People v. Williams CA2/7

Filed 9/23/14 P. v. Williams CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B245238
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA374034)
v.
DONTRELL WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I.
Sandoval, Judge. Affirmed as modified.
Leonard J. Klaif, 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, Steven D. Matthews and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
INTRODUCTION
Defendant Dontrell Williams appeals from a judgment of conviction entered after
a jury trial. By information filed December 21, 2010 the People charged Williams and
his mother, Dunya Wade,1 with making a criminal threat (Pen. Code, § 422;2 counts 1
(Williams) & 2 (Wade)), assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4), and
assault with a semiautomatic firearm (§ 245, subd. (b); count 7). The People also charged
Williams with possession of a controlled substance, cocaine base (Health & Saf. Code,
§ 11350, subd. (a); count 5), and a third count of assault with a firearm (§ 245,
subd. (a)(2); count 6). The information further alleged as to count 3 that Williams
personally inflicted great bodily injury on his victim (§ 12022.7, subd. (a)) and as to
counts 4 and 6 that Williams personally used a firearm in the commission of the crimes
(§ 12022.5, subd. (a)). Finally, as to counts 1, 2, 3, 4, and 7, the information alleged the
crimes were committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)).
The jury found Williams guilty on count 1 of making a criminal threat, on counts 4
and 6 of assault with a firearm, and on count 5 of possession of a controlled substance.
As to count 6, the jury found true the allegation Williams personally used a firearm in the
commission of the crime. The jury deadlocked on the remaining counts and allegations.
The trial court declared a mistrial as to those counts and allegations, and essentially
dismissed them.3
1 Wade is not a party to this appeal.
2 Undesignated statutory references are to the Penal Code.
3 The court stated, “I think it’s within my discretion to dismiss those counts. I will
not permit the D.A. to retry them.” When asked whether the court was dismissing the
special allegations, the court stated, “I don’t know—by operation of law they must be”
dismissed.
2
The trial court selected count 4, assault with a firearm, as the principal term and
imposed the middle term of three years. The court stayed the sentence on count 1
pursuant to section 654, imposed a concurrent sentence of the low term of one year and
four months on count 5, and imposed a consecutive sentence of one year (one-third the
middle term of three years) for the second assault with a firearm, count 6. The court
imposed an additional lower term of three years on count 4 for the enhancement under
section 12022.5,4 for a total term of seven years in state prison.
Williams contends that the trial court committed several evidentiary and
sentencing errors. We agree with his claim of sentencing error, modify the sentence
accordingly, and otherwise affirm.
FACTUAL BACKGROUND
A. Count 6—Assault With a Firearm
At 2:00 a.m. on May 23, 2010, Gajdron Peppers went to see his girlfriend, who
was Williams’ cousin, at Wade’s apartment on Tacana Street in Los Angeles. Peppers
entered a bedroom and saw Williams having intercourse with a woman. He said he was
sorry, shut the door, and went outside to the parking lot.
Williams came out about 20 minutes later. Peppers walked up to him to shake his
hand. Williams took out a gun and struck Peppers in the eye with the butt of the gun.
Williams continued to hit Peppers in the face and head while Peppers kept telling him to
stop. Williams said he was going to mess Peppers up.
Wade came out and stopped Williams. But then she slapped Peppers on the head,
and told him she did not like him and he should not come to her apartment anymore.
4 As we discuss, the trial court erred in imposing enhancements on count 4 rather
than count 6.
3
Peppers walked home. His eyes were swollen shut. He called 911 three times.
An ambulance arrived, and the paramedics took him to a hospital, where he received
treatment.
Sharyn Nolan lived in the same apartment building as Williams and Wade. When
she arrived home at about 2:00 a.m. on May 23, 2010, she saw Williams and Peppers
fighting. Neither one had a gun. When the fight ended, Peppers walked away. Peppers
“kept hollering at” Williams that Williams owed him money.
