People v. Nezey CA2/6 ( 2014 )

Filed 9/9/14 P. v. Nezey CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B237658
(Super. Ct. No. BA365391)
Plaintiff and Respondent, (Los Angeles County)
v.
DORIAN NEZEY,
Defendant and Appellant.
Dorian Nezey appeals the judgment entered after a jury convicted him of
shooting at an inhabited dwelling (Pen. Code,1 § 246) and two counts of second degree
robbery (§ 211). The jury also found the crimes were committed for the benefit and in
furtherance of a criminal street gang (§ 186.22, subds. (b)(1)(C), (b)(4)).2 The trial court
sentenced him to 19 years to life in state prison, consisting of 15 years to life for the
section 246 charge, three years for the robbery charged in count 2, and one year for the
robbery charged in count 3. In challenging his conviction for shooting at an inhabited
1 All further undesignated statutory references are to the Penal Code.
2 Appellant's codefendant Deon Stillwell was charged with shooting at an
inhabited dwelling and with being a felon in possession of a firearm (former § 12021,
subd. (a)(1)). The robbery counts against appellant were severed. Stillwell was
convicted as charged, and we affirmed the judgment in a separate appeal. (People v.
Stillwell (Dec. 19, 2011, B224396) [nonpub. opn.].) The jury was unable to reach a
verdict as to appellant on the section 246 charge and a mistrial was declared. Appellant
was convicted on retrial and was subsequently convicted on both robbery counts.
dwelling and the attendant gang enhancement, appellant contends (1) the court erred in
denying his motion for a mistrial; (2) the court abused its discretion in excluding certain
evidence; (3) the prosecutor committed misconduct; (4) the evidence is insufficient to
support the "primary activities" element of the gang enhancement; and (5) the judgment
must be reversed due to cumulative error and ineffective assistance of counsel. Appellant
does not challenge his robbery convictions, but claims the gang enhancements on both
counts must be reversed for insufficient evidence. We affirm.
STATEMENT OF FACTS
Shooting at an Inhabited Dwelling
On June 7, 2009,3 Los Angeles Police Officers Gabriel Holguin and
Nicholas Hartman were assigned to monitor the 59 Hoovers, a clique of the Hoover Crips
gang. The officers went to the 59 Hoovers' "headquarters" at 59th Street and Denver
Avenue and made contact with a group of men that included appellant and Stillwell.
Officers Holguin and Hartman spoke with the men for a few minutes and then left.
Not long after, a group of young African-American men walked by Lynn
Hall's residence on West 62nd Street. Hall and a friend were sitting on Hall's front porch
while two of her children were playing in the yard. Three of the men—two of whom Hall
later identified as appellant and Stillwell—"mad-dogged" Hall as they walked by.4
Appellant and Stillwell returned about two minutes later. Stillwell told Hall, "You better
g[e]t the fuck out of this neighborhood if you know what's good for you, bitch." Hall
grabbed her children and went inside. Moments later she heard gunshots and the sound
of a breaking window.
Hall's neighbor Iliana Vargas looked outside and saw several adults and
children in front of Hall's house. Several African-American men were standing by two
3 All further date references are to the year 2009.
4 Ten days after the incident, Hall identified appellant and Stillwell's photographs
out of four six-pack lineups. As to appellant's photograph, she wrote "[t]he person I
circled looks close to the guy I saw approach my yard with the group that threatened me
and shot up my house." She wrote that Stillwell "looks familiar to the one that talked shit
with the group."
2
cars that were parked in front of the house. Vargas subsequently heard gunshots and the
sound of burning rubber. A minute or so later, she looked outside again and saw Stillwell
and another man who fit appellant's description running down the street. Stillwell was
holding a revolver and shooting toward Hall's house. The man who fit appellant's
description was holding a longer gun, but Vargas did not see him fire it.
Although Vargas could not identify appellant or Stillwell in court, she
identified Stillwell during an in-field showup and described the other man as having
appellant's same stature and build. Her description of both men's clothing was also
substantially consistent with Hall and Officer Holguin's descriptions of the clothing
appellant and Stillwell were wearing that day.
