] defendant committed the charged crimes in
association with fellow gang members.” (People v. Morales (2003) 112 Cal. App. 4th
1176, 1198 (Morales).)
The current case is similar to Albillar, in which the court upheld gang
enhancements for three fellow gang members convicted of rape and sexual penetration in
concert, based on their sexual assault of a young woman they knew. In rejecting an
argument there was insufficient evidence to prove the crimes were committed in
16
association with the gang, the court in Albillar cited the prosecution’s gang expert’s
testimony and explained, “Defendants not only actively assisted each other in committing
these crimes, but their common gang membership ensured they could rely on each other’s
cooperation in committing these crimes and that they would benefit from committing
them together. They relied on the gang’s internal code to ensure that none of them would
cooperate with the police. We therefore find substantial evidence that defendants came
together as gang members to attack [the victim] and, thus, that they committed these
crimes in association with the gang.” (Albillar, supra, 51 Cal.4th at pp. 61-62.)
As to the remaining charges, the jury could conclude from Tang’s testimony that
the robbery and assault were designed to isolate and intimidate Doe and that Calvo in
particular was acting to show his support of his fellow gang members. Substantial
evidence supports the conclusion these crimes were committed in association with the
gang, designed as they were to discourage a report of the gang-related rape.
Turning to the second prong of section 186.22, subdivision (b)(1), we consider
whether the evidence was sufficient to prove the defendants acted “with the specific
intent to promote, further or assist in any criminal conduct by gang members.” (Italics
added.) This provision is satisfied if the evidence demonstrates an intent to further any
criminal conduct by a gang member—including the charged offense—and does not
require a specific intent to assist the gang itself. (Albillar, supra, 51 Cal.4th at p. 67.)
“[I]f substantial evidence establishes . . . the defendant intended to and did commit the
charged felony with known members of a gang, the jury may fairly infer . . . the
defendant” had the requisite specific intent. (Id. at p. 68; see also People v. Ochoa (2009)
179 Cal. App. 4th 650, 661, fn. 6; People v. Villalobos (2006) 145 Cal. App. 4th 310, 322;
Morales, supra, 112 Cal.App.4th at p. 1198.) The evidence in this case readily supports
the inference all three defendants acted with the intent to promote, further or assist their
fellow gang members; i.e., each other.
Calvo argues Tang’s opinion does not supply substantial evidence to support the
verdict because Tang testified it was “based on the law which allows us to look as to why
it would be a gang case,” but never explained what he understood the law to be. Defense
17
counsel did not object on this basis, nor on the related ground Tang was offering an
improper opinion as to the application of the law, thus forfeiting the claim. (Evid. Code,
§ 353.)
B. Gang Expert’s Opinion on Defendants’ “Subjective Intent”
Calvo argues he was prejudiced because Tang offered an improper opinion
regarding his subjective intent when committing the robbery and assault. We disagree.
During direct examination, Tang opined the robberies in this case were done in
association with gang members. When asked to explain this opinion, Tang responded,
“Well, if I may be specific to Mr. Calvo[, who] did not actually participate in the sexual
assault itself, in my opinion it shows he’s trying to demonstrate to his fellow gang
members, even though I didn’t participate in the sexual assault itself I’m still going to get
my hands dirty [by] punching her in the face and taking her cell phone.” Defense counsel
objected on the ground Tang was “articulating [Calvo’s] subjective intent.” The court
overruled the objection, and the questioning proceeded as follows without further
objection:
“[Prosecutor:] If a particular gang member does not participate in [a] crime, is
that a negative?
“[Tang:] It can be looked at as a negative if there isn’t some sort of support
involved.
“[Prosecutor:] So they may never want to commit a further crime to show that
they are loyal to the gang?
“[Tang:] Correct, Sir.
“[Prosecutor:] So how would that play out in this situation in your opinion, Sir?
“[Tang:] In this situation, whereas in any type of situation with a gang member
who wasn’t involved in the initial crime, it shows that they are . . . dedicated to the gang
and they are [willing] to dirty their hands to show their fellow gang members even
though I didn’t participate in an initial crime with the rest of you, I am now dirtying my
hands[,] I am going to help assist you in your crime. In this situation, I’m going to take
her phone.”