B. Counts 1 to 4, 7—Making a Criminal Threat, Assault With a Firearm,
Assault With a Semiautomatic Firearm
Bob and Mary Ampofo lived with their five children in the same apartment
building as Williams and Wade. On the afternoon of July 23, 2010 Mary Ampofo and
four of the children were bringing home groceries. After Mary put her groceries down in
her apartment she went outside to see why the children had not come into the apartment.
They told her the police had come into the courtyard and asked if they saw anyone
running through.
Los Angeles Police Officers Robert Smith and Brent Williams went to the Tacana
Street apartment building in response to a call regarding a burglary suspect. They saw
the suspect with a group of people. When he saw the officers, he ran into the courtyard
of the building. The officers went into the courtyard and asked the children if they saw
anyone run through the courtyard. Two of the children pointed to Wade’s apartment.
The officers went upstairs to Wade’s apartment and had the children verify that it
was the right one. The officers knocked on the door and Sasha Freeman, who was
holding a baby, answered. The officers said they were looking for suspects who had run
from them and the officers believed they had run into the apartment. Freeman said she
was babysitting and was not allowed to let anyone into the apartment. The officers asked
if there was anyone in the apartment with her, and she said she was the only one there.
The officers asked if they could come inside and look around, and she again refused to let
them in.
4
The officers requested additional units. Freeman called Wade to tell her what was
going on, and Wade told Freeman not to let anyone inside the apartment. Officer Smith
told Freeman to tell Wade that they had a legal right to enter the apartment and that, if
necessary, they would remove the door to gain access. Freeman still refused to let them
in.
As the officers were preparing to remove the door, Gregory Thompson opened the
door and let them in. Williams and Gary Jetter were also in the apartment. Williams told
the officers that his name was “Isaiah Wheeler.” Officer Smith knew Isaiah Wheeler and
that he was a member of the Black P Stone gang.5 Thompson and Jetter were also
members of the Black P Stone gang. The officers handcuffed the three men and detained
them in front of the apartment building. Wade then arrived at the building and began
yelling at the officers. She said the apartment was hers, and “Isaiah Wheeler” and
Thompson were her sons. The officers did not locate the burglary suspect and eventually
left.
An hour later, Wade and two or three other women went to Mary Ampofo’s
apartment. Wade asked why Mary had allowed her children to talk to the police. Wade
was angry, and she screamed and cursed at Mary. She warned that if Mary’s children
spoke with the police again, she would have her people come after Mary’s family. Wade
told Mary that her family was in danger, and she told Mary’s oldest son that his life was
especially in danger. Mary recalled Wade saying, “you don’t know where I’m from, I’m
BPS fucking bitch. If you talk to the police about me again, I will let my people come
after you.” Mary and her children were afraid, and the children were crying. Mary called
her husband and told him to be careful in the parking lot when he came home.
5 A gang expert, Officer Eduardo Garcia, testified regarding gang activity in general
and the Black P Stone gang in particular. He noted that the Black P Stone gang was
sometimes identified as “BPS.” He also stated that the Tacana Street apartment building
is within Black P Stone territory. He identified Williams as a member of the Black P
Stone gang.
5
Bob Ampofo came home at about 8:00 p.m., and Mary told him what had
happened. The two of them went to Wade’s apartment and knocked on the door. Wade
came to the door. Mary asked Wade, “Please let it go. We don’t have nothing against
you guys. . . . Trust me the kids are scared and everything and we don’t have nothing
against you. All of us live here.” Wade responded that Mary’s children should not have
talked to the police and that people would come after her and her children.
Wade yelled at Mary, “bitch motherfucker, why did you bring your husband
here?” Mary explained that because Wade had said her whole family was in danger, she
came with her husband to apologize. Wade then turned to Bob and asked why he was
there. Bob responded, “[Y]ou can’t ask me that. They are my children and they are my
family so I have to come with my wife and apologize to you because you said the whole
family.”
Wade came out and began to push Bob. Mary told her, “Neighbor, we are not
here to fight.” Mary then told Bob they should go. Wade slapped Bob. Another woman
came out of the apartment and began hitting Bob. Bob fell back and his hand hit a
window, breaking it. He landed face down on the ground, and Wade began kicking him.
She then jumped on top of him and hit him with her fist. Bob reached up and grabbed her
hair.