Officers Holguin and Hartman were still nearby when they received a call
regarding the incident. The call informed them of the location of the shootings, but did
not give any description of the suspects. As the officers were driving toward the scene,
they saw appellant on foot turn the corner from 62nd Street onto Figueroa, then quickly
walk up Figueroa toward Slauson Avenue. After speaking with Hall and Vargas, the
officers identified appellant and Stillwell as likely suspects. Vargas also told the officers
she had seen the suspects getting out of a blue Ford Explorer, Bronco, or truck.
The police found two bullet strikes in the wall of Hall's house and a pellet
mark from a shotgun near the front window. Single bullet holes were found in a vehicle
parked 40 feet away on the same side of the street as Hall's residence, and in a car and a
van parked on the other side of the street. A spent shotgun shell was found on the
sidewalk.
Someone at the scene told Officer Holguin that two men with guns were
seen entering a residence a block away at 533½ Gage Avenue. Officers were dispatched
to the residence and to Stillwell's nearby residence at 679 Gage. In a bedroom at 533½
Gage, officers found a shotgun with a live round in the chamber, a live shotgun shell, and
a revolver with five spent casings. Officers also retrieved a copy of a state identification
card belonging to Kentrell Castine and an envelope addressed to him at the residence.
3
As the police were arriving at 679 Gage, Stillwell and another man were
seen leaving in a blue Ford Explorer. Stillwell and the other man were stopped shortly
thereafter. Vargas identified Stillwell as one of the shooters during an in-field showup.
When Hall was questioned at the scene, she told the police she had recently
ended a relationship with a 59 Hoovers associate and he had told her to move out of the
neighborhood. Hall refused to disclose her ex-boyfriend's identity because she had to
continue living in the neighborhood and did not believe the police would protect her. She
also knew the monikers of some of the other men involved but did not reveal them out of
fear for her safety.
On June 17, Hall was interviewed by Detective Dean Vinluan. During the
interview, Hall identified Kentrell Castine as her ex-boyfriend. Detective Vinluan,
however, did not include this information in his report. Hall reiterated her identification
of Castine when she testified at trial.
A firearms analyst testified that the spent shotgun shell and shell casings
recovered from the scene of the shootings were discharged from the shotgun and revolver
found at 533½ Gage. Genetic evidence recovered from the two weapons was found to
contain a mixture of DNA from three or more individuals. Stillwell could not be
excluded as a contributor of DNA recovered from the shotgun, while the results as to
appellant were inconclusive. Both men were excluded as contributors of DNA found on
the revolver.
On July 8, appellant shouted and flashed gang signs at people attending a
rival gang member's funeral. He then got into a car that sped away. When the police
attempted to conduct a traffic stop of the car, appellant fled on foot. He was arrested
after a brief pursuit.
Officer Holguin testified as the prosecution's gang expert. The 59 Hoovers
are one of several cliques or subsets of the Hoover Crips. The cliques' names correspond
to the number of the streets they claim as their territory. The 59 Hoovers' territory
includes the area where Hall lived.
4
The 59 Hoovers had about 100 active members at the time of the shootings.
The gang's primary activities included robberies, marijuana sales, and illegal weapons
possession. Appellant and Stillwell were both members of the gang. Appellant's gang-
related tattoos include one that says "50's" above his right eye, the Roman numeral "V"
behind his left ear, the Roman numeral "IX" behind his right ear, "HCG" on the top of his
left hand, a die showing a five on his right hand, and a die showing numbers adding up to
nine on his left hand.
When presented with a hypothetical based on the facts of the case, Officer
Holguin opined that the crime was committed in association with and for the benefit of a
criminal street gang. It would be seen as a sign of disrespect if a woman who was no
longer associated with the gang did not leave the neighborhood when told to do so.
Shooting at the woman's house would benefit the gang by promoting fear and
intimidation in the neighborhood. It would also boost the perpetrators' reputations on the
street and within the gang.