18
In People v. Killebrew (2002) 103 Cal. App. 4th 644 (Killebrew), on which Calvo
relies, the court reversed the defendant’s conviction for conspiring to posses a handgun
(§ 182; former § 12031, subd. (a)(2)(C), now § 25850, subd. (c)(3)) where the gang
expert testified “when one gang member in a car possesses a gun, every other gang
member in the car knows of the gun and will constructively possess the gun.”
(Killebrew, at pp. 647, 652.) The court explained while a gang expert’s opinion may
address the ultimate issue in the case, it is improper to opine a “specific individual had
specific knowledge or . . . intent.” (Id. at pp. 657-658.) The expert’s testimony in
Killebrew provided the only evidence to establish the element of the charged crime, and it
did “nothing more than inform the jury how [the expert] believed the case should be
decided.” (Id. at p. 658; see also In re Frank S. (2006) 141 Cal. App. 4th 1192, 1194-1195
[finding the minor had carried concealed weapon for the benefit of a gang was reversed
where only evidence was gang expert’s testimony the minor would have used the knife to
protect himself from and attack rival gang members].) In People v. Vang (2011) 52
Cal. 4th 1038, 1046-1047 (Vang), the court disapproved Killebrew in part, and clarified a
gang expert may offer an opinion regarding the defendant’s intent so long as the expert
was responding to a hypothetical question based on the facts of the case, even if the
hypothetical was only “ ‘thinly disguised.’ ”
Tang’s initial testimony regarding Calvo’s motivation in committing the robbery
was offered in a form that amounted to an opinion on what a particular defendant was
thinking and, as such, it ran afoul of Killebrew. But the remainder of his testimony on the
subject was a more generalized description of how gang members would view an
associate who does not participate in a crime, and why a nonparticipant would want to
show his loyalty by assisting in other ways. This testimony regarding the culture and
habits of criminal street gangs was appropriate and admissible (People v. Gardeley
(1996) 14 Cal. 4th 605, 617) and did not in content vary materially from the objectionable
portion of Tang’s testimony. Tang’s opinion about Calvo’s desire to prove his loyalty to
the gang would have been admissible if it had been couched in a hypothetical based on
the circumstances of the case. (Vang, supra, 52 Cal.4th at p. 1046.) Any error in
19
allowing Tang to comment directly on Calvo’s motivation was harmless as it is not
reasonably probable Calvo would have obtained a more favorable result if that portion of
Tang’s testimony had been excluded. (People v. Watson (1956) 46 Cal. 2d 818, 836;
People v. Valdez (1997) 58 Cal. App. 4th 494, 511 (Valdez) [applying Watson standard to
erroneously admitted gang evidence].)
Defendants additionally argue Tang should not have been permitted to offer an
opinion the crimes were committed for the benefit of the gang and with the specific intent
to promote, further or assist in gang conduct, because this amounted to no more than a
subjective opinion about defendants’ state of mind. As the People note, the claim has
been forfeited for lack of a timely objection. (People v. Roberts (2010) 184 Cal. App. 4th
1149, 1193; Valdez, supra, 58 Cal.App.4th at p. 505.) For similar reasons, we reject
Calvo’s challenge to the format of the prosecutor’s hypothetical questions on this subject,
which asked Tang to “assum[e] the facts in this case, as you know them to be.”
C. Unduly Prejudicial Evidence of Gang History and Gang Contacts
Defendants argue Tang’s testimony regarding the formation of the Nuestra Familia
and the Norteños was more prejudicial than probative (Evid. Code, § 352). Recognizing
the lack of a contemporaneous trial objection, they argue the issue was preserved by a
motion in limine seeking to bifurcate evidence of the gang enhancements generally. We
disagree. “A motion in limine can preserve an appellate claim, so long as the party
objected to the specific evidence on the specific ground urged on appeal at a time when
the court could determine the evidentiary question in the proper context. [Citations.]”
(People v. Solomon (2010) 49 Cal. 4th 792, 821.) The pretrial request to bifurcate the
gang enhancements focused on Doe’s prior inconsistent statements, which allegedly
weakened the evidence of the substantive charges, and was insufficient to generally alert
the court to the specific aspects of Tang’s testimony now alleged to be unduly prejudicial.