Williams came out of the apartment and hit Bob with a chair. He stomped on
Bob’s head and back. Two other men came over and joined in the attack. Williams hit
Bob with a cooking pot. Bob heard someone yelling, “Kill that motherfucker.” Mary
was yelling “stop” and “help.” Bob told her to call the police. She pulled her cell phone
out of her pocket and called 911. The phone fell to the ground. Bob heard the operator
on the line. Bob told the operator that “they” were killing him and gave her the address.
Williams ran downstairs. Wade and the others began dragging Bob down the
stairs. Williams returned with a gun. He pointed it at Bob’s head and said he was going
to kill him. Wade then told Williams to leave because Mary and Bob had called the
police. Williams ran away. The other two men then left.
6
Los Angeles Police Officers Joseph Getherall and Ulises Hernandez arrived at
about 10:10 p.m. They saw Wade standing over Bob, screaming, “motherfucker you got
what you deserved.” Bob was lying on the ground. He had lacerations on his body, his
eye was swollen, he was bleeding from his nose and mouth, and he was having difficulty
getting up. Officer Hernandez called for an ambulance. Paramedics arrived and took
Bob to the hospital.
Officer Getherall observed that Mary “appeared to be distraught and in fear.”
Mary “had tears in her eyes. She was shaky. She was trembling. What anybody would
feel like when being threatened with their life.” Officer Getherall spoke to Mary, who
said that Wade had told her she “fucked up by having her children contact the police.
[Wade] advised her that in the jungles you don’t do that, you don’t talk to the police in
the jungles.”6 Mary also told Officer Getherall that Wade had said to her, “I don’t need
to tell you where my family is from . . . , but if you don’t know it’s BPS bitch.”
Mary’s five children were with her during the interview. According to Officer
Getherall, her “older son appeared to be upset, and the [other] four children, I believe,
were crying and distraught.” Officer Getherall “attempted to console them and told them
that it would be okay, I’m going to make sure I put these people in jail.”
After Officer Getherall spoke to Mary, the officers took Wade into custody. Wade
was upset and irate, but she did not appear to have any injuries.
Bob was treated at the hospital and released a few hours later. The Ampofos spent
the night at a motel. They returned to their apartment the next day, packed their things,
and left. They did not return to the apartment.
Wade’s version of the events of July 23, 2010 was different. Wade testified that
her babysitter called to say that the police were banging on the door and demanding that
6 “The jungles” is in the Lower Baldwin Village area of Los Angeles. It is located
between Exposition Boulevard on the north and Stocker Street on the south, La Cienega
Boulevard on the west and La Brea Avenue on the east. It consists mainly of apartment
buildings. (See Jackson v. Harrington (C.D.Cal. 2011) 2011 WL 7143189 at p. 5;
Jordan v. Neotti (C.D.Cal. 2011) 2011 WL 1532059 at p. 4.)
7
she open it. Wade asked if they had a warrant. The babysitter said no. Wade said she
was on her way home.
When Wade arrived home, she tried to go upstairs to her apartment, but an officer
told her “to get [her] ass back down the stairs.” She went downstairs and waited. The
officers brought Williams downstairs. Wade kept trying to find out what was going on.
Eventually, the officers released Williams. Wade spoke to a sergeant who apologized for
the officers’ conduct and explained that the officers had been looking for suspects in an
earlier incident but Williams was not a suspect. When Wade went upstairs to her
apartment, she discovered that it “was kind of tore up,” with furniture overturned,
drawers opened, and items strewn about.
Wade asked Williams about what had happened, and he said he was in bed. Wade
was not sure if he was telling the truth, so she went to the Ampofos’ apartment to ask
Mary if she knew what happened. Mary said that the police had gone to Wade’s
apartment and searched it. Mary said she was sorry, her kids had pointed out Wade’s
apartment, and it would not happen again. Wade told her it was okay, they were
neighbors and they had to get along. Wade then went back to her apartment.