Robberies
At around noon on May 29, Shanisha Golden was walking on Hoover
Street when appellant rode up on a bicycle. Appellant asked Golden what her name was
and if she had a boyfriend. Golden gave appellant a false name and told him she was
going to meet someone. As Golden began walking away, appellant grabbed the gold
chain necklace she was wearing. The necklace had a pendant in the shape of a star,
which is a symbol of the Hoover Crips. Appellant took the necklace after a struggle and
rode away.
Golden called 911 and reported being robbed by someone "from Hoover."
Golden believed the perpetrator was a member of the gang based on the location of the
crime. She said appellant had warned her, "Bitch, you better not tell the police my
name." She later told the police the perpetrator had a tattoo with writing over his right
eye and a large scar on the right side of his neck. She also said the man was known as
"T," which is short for "Trouble." Golden identified appellant from a photograph based
5
on his tattoo and scar. When asked to identify appellant at trial, however, Golden claimed
she had never seen him before.
At about 2:00 p.m. on June 30, Allen Cardoza saw a man beating Timeshia
Pierson on the corner of 74th Street and Figueroa. The man hit Pierson numerous times,
then took her purse and walked away. The man went through the purse, threw it in the
gutter, and continued walking. Pierson was interviewed at the scene, but the police were
subsequently unable to locate her. Cardoza identified appellant from a photograph based
on his tattoos. When Cardoza testified at trial, he said appellant did not look familiar.
Although the robberies were committed within the territories of two other
cliques of the Hoover Crips, appellant had tattoos indicating that he claimed membership
in those cliques as well. Officer Hartman had seen appellant with the other cliques'
members and had also seen him within their territories. Moreover, members of the
separate cliques were allowed to commit crimes anywhere within the Hoover Crips'
territory.
When presented with a hypothetical based on the facts of the case, Officer
Holguin opined that the robberies were committed for the benefit of a criminal street
gang.
DISCUSSION
Shooting at an Inhabited Dwelling (§ 246)
Mistrial Motion
Hall identified Castine when she was interviewed by Detective Vinluan 10
days after the shootings. The detective, however, did not include this in his report and
did not disclose it to the prosecutor until the third day of retrial of the section 246 charge.
By then, appellant's attorney knew about Castine—indeed, counsel had learned the
information from Hall herself just prior to retrial and had referred to Castine in his
opening statement.
Counsel nevertheless moved for a mistrial, claiming the delayed disclosure
had prevented him from adequately preparing a defense. The court denied the motion
with a qualification: If appellant were convicted, the court would delay sentencing to
6
allow counsel to investigate Castine and move for a new trial if warranted by the results
of that investigation. At appellant's request, the court also instructed the jury pursuant to
CALCRIM No. 306 that it could consider whether the delayed disclosure of Castine's
identity had prevented appellant from fully presenting his defense or otherwise interfered
with his right to a fair trial.5
In subsequently moving for a new trial on the section 246 charge, defense
counsel offered that Castine "was residing in Georgia at the time of . . . [re]trial and was
not available for immediate interview or subpoena." The court denied the motion, noting
it had offered to pay for any post-trial investigation of Castine and that "months have
gone by to allow the defense to pursue that [investigation] if they felt . . . it was
warranted[.]"
Appellant contends the court erred in denying his mistrial motion. He
claims the prosecution's delayed disclosure of Hall's identity of Castine "was Brady[6]
error, or at a minimum, error under the California rules governing discovery." He claims
the court's ruling also rendered it impossible for his trial attorney to provide
constitutionally effective assistance of counsel. We are not persuaded.
"[W]e review a ruling on a motion for mistrial for an abuse of discretion,
and such a motion should be granted only when a party's chances of receiving a fair trial
have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.)
"'Whether a particular incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion in ruling on mistrial
motions.' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 573.)