Defendants also argue the court should not have allowed Tang to testify about
various prior gang contacts to prove their membership in the gang: Essien’s attendance of
a gang member’s funeral and his participation in a gangster rap video, Mullan’s arrest for
possession of cocaine in the presence of two other gang members, Calvo’s attempted
20
theft of construction materials while flashing gang signs and challenging the onsite
workers to a fight, followed by his urination in the jailhouse holding cell. Assuming this
issue was adequately preserved by the litigation of the People’s in limine motion
concerning the admissibility of defendants’ gang contacts, we conclude the court did not
abuse its discretion in allowing the evidence. (See People v. Avitia (2005) 127
Cal. App. 4th 185, 193.) It was highly probative on the disputed issue of whether
defendants were members of the gang, and was not unduly prejudicial in light of the facts
of this case. We note the trial court did exclude evidence of several other contacts the
prosecution sought to introduce.
IV. Denial of Posttrial Marsden Motion (Mullan)
On the day of his sentencing hearing, Mullan brought a motion for substitute
appointed counsel under Marsden, supra, 2 Cal. 3d 118. He contends the court erred in
denying the motion and asks us to remand the case for further inquiry into the
effectiveness of trial counsel. We reject the claim.
The court conducted an in camera hearing on the date of sentencing at which
Mullan listed a number of reasons he believed he was not adequately represented at trial,
including: (1) counsel never reviewed the police reports with him; (2) counsel repeatedly
told him he would not be found guilty and would be exonerated by DNA evidence;
(3) counsel told him he would not need to testify and never advised him of his right to
testify; (4) counsel only met with him “one or two, three times for about 30 minutes each
time to talk about this case”; (5) counsel never explained how much time he was facing if
found guilty; (6) counsel never played the taped statement of Doe for him, which would
have established his innocence; (7) counsel never discussed the gang allegation; (8) he
(Mullan) never spoke to any investigator while preparing for trial; and (9) Kuehn was not
called as a witness.
Asked by the court to respond, counsel indicated (1) he had gone over all of the
charges with Mullan and advised him of his possible exposure, including the penalty for
the gang enhancement; (2) he had never told Mullan he would be acquitted; (3) he had
never advised Mullan he should not testify; (4) he had given Mullan all of the criminal
21
discovery in the case and had discussed the evidence in general, even if he did not go
through the police reports with his client line-by-line; (5) he had advised Mullan the lack
of DNA evidence linking him to the crime was very strong evidence in his favor, but he
never said it would exonerate him; (6) he had seen Mullan several times more than
Mullan claimed, both with and without an investigator; (7) Mullan had been given the
transcripts of the statements made by the victim and counsel cross-examined her using
her prior statements; and (8) he did subpoena Kuehn but did not call him as a witness
because Kuehn would have been represented by the public defender and would be
unlikely to testify. The court denied the Marsden motion as untimely and additionally
found insufficient grounds for granting the motion, crediting counsel’s versions of events
over Mullan’s.
A court faced with a Marsden motion for substitute counsel based on inadequate
representation must hold a hearing and give the defendant the opportunity to explain the
basis for his claims. (Valdez, supra, 32 Cal.4th at p. 95.) After the court has held a
hearing on the matter, the decision to substitute counsel (or not) is one that rests in the
sound discretion of the trial court, a defendant having no absolute right to more than one
appointed attorney. (Marsden, supra, 2 Cal.3d at p. 123.) We review the trial court’s
ruling for abuse of discretion in light of the circumstances of the particular case,
including (1) the timeliness of the motion; (2) the adequacy of the trial court’s inquiry
into the defendant’s complaints; and (3) whether the conflict between the defendant and
counsel is so great it resulted in a total lack of communication and prevented an adequate
defense. (People v. Cole (2004) 33 Cal. 4th 1158, 1190; People v. Smith (2003) 30
Cal. 4th 581, 606-607.) A defendant bears a “very heavy burden” when bringing a
Marsden motion. (People v. Bills (1995) 38 Cal. App. 4th 953, 961.)
The court denied Mullan’s Marsden motion based on its lack of timeliness and on
its merits. Although Mullan correctly asserts a defendant can request substitute counsel
at any time (People v. Smith (1993) 6 Cal. 4th 684, 695), the court’s ruling in this case
was not based exclusively on the timing of the motion. Rather, the court listened to
Mullan’s complaints, elicited a response from counsel, and, crediting counsel, concluded
22
there was no basis for finding inadequate representation. This was not an abuse of
discretion.