Wade testified that two or three hours later, there was a knock on her door. Mary
and Bob Ampofo were at the door. Mary said they needed to talk, they were neighbors,
and they needed to get along. Wade agreed. As Mary started to introduce Bob as her
husband, Bob shoved her out of the way and said to Wade, “You, you bitch, you bitch,
you don’t talk to my wife.” Wade was caught off guard and began backing up into her
apartment. Bob pursued her, pointing at her and telling her not to talk to his wife. Bob
hit Wade on the side of the face and grabbed her hair, and she fell to the floor. Bob
continued to hit her, and he dragged her out of the apartment. Wade yelled for her son to
call the police. She heard Mary tell Bob, “We didn’t come here for this.”
Bob suddenly released his grip on Wade, and she saw Williams fighting with him.
Wade got up, ran back into her apartment, and locked the door. When she looked
outside, she saw Bob walking downstairs, followed by Mary and Williams. Wade went
outside and started to go downstairs to see if Williams was alright. Bob started back up
8
the stairs, saying, “Fuck you, bitch. I’m going to get you. I’ll be back. I got guns. I’ll
do this to you.” Wade went back up the stairs. Wade did not observe any other men
involved in the fight, did not see Williams hit Bob with a chair or a cooking pot, and
never saw William possess or threaten to shoot Bob with a gun.
According to Wade, once the police arrived, Bob lay down on the ground “like if
he was the victim or something.” She went downstairs and told the police that Bob
attacked her. An officer had Bob stand up and placed him in handcuffs. Mary
interrupted and said that was not what happened. Then the officers arrested Wade.
Wade was released on bail the following morning. She returned to the police
station two days later and told them she was the one who had been assaulted, and it was
her son who had called 911. The officer continued to ask her about Williams and
whether he was the one who had assaulted Bob.
Other witnesses corroborated Wade’s version. Stephany Brown testified that on
the evening of July 23, 2010, she was in Wade’s apartment with Wade, Williams, and
Wade’s 10-year-old son, D’Won McCarthy. Mary and Bob came to the door. As Mary
introduced Bob, he pushed her aside “and then he got very derogatory and very
boisterous.” He called them “bitches” and “hoes,” and he stuck his finger in Wade’s
face. Wade started backing up, and Bob slapped her. Wade tripped and fell, and Bob
kept hitting her and pulling her hair. Wade yelled for someone to call the police.7 Brown
then observed Bob drag Wade out the door. Brown and Mary stepped in to try to get Bob
off of Wade. Mary kept saying, “We did not come up here for this, what are you doing.
Let her go.” Bob told Mary to shut up and tried to push her and Brown away. Williams
had been in the kitchen cooking. He came out and tried to push Bob off of Wade. When
that did not work, he fought with Bob. After two or three minutes, Williams and Bob
“just left.” Bob went downstairs and “just laid down in the middle of the compound.”
7 D’Won testified that he called 911 twice because Bob was going to hit his mother
and his mother told him to call the police.
9
Fourteen-year-old B.M. lived in the same apartment building. She testified she
heard a lot of noise that evening and went outside. She saw Bob on top of Wade, pulling
her hair and punching her, and she heard Wade calling for help. Brown tried to pull Bob
off of Wade but was unable to do so. After that, Williams came out and tried to pull Bob
off of Wade, and the two men began fighting. B.M. did not see any other men join in the
fight, she did not see Williams hit Bob with a chair or cooking pot, and she did not see
Williams with a gun. B.M. testified that after the fight Williams, Bob, and Mary went
downstairs. Bob sat on the bottom stair and kept saying he was going to come back.
Mary put her hand over his mouth, and he kicked her. Then the police arrived.
Ashley Brady, who was talking with a friend in the courtyard of the Tacana Street
apartment building on July 23, 2010, saw Wade go downstairs to the Ampofos’
apartment and overheard Wade and Mary speak cordially and in conversational tones.
Brady did not hear Wade make any threats.
C. Count 5—Possession of a Controlled Substance
Officers Getherall and Hernandez returned to Wade’s apartment a couple of hours
later because they believed additional suspects might be there. Williams was in the
apartment with four other people. The officers asked them for identification. Williams
did not have any but identified himself as “Isaiah Wheeler.” Officer Getherall knew he
was lying, because he had met Williams before and knew Williams was not Isaiah
Wheeler. Officer Getherall also recognized Williams’ tattoo: “a Crip Killer tattoo on his
back which is a CK with the C crossed out.”