5 The jury was instructed: "Both the prosecution and the defense under our rules
must disclose their evidence to the other side, each other, before trial within a certain
limited time period that's set by law. [¶] Failure to follow this rule may deny the other
side a chance to produce all relevant evidence, to counter opposing evidence or to receive
a fair trial. [¶] The prosecution by way of the D.A. under the circumstances of this case
failed to disclose that Ms. Hall had said that Mr. Castine had been a boyfriend. [¶] In
evaluating the fact and significance of that piece of evidence you may consider the effect,
if any, of that late disclosure."
6 (Brady v. Maryland (1963) 373 U.S. 83.)
7
Appellant fails to demonstrate that a mistrial should have been declared due
to Brady error. "'. . . There are three components of a true Brady violation: The evidence
at issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.' [Citation.]" (People v. Salazar (2005)
35 Cal.4th 1031, 1042–1043.) Under Brady, "evidence that is presented at trial is not
considered suppressed, regardless of whether or not it had previously been disclosed
during discovery." (People v. Morrison (2004) 34 Cal.4th 698, 715.)
The evidence that Hall had identified Castine as her ex-boyfriend was not
"suppressed" under Brady because it was presented at trial. Appellant also fails to show
that Castine's identity was both material and favorable to the defense, or that appellant
was prejudiced by the delayed disclosure of that information. In attempting to make
these showings, appellant simply asserts that Castine's identity was an "important fact"
because "had counsel known that [Castine] was, in fact, named by Hall as her ex-
boyfriend prior to trial, counsel could have obtained evidence favorable to the defense or
leading to evidence favorable to the defense." This speculative assertion does not
establish prejudice. Appellant must do more than hypothesize that an investigation may
have led to some unspecified evidence that may or may not have been favorable to him.
(See People v. Salazar, supra, 35 Cal.4th at pp. 1043, 1049–1050 [Brady does not require
disclosure of information that "might" prove helpful to the defense].)
We also reject appellant's assertion that the court should have declared a
mistrial on the ground the prosecution violated the reciprocal discovery requirements set
forth in section 1054.1. The statute "requires the prosecution to disclose to the defense,
in advance of trial or as soon as discovered, certain categories of evidence 'in the
possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in
the possession of the investigating agencies.'" (People v. Zambrano (2007) 41 Cal.4th
1082, 1133, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22; § 1054.1.) It is undisputed that the prosecutor was not aware of Hall's
statement identifying Castine until the detective revealed it to her on the third day of
8
retrial. The prosecutor then immediately disclosed the evidence to the court and defense
counsel. Any prejudice appellant may have suffered as a result of the delayed disclosure
was eliminated by the giving of CALCRIM No. 306.
Appellant also fails to demonstrate that the delayed disclosure of Castine's
identity caused his trial attorney to provide constitutionally ineffective assistance of
counsel. As we have noted, counsel discovered the information through his own
investigation and had ample time to investigate Castine in anticipation of a new trial
motion. Moreover, appellant merely speculates that an earlier investigation would have
led to evidence favorable to the defense. His claim of ineffective assistance accordingly
fails. (People v. Berryman (1993) 6 Cal.4th 1048, 1052, 1082, fn. omitted, disapproved
on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [ineffective assistance
claim premised on inadequate investigation lacks merit where defendant "does not
demonstrate that the investigation would have yielded favorable results and hence cannot
demonstrate that its omission adversely affected the outcome within a reasonable
probability"].)
Unidentified Witness Statement
During their investigation of the shootings, the police discovered that one
of the vehicles struck by gunfire was registered to Darrell Anderson. Officer Holguin
knew of Anderson and believed he was a member of the Rolling 20's Hollywood Crips, a
rival gang whose territory is adjacent to the 59 Hoovers' territory. On retrial of the
section 246 charge, appellant's attorney sought to admit this evidence along with a
statement from a police report indicating that "an unidentified witness stated that they
saw Darrell Anderson there and he was shooting." Counsel argued the statement was
admissible hearsay because it was corroborated by the evidence that Anderson's vehicle
was at the scene and thus had "an indicia of reliability." Counsel asserted that the
statement was relevant to impeach Hall because Hall "said she strictly dates Crips and
coincidentally there's a Crip in enemy territory . . . parked across the street from her
house. [¶] That would give a very reasonable inference that she is protecting her
boyfriend who did the shooting and as a good faith belief the unknown person saying he
9
was shooting." Counsel alternatively claimed the statement was admissible as
nonhearsay to explain why the police investigated Anderson's vehicle. The court
excluded the evidence, reasoning that "it's too speculative based on the information that I
have now."