V. Section 654 (Essien)
Essien’s sentence of 34 years four months includes a consecutive term for the
robbery count and the gang enhancement attached to that count. He argues the court
should have stayed this portion of the sentence under section 654, which precludes
multiple punishment for a single act or indivisible course of conduct. (People v. Shaw
(2004) 122 Cal. App. 4th 453, 458.) We disagree.
Whether a course of conduct is indivisible for purposes of section 654 depends on
the intent and objective of the actor. (People v. Hairston (2009) 174 Cal. App. 4th 231,
240.) “ ‘It is [the] defendant’s intent and objective, not the temporal proximity of his
offenses, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all
of the offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, [the] defendant may be found to have harbored a single intent
and therefore may be punished only once. [Citation.] [¶] If, on the other hand, [the]
defendant harbored “multiple criminal objectives,” which were independent of and not
merely incidental to each other, he may be punished for each statutory violation
committed in pursuit of each objective, “even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.” [Citation]’ [Citation.]”
(People v. Douglas (1995) 39 Cal. App. 4th 1385, 1393 (Douglas).) “A trial court’s
implied finding that a defendant harbored a separate intent and objective for each offense
will be upheld on appeal if it is supported by substantial evidence. [Citation.]” (People
v. Blake (1998) 68 Cal. App. 4th 509, 512.)
The trial court could quite reasonably conclude the rape and robbery involved
multiple criminal objectives and were not merely incidental to each other. Though the
crimes were committed in close proximity to one another, the court may have believed
the robbery was committed as an afterthought, to obtain Doe’s identification and
discourage her from reporting the sexual assault. (Douglas, supra, 39 Cal.App.4th at
p. 1393 [noting rule that “multiple punishment may be imposed where the defendant
23
commits one offense with one intent, then, as an afterthought, forms the independent
intent to commit a second offense”].) Even if both the rape and the robbery were
motivated by the desire to punish Doe for rejecting Calvo at the party, this did not negate
other, separate intents and objectives: a desire to achieve sexual gratification during the
rape, a desire to obtain valuable property during the robbery.
Essien suggests that because the prosecution argued the rape and robbery were
part of a single transaction for purposes of determining whether the defendants could be
jointly tried under section 1098, the crimes “logically” were part of a single transaction
for purposes of section 654. We do not agree. Section 1098 and the case law interpreting
it prohibits the joint trial of defendants who are not charged with a common offense or
with offenses committed as part of the same transaction, the primary purpose of this rule
being to guard against undue prejudice that would flow from the introduction of
otherwise inadmissible evidence about crimes unrelated to those for which the defendant
is charged. (Hernandez, supra, 143 Cal.App.3d at pp. 940-941.) Section 654 addresses a
fundamentally different issue: whether multiple offenses committed by the same
defendant during a course of conduct are indivisible, such that a single defendant should
be punished only once. “[T]he purpose of section 654 is to ensure that a defendant’s
punishment is commensurate with his culpability.” (People v. Correa (2012) 54 Cal. 4th
331, 341.)
To say the crimes committed by Essien, Mullan, and Calvo were sufficiently
intertwined to warrant a joint trial due to the commonality of the evidence to be presented
does not answer whether Essien should be punished for both the rape and the robbery. A
defendant who rapes and robs his victim is far more culpable than a defendant who
commits only one of these offenses. In this case, in particular, the two crimes involved
separate acts of violence and separate violations of the victim’s bodily integrity. The
consecutive sentence on the robbery count did not violate section 654.
VI. Cumulative Error
Defendants argue the trial was fundamentally unfair due to the cumulative effect
of the errors described above, even if those errors were not individually prejudicial.
24
Defendants have demonstrated only one error (Tang’s testimony regarding Calvo’s
subjective motivation) and we have found that error harmless. There are no other errors
to cumulate. (People v. Linton (2013) 56 Cal. 4th 1146, 1217.)
DISPOSITION
The judgments are affirmed.
NEEDHAM, J.
We concur.
JONES, P.J.
BRUINIERS, J.
25