The officers arrested Williams and took him to the police station for booking.
There, Williams removed a plastic bindle containing rock cocaine from his anus and told
Officer Hernandez, “Fuck it, you got me already.”
10
DISCUSSION
A. Officer Getherall’s Statements Suggesting Williams Was Guilty
Williams contends that Officer Getherall’s “repeated expression of his opinion that
[Williams] was guilty” deprived him of his constitutional rights to a jury trial and a fair
trial. The “repeated expression” to which Williams refers consists of two statements.
Officer Getherall testified that he “attempted to console” Mary’s children “and told them
that it would be okay, I’m going to make sure I put these people in jail.” Officer
Getherall also testified that Mary “appeared to be distraught and in fear,” and “had tears
in her eyes. She was shaky. She was trembling. What anyone would feel like when
being threatened with their life.”
Counsel for Williams did not object to the statement about putting “these people in
jail.” Therefore, to the extent Officer Getherall’s statement to Mary’s children that he
was “going to make sure I put these people in jail” was an expression of his opinion of
Williams’ guilt, Williams’ failure to object to the statement forfeited his argument that
the trial court erred by admitting it. (See Evid. Code, § 353; People v. Edwards (2013)
57 Cal. 4th 658, 709 [failure to object to witness’ opinion that the victim’s injuries were
painful forfeited contention the testimony was irrelevant “because the jury could draw its
own conclusions”]; People v. Hamilton (2009) 45 Cal. 4th 863, 917 [failure to object to
“improper opinion of a lay witness . . . forfeited the claim for appeal”].)
Counsel for Williams did object to the statement about Mary feeling threatened
with her life and moved to strike it. The trial court overruled the objection, stating, “He’s
a seven year veteran of the police department. I am sure he’s investigated many
incidents. I’ll allow him on lay opinion to give that testimony.” We review the trial
court’s ruling on the admission of lay opinion testimony for abuse of discretion. (People
v. Virgil (2011) 51 Cal. 4th 1210, 1254.)
“‘A witness may not express an opinion on a defendant’s guilt.’. . . [Citations.]”
(People v. Vang (2011) 52 Cal. 4th 1038, 1048.) Such “‘opinions on guilt or innocence
are inadmissible because they are of no assistance to the trier of fact. To put it another
11
way, the trier of fact is as competent as the witness to weigh the evidence and draw a
conclusion on the issue of guilt.’ [Citation.]” (People v. Coffman and Marlow (2004) 34
Cal. 4th 1, 77.)
A lay witness may give opinion testimony only if it is “(a) Rationally based on the
perception of the witness; and [¶] (b) Helpful to a clear understanding of his
testimony.” (Evid. Code, § 800.) “‘“[A] lay witness may testify in the form of an
opinion only when he cannot adequately describe his observations without using opinion
wording.”’ [Citation.]” (People v. Callahan (1999) 74 Cal. App. 4th 356, 380; accord,
People v. DeHoyos (2013) 57 Cal. 4th 79, 130.) This may occur “‘“where the concrete
observations on which the opinion is based cannot otherwise be conveyed,”’” or where “a
witness’s impression of what he or she observes regarding the appearance and demeanor
of another rests on ‘subtle or complex interactions’ between them . . . .” (DeHoyos,
supra, at p. 130.) “‘Where the witness can adequately describe his observations, his
opinion or conclusion is inadmissible because it is not helpful to a clear understanding of
his testimony.’ [Citations.]” (Callahan, supra, at p. 380.)