Appellant contends the court erred in excluding the statement. For the first
time on appeal, he claims the statement should have been admitted as a spontaneous
declaration under Evidence Code section 1240. This claim was not raised below and is
thus forfeited. In any event, appellant fails to make the requisite showing for
admissibility under Evidence Code section 1240. His offer of proof at trial consisted of
the prosecutor's representation that "an unidentified witness stated that they saw Darrell
Anderson there and he was shooting." The record thus provides no insight into whether
the declaration was either spontaneous or made under the stress of excitement, both of
which are prerequisites for admissibility of a hearsay statement under subdivision (b) of
Evidence Code section 1240.
We also reject appellant's claim that the statement should have been
admitted for the nonhearsay purpose of explaining why the police investigated
Anderson's car. Testimony offered to explain why an officer acted as he or she did in a
given situation is only relevant when the good faith or reasonableness of the particular
action is at issue. (People v. Lucero (1998) 64 Cal.App.4th 1107, 1109-1110.) That is
not the case here. The officers' reasons for investigating Anderson's car were irrelevant
to prove or disprove that appellant was guilty of shooting at Hall's residence.
In any event, any error in excluding the statement was harmless. Contrary
to appellant's claim, the application of ordinary rules of evidence does not implicate any
of his rights under the federal Constitution. Any error in excluding hearsay pursuant to
the Evidence Code is thus reviewed under the standard set forth in People v. Watson
(1956) 46 Cal.2d 818 (Watson). (People v. Harris (2005) 37 Cal.4th 310, 336 (Harris);
compare Chambers v. Mississippi (1973) 410 U.S. 284 [state evidentiary rule prohibiting
defendant from impeaching his own witnesses violated right to due process].) Evidence
that Anderson was one of the shooters would not have aided appellant's defense. As
10
appellant acknowledges, the unidentified witness did not say that Anderson was the only
shooter; on the contrary, he or she said that Anderson "was shooting at the individuals
who shot Hall's house." Moreover, there was ample evidence identifying appellant as one
of those individuals. Because it is not reasonably probable that appellant would have
achieved a more favorable result had the statement been admitted, any error in its
exclusion was harmless. (Watson, supra, at p. 836; see also Evid. Code, § 353, subd.
(b).)
911 Calls
In the course of discovery, the defense received transcripts of the 911 calls
that were made in response to the shootings. Appellant sought to introduce the
transcripts in their entirety on the ground that the callers' statements qualified as
spontaneous declarations under Evidence Code section 1240. In declining the request,
the court noted that "half of those calls or more are . . . double, triple hearsay. I can't let
that in."
Appellant contends the court erred in excluding the transcripts. We
conclude otherwise. The requisite foundation for admissibility under Evidence Code
section 1240 is absent. Other than one caller who identifies herself as "Cecilia," the
identity of the individuals who made the calls is unknown. Some of the statements
included in the transcripts—like one in which the caller conveys her brother-in-law's
description of a possible suspect—are double hearsay. Two calls were made well after
the shootings had stopped. In other calls, it is not clear whether the declarant is relating
his or her own eyewitness observations, or merely drawing factual inferences from those
observations.