It is not clear that Officer Getherall’s statement about Mary looking like someone
who was fearing for her life was an opinion of Williams’ guilt, or that the jurors would
have understood it as such a statement. There was no evidence that Williams threatened
Mary, and he was not charged with making a criminal threat against her. It was his
mother, Wade, who threatened Mary. The statement may have suggested that Wade was
guilty of a crime, but it did not suggest Williams was. Nevertheless, Officer Getherall’s
statement was inadmissible, the trial court abused its discretion in overruling the
objection, and the court should have granted Williams’ motion to strike it. Officer
Getherall was able to describe Mary’s demeanor and appearance, and to convey his
“‘“concrete observations”’” (People v. DeHoyos, supra, 57 Cal.4th at p. 130) about her
appearance without giving his opinion that she felt like someone who had just had her life
threatened. Nor did Officer Gethrall’s impression of Mary rest on “‘subtle or complex
interactions’” (ibid.) between the two of them. She was a distraught witness and he was
an officer responding to the scene and making observations of what he saw. His
12
statement that Mary appeared to be feeling “[w]hat anyone would feel like when being
threatened with their life” was not necessary to a clear understanding of his testimony.
Any error in admitting the two statements by Officer Getherall, however, was
harmless. The erroneous admission of evidence requires reversal of a judgment only
where it is reasonably probable the defendant would have received a more favorable
result had the evidence been excluded. (People v. Carter (2005) 36 Cal. 4th 1114, 1152;
People v. Earp (1999) 20 Cal. 4th 826, 878; see People v. Coffman and Marlow, supra, 34
Cal.4th at p. 76 [“claim . . . of erroneous admission of evidence [is] subject to the
standard of review for claims of state law” under People v. Watson (1956) 46 Cal. 2d 818,
836].) Neither of Officer Getherall’s statements mentioned Williams by name, explicitly
expressed an opinion as to Williams’ guilt, nor suggested that Officer Getherall had
access to information not introduced at trial that established Williams’ guilt. The fact
that the jury convicted Williams on only some of the counts against him and found true
only some of the special allegations further shows that the statements did not lead the
jury to convict him. It is not reasonably probable the result would have been any
different had the trial court excluded the lay opinion portion of the officer’s testimony.
(See People v. Bradley (2012) 208 Cal. App. 4th 64, 84 [“[e]ven if there was error in
admitting lay testimony, however, the error was harmless because it is not reasonably
probable the jury would have reached a result more favorable to appellants had the error
not occurred”]; see, e.g., People v. Rogers (2009) 46 Cal. 4th 1136, 1167 [not reasonably
probable defendant would have received a more favorable result absent witness’ “brief
mention that defendant broke into [the victim’s] car to leave a note”]; People v. Stewart
(2004) 33 Cal. 4th 425, 494 [prosecution’s case did not focus on brief references to an
alleged plot to kill witness].)
Finally, contrary to Williams’ assertion, any error from the admission of Officer
Getherall’s testimony did not deprive Williams of his constitutional rights “because this
case falls within the general rule that ‘violations of state evidentiary rules do not rise to
the level of federal constitutional error.’ [Citation.]” (People v. DeHoyos, supra, 57
Cal.4th at p. 120; see People v. Ghebretensae (2013) 222 Cal. App. 4th 741, 751 [“[o]ur
13
Supreme Court has rejected the attempt to transform evidentiary claims into errors of
constitutional proportion”].)
B. Evidence of Prior Misconduct
The gang expert, Officer Eduardo Garcia, testified that Williams had a tattoo of “a
teardrop under his left eye,” which is “commonly used when you’ve done prison time.”
He also testified that Williams had a tattoo of a “CK on his back with the C crossed out.
The CK that stands for Crip Killer. . . . Usually someone who puts a CK on there has
earned it. It means they’ve done a drive-by or they’ve killed a rival gang member or
they’ve shot a rival gang member.” Williams argues that the trial court erred by
admitting this evidence that Williams had served a prior prison term and had killed
someone, and that by admitting this evidence in violation of Evidence Code section 1101,
subdivision (a), the trial court deprived Williams of a fair trial.
Counsel for Williams did not object to any of this testimony. As Williams
concedes, the failure to object to the admission of this evidence generally forfeits the
issue on appeal. (See People v. Hajek and Vo (2014) 58 Cal. 4th 1144, 1208 [contention
that “bad character evidence . . . was admitted in violation of Evidence Code section
1101” was forfeited by failing to object in trial court]; People v. Maciel (2013) 57 Cal. 4th
482, 531 [“[b]ecause defendant did not object to the admission of the testimony on any
ground,” his claim of error in its admission was forfeited].)