Even if appellant could establish that some of the statements in the
transcripts should have been admitted as spontaneous declarations, he fails to
demonstrate that their exclusion compels reversal of his conviction. To establish
prejudice, appellant must show it is reasonably probable he would have achieved a more
favorable result had the evidence been admitted. (Harris, supra, 37 Cal.4th at p. 336;
Watson, supra, 46 Cal.2d at p. 836.) Appellant fails to make such a showing. The
11
majority of the statements were consistent with the prosecution's theory of the case. To
the extent some of the statements supported appellant's theory that more than two
shooters were involved, the jury could infer this from the evidence that bullet holes were
found in vehicles across the street from Hall's residence. In any event, additional
evidence of a third shooter would have been insufficient to undermine the evidence of
appellant's guilt. Any error in excluding the statements was harmless.
Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct during closing
argument by commenting on the lack of evidence that a third person was involved in the
shootings. We agree that the prosecutor should have refrained from making the
comments, but deem the error harmless.
"'Under California law, a prosecutor commits reversible misconduct if he or
she makes use of "deceptive or reprehensible methods" when attempting to persuade
either the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have resulted. [Citation.]
Under the federal Constitution, conduct by a prosecutor that does not result in the denial
of the defendant's specific constitutional rights—such as a comment upon the defendant's
invocation of the right to remain silent—but is otherwise worthy of condemnation, is not
a constitutional violation unless the challenged action "'so infected the trial with
unfairness as to make the resulting conviction a denial of due process.'" [Citation.]'
[Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 679.)
"If a prosecutorial misconduct claim is based on the prosecutor's arguments
to the jury, we consider how the statement would, or could, have been understood by a
reasonable juror in the context of the entire argument. [Citations.]" (People v. Woods
(2006) 146 Cal.App.4th 106, 111.) "No misconduct exists if a juror would have taken the
statement to state or imply nothing harmful. [Citation.]" (Ibid.)
In his closing argument, appellant's attorney argued that the evidence
suggested there had been crossfire and asked, "Weren't the fact bullets are going both
ways, isn't that more consistent with there's a fight between people?" Counsel then
12
posited, "Was this gunfire exchange between people at [a] party [at Hall's house] and
somebody in [a] car? Think about it. It conforms to all evidence, the credible evidence
given in this case."
In rebuttal, the prosecutor characterized appellant's theory as a "red herring"
and argued, "Gunfire in both directions. There were no – there was no evidence. The
police were never directed to a third shooter. There was only evidence that two people
were shooting that day on that street."
Appellant's attorney objected, and the court overruled the objection.
Counsel subsequently moved for a mistrial, claiming the prosecutor improperly
"commented on the absence of evidence of somebody else shooting when there was
evidence." The prosecutor believed her comments were proper because "as it is in this
trial there was no evidence that any other people were shooting." The court declined to
order a mistrial.
Appellant argues that the prosecutor's challenged remarks were deceptive
and misleading in light of her knowledge that (1) an unidentified witness said that
Anderson was present and shooting; and (2) one of the 911 callers reported seeing
someone shooting from Hall's residence. Although evidence of these facts was excluded,
appellant contends the prosecutor had an obligation to refrain from arguing the lack of
such evidence. For support, he cites two cases in which the prosecutor capitalized on
erroneous evidentiary rulings (People v. Daggett (1990) 225 Cal.App.3d 751; People v.
Varona (1983) 143 Cal.App.3d 566), and another in which the prosecutor commented on
the defendant's failure to call a witness the prosecutor knew had rendered himself
unavailable to testify (People v. Frohner (1976) 65 Cal.App.3d 94, 108-109).
Here, it is technically correct that the prosecutor did not exploit any
erroneous evidentiary ruling in stating there was no evidence of a third shooter. The
prosecutor went too far, however, in representing that "the police were never directed to a
third shooter." It is misconduct for a prosecutor to argue facts she knows to be false.
(People v. Varona, supra, 143 Cal.App.3d at pp. 569-570.) The prosecutor knew the
13
police had investigated eyewitness reports of a third shooter, so her assertion to the
contrary was misconduct.