The failure to object is excused where an “objection would have been futile and
any request for admonition would have been inadequate to cure the harm. ‘A defendant
claiming that one of these exceptions [to the forfeiture rule] applies must find support for
his or her claim in the record. [Citation.] The ritual incantation that an exception applies
is not enough.’ [Citation.]” (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1239.)
There is no indication in the record that an objection would have been futile. (See People
v. Pearson (2013) 56 Cal. 4th 393, 425 [forfeiture rule applied where “[n]othing in the
record suggests any objections or request for admonition would have been futile”].)
Moreover, an admonition would have cured any harm. Officer Garcia explained the
14
general or common meaning of Williams’ gang tattoos. An objection and admonition to
the jury could have limited the jurors’ use of this evidence to the gang allegation and
made it clear that the jurors could not speculate about whether Williams had personally
served time in prison and killed someone. Therefore, Williams has forfeited his
challenge to the admissibility of Officer Garcia’s testimony. (Cf. People v. Clark (2011)
52 Cal. 4th 856, 942 [“[b]ecause defendant failed to request a limiting instruction below,
he has forfeited his claim that it was error for the court not to so instruct”]; People v.
Davis (2005) 36 Cal. 4th 510, 550 [defendant, by failing to request a limiting instruction
that the jury could not consider out-of-court statements for their truth, “on appeal . . . may
not complain of the lack of one”]; People v. Lewis (2001) 25 Cal. 4th 610, 638 [by failing
to request an instruction that uncharged crimes evidence was admissible “for the limited
purpose of showing intent,” defendant did not preserve the issue for appeal].)
In any event, “[s]ubdivision (a) of [Evidence Code] section 1101 prohibits
admission of evidence of a person’s character, including evidence of character in the
form of specific instances of uncharged misconduct, to prove the conduct of that person
on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies,
however, that this rule does not prohibit admission of evidence of uncharged misconduct
when such evidence is relevant to establish some fact other than the person’s character or
disposition.” (People v. Ewoldt (1994) 7 Cal. 4th 380, 393, fn. omitted; see People v.
Spector (2011) 194 Cal. App. 4th 1335, 1373.) Williams concedes that “a prosecution
gang expert may testify to a defendant’s tattoos which are linked to gang membership,”
and that “Officer Garcia’s testimony regarding [Williams’] tattoos was admissible to
show [Williams’] gang membership.” (See People v. Valdez (2012) 55 Cal. 4th 82, 130-
131 [evidence of gang tattoos is admissible under subdivision (b) of Evidence Code
section 1101 where the charged crimes are gang-related].) Williams argues only that
Officer Garcia went “too far” when he testified that Williams’ tattoos signified that he
had done prison time and killed a rival gang member.