Although we conclude that the prosecutor's comment was improper, it did
not result in prejudice. A single improper comment in a lengthy argument does not
render a trial fundamentally unfair under the federal Constitution. (People v. Pensinger
(1991) 52 Cal.3d 1210, 1250.) Such instances of misconduct are harmless absent a
reasonable probability the error affected the outcome. (People v. Bordelon (2008) 162
Cal.App.4th 1311, 1324; People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1260.) Here,
the prosecutor's comment was brief and related to an issue collateral to the determination
of appellant's guilt. Moreover, we presume the jury followed the instruction that the
attorney's remarks were not evidence. (People v. Anzalone (2013) 56 Cal.4th 545, 557.)
Although the prosecutor told the jury there was no evidence of a third shooter, appellant's
attorney identified evidence indicating otherwise. Any error occasioned by the
prosecutor's improper comment was accordingly harmless.
Gang Enhancement
Appellant contends the gang enhancement on the section 246 charge must
be reversed because the evidence is insufficient to prove the "primary activities" element
of the gang statute (§ 186.22, subd. (f)). We are not persuaded.
We review findings on a gang enhancement allegation under the same
substantial evidence standard as any other conviction. (People v. Ochoa (2009) 179
Cal.App.4th 650, 656-657.) Accordingly, "we review the whole record to determine
whether any rational trier of fact could have found the essential elements [of the
enhancement] beyond a reasonable doubt. . . . In applying this test, we review the
evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The gang statute applies to felons whose crimes were committed for the
benefit of a "criminal street gang." (§ 186.22, subd. (b).) To establish that a group is a
criminal street gang, the prosecution must show (1) the group has "as one if its primary
14
activities the commission of one or more" statutorily enumerated crimes, and (2) the
group's "members individually or collectively engage in or have engaged in a pattern of
criminal gang activity." (§ 186.22, subd. (f).) To satisfy the primary activities element,
the commission of an enumerated crime must be one of the group's chief or principal
occupations. (People v. Vy (2004) 122 Cal.App.4th 1209, 1222 (Vy).)
The primary activities element may be established by expert testimony that
the gang was primarily engaged in the commission of a statutorily enumerated offense.
(Vy, supra, 122 Cal.App.4th at pp. 1222-1223.) Detective Holguin opined that the 59
Hoovers' primary activities included selling marijuana, which is one of the crimes
enumerated in the gang statute. (§ 186.22, subd. (e)(4).) The detective also provided a
sufficient basis for his opinion. He detailed his experience working in the gang unit and
monitoring the activities of the 59 Hoovers. He explained how he had maintained
frequent contact with members of the gang and was able to describe its history and
organization. The detective also investigated the instant case and recounted that a
member of the gang had been convicted of selling marijuana. The detective's detailed
explanation of the basis for his opinion demonstrates his knowledge that selling
marijuana was one of the gang's primary activities. (People v. Sengpadychith (2001) 26
Cal.4th 316, 323–324.) This evidence was sufficient to satisfy the primary activities
element of the gang statute.
Cumulative Error; Ineffective Assistance
Appellant contends the cumulative effect of the errors that took place on
retrial of the section 246 charge compel a reversal of his conviction. He also claims that
his trial attorney's failure to preserve any of his claims of error amounts to ineffective
assistance of counsel. There is, however, no error to cumulate. Moreover, the result
would have been no different if counsel had raised the now-forfeited claim that the
unidentified witness statement regarding Anderson was admissible as a spontaneous
declaration. Accordingly, counsel's failure to preserve the claim did not amount to
ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
15
The Gang Enhancements on the Robbery Convictions
Appellant contends the gang enhancements on his robbery convictions must
be reversed because the evidence is insufficient to support the jury's findings that the
crimes were committed for the benefit and in furtherance of a criminal street gang.
Reviewing the entire record in the light most favorable to the judgment and drawing all
inferences the jury could reasonably have drawn from the evidence (People v. Albillar
(2010) 51 Cal.4th 47, 59-60 (Albillar)), we conclude that substantial evidence supports
the jury's findings.