Any error in admitting the portion of Officer Garcia’s testimony that Williams
asserts went “too far” under Evidence Code section 1101, subdivision (b), by describing
15
the meaning of Williams’ tattoos, however, was harmless. Williams argues that this was
a “close case,” a credibility contest between the Ampofos and Peppers, on one side, and
Wade and the defense witnesses, on the other side, and that Officer Getherall’s statement
helped “tipped the scale against [Williams] and led to the guilty verdicts.” The record
does not support Williams’ argument. The jury convicted Williams on only some of the
counts against him and found true only some of the special allegations. The verdict
shows that the jury did not convict Williams merely because Officer Garcia testified that
Williams had tattoos signifying he had been in prison and was a Crip Killer. The jury
may have had some difficulty with the details of the incidents—the number of attacks on
Bob and whether Williams used a firearm in each of the attacks—but the verdict shows
that the jury “‘considered the evidence [as to each count and special allegation]
dispassionately in reaching its verdict.’ [Citation.]” (People v. Chatman (2006) 38
Cal. 4th 344, 370; see Park v. California (9th Cir. 2000) 202 F.3d 1146, 1150 [fact that
the jury did not convict defendant on all counts is “strong evidence that he was not
prejudiced by the admission of evidence”].) Moreover, the case was not that close. The
police officers corroborated the Ampofos’ testimony by testifying about their
observations that Bob had injuries and Wade did not. It is not reasonably probable the
jury would have acquitted Williams on all counts had Williams objected to the tattoo
evidence and the trial court excluded it. (See People v. Welch (1999) 20 Cal. 4th 701,
749-750 [standard for whether evidence admitted in violation of Evidence Code section
1101 is prejudicial is whether it is “reasonably probable that a result more favorable to
defendant would have resulted absent admission of this evidence”]; People v. Lopez
(2011) 198 Cal. App. 4th 698, 716 [“error in admitting Evid[ence] Code[ section] 1101
evidence [is] tested by [the] People v. Watson[, supra,] 46 Cal.2d [at p.] 836 . . . harmless
error standard”].)8
8 As we did with the admission of Officer Getherall’s statements, we conclude that
the admission of Officer Garcia’s statements did “‘not rise to the level of federal
constitutional error.’ [Citation.]” (People v. DeHoyos, supra, 57 Cal.4th at p. 120.) Nor
do we find cumulative error. As noted, the verdict shows that the jurors made a careful
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C. Sentencing Error
Williams contends, and the People agree, that the trial court erred in designating
count 4 as the principal term and that Williams is entitled to an additional four days of
presentence custody credit. We agree as well.
The trial court selected count 4, assault with a firearm, as the principal term and
imposed the three year sentence plus three years for the firearm use enhancement under
section 12022.5. The jury, however, found true the firearm use enhancements as to
assault with a firearm on count 6, also assault with a firearm, not count 4. Thus, the trial
court should have designated count 6 and its enhancements, rather than count 4, as the
principal term.9 We will modify the judgment to correct this error, which has no effect
on the length of Williams’ sentence. (See People v. Sanders (2012) 55 Cal. 4th 731, 743,
fn. 13 [“the appellate court can correct a legal error resulting in an unauthorized sentence
. . . at any time”]; People v. Menius (1994) 25 Cal. App. 4th 1290, 1294-1295 [appellate
court can correct unauthorized sentence, such as a sentence where the trial court has
applied an enhancement to the wrong count].) Remand is not necessary because both
count 4 and count 6 are the same: assault with a firearm.
In addition, the trial court awarded Williams 491 days of presentence custody
credit, consisting of 431 days of actual credit and 60 days of conduct credit. Under
section 2933.1, subdivision (a), Williams was entitled to 15 percent of his actual credit as
conduct credit. Fifteen percent of 431 is 64, not 60. He thus is entitled to an additional
analysis of the evidence and were not swayed the small portion of any objectionable
testimony they may have heard. (See People v. Trinh (2014) 59 Cal. 4th 216, 253
[“[c]onsistent with our review of defendant’s individual claims, we find no cumulative
error occurred”]; People v. Manibusan (2013) 58 Cal. 4th 40, 100 [“[t]o the extent there
are a few instances in which we have found error or assumed its existence, no prejudice
resulted”].)
9 Under section 1170.1, subdivision (a), “[t]he principal term shall consist of the
greatest term . . . imposed by the court for any of the crimes, including any term imposed
for applicable specific enhancements. . . .” (People v. Beard (2012) 207 Cal. App. 4th
936, 941, fn. 3.)
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four days of conduct credit, and we will modify the judgment to correct this error. (See
§ 1260; People v. Chilelli (2014) 225 Cal. App. 4th 581, 591.)
DISPOSITION
The judgment is modified to designate count 6 as the principal term and to impose
three years on that term, plus one year for each of the two enhancements as to that term,
and to impose a consecutive one year sentence on count 4. The judgment is further
modified to provide an additional four days of conduct credit, or 64 days, for a total
presentence custody credit of 495 days. As so modified, the judgment is affirmed. The
trial court is directed to prepare a corrected abstract of judgment and to forward a copy to
the Department of Corrections and Rehabilitation.
SEGAL, J.*
We concur:
WOODS, Acting P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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