A finding under section 186.22, subdivision (b)(1), has two elements: (1)
the crime was committed for the benefit of, at the direction of, or in association with a
criminal street gang; and (2) the crime was committed with the specific intent to promote,
further, or assist in any criminal conduct by gang members. (Albillar, supra, 51 Cal.4th
at pp. 64–68.) "It is well settled that expert testimony about gang culture and habits is the
type of evidence a jury may rely on to reach a verdict on a gang-related offense or a
finding on a gang allegation. [Citation.]" (People v. Ferraez (2003) 112 Cal.App.4th
925, 930.) In addition, the jury may consider an expert's opinion that an offense is gang
related so long as the opinion is given in response to a hypothetical question "rooted in
facts shown by the evidence . . . . [Citations.]" (People v. Gardeley (1996) 14 Cal.4th
605, 618.) "Expert opinion that particular criminal conduct benefited a gang by
enhancing its reputation for viciousness can be sufficient to raise the inference that the
conduct was 'committed for the benefit of . . . a[ ] criminal street gang' within the
meaning of section 186.22(b)(1). [Citations.]" (Albillar, supra, at p. 63.)
Detective Holguin opined that the robberies were committed for the benefit
and in furtherance of a gang. In giving that opinion, the detective recounted the evidence
indicating that appellant claimed membership not only in the 59 Hoovers, but in all
cliques of the Hoover Crips. The detective also explained that clique members are
allowed to commit crimes on behalf of their clique anywhere within Hoovers Crips
territory. Here, both robberies were committed in broad daylight in Hoover Crips
territory, and strong-arm robberies are one of the gang's primary activities. Moreover,
16
the perpetrator made no effort to disguise himself or the readily identifiable gang tattoos
on his face. It could thus be inferred that the perpetrator believed his victims would be
afraid to identify him out of fear for their safety. In the second robbery, he did not even
bother to flee the scene but simply walked away. Before leaving his first victim, he
warned her, "You better not tell the police my name."
Detective Holguin further explained that the time of day and manner in
which the crimes were committed also reflect they were intended to enhance a reputation
of fear and intimidation in the neighborhood. Moreover, one of the robberies involved
the theft of a star pendant, which is a symbol identified with the Hoover Crips. In light of
this evidence, the jury could reasonably infer that the robberies were part and parcel of
the perpetrator's gang participation and were committed with the specific intent to benefit
and promote the gang in furtherance of its criminal enterprise.
In arguing otherwise, appellant highlights the fact he committed the
robberies by himself and notes the lack of evidence that he was wearing gang clothing,
displayed gang signs, or otherwise identified himself as a gang member. These factors
might be significant, were we not required to view the evidence in the light most
favorable to the judgment. The cases appellant cites in support of his position are
inapposite. (See People v. Ochoa, supra, 179 Cal.App.4th at p. 662 [crime not
committed in gang's territory or rival gang's territory, and victim did not know to which
gang defendant belonged]; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1361–1362
[evidence was insufficient to prove minor, who committed crime by himself, was a gang
member]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [minor charged with
carrying a concealed knife while riding a bicycle in neighborhood not controlled by the
gang with which he was affiliated]; People v. Martinez (2004) 116 Cal.App.4th 753[gang registration requirement imposed under § 186.30 following a revocation of
probation and entry of a no contest plea; no expert testimony offered]; People v. Albarran
(2007) 149 Cal.App.4th 214, 225-226 [gang evidence erroneously admitted to prove
motive and intent in prosecution for murder and shooting at an inhabited dwelling].)
17
As our Supreme Court has recently reiterated, '"[e]xpert opinion that
particular criminal conduct benefited a gang' is not only permissible but can be sufficient
to support the Penal Code section 186.22, subdivision (b)(1), gang enhancement.
[Citation.]" (People v. Vang (2011) 52 Cal.4th 1038, 1048; see also Albillar, supra, 51
Cal.4th at p. 63.) The prosecution presented such expert testimony here.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
18
John S. Fisher, Judge
Superior Court County of Los Angeles
______________________________
Jennifer Peabody, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Dana M. Ali,
Toni R. Johns Estaville, Deputy Attorneys General, for Plaintiff and Respondent.
19