People v. Nicholson CA2/1

Filed 8/20/21 P. v. Nicholson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304891
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA478503)
v.
RANDOLPH NICHOLSON,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert C. Vanderet, Judge. Affirmed in part
and reversed in part with directions.
Daniel Milchiker, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Scott A. Taryle, David A.
Voet, and Christopher G. Sanchez, Deputy Attorneys General, for
Plaintiff and Respondent.
____________________________
A jury convicted Randolph Nicholson of vandalism
resulting in damage less than $400 (Pen. Code, § 594, subd.
(b)(2)(A)) and found true a gang allegation under Penal Code
section 186.22, subdivision (d).1 Nicholson contends that the trial
court erred by allowing improper opinion testimony of a police
officer who identified Nicholson as the person in a security
camera video committing the crime or alternatively that the jury
was improperly instructed regarding how to consider lay opinion
testimony. We disagree with Nicholson’s lay opinion testimony
and instructional error contentions.
Nicholson also contends that the gang expert who testified
regarding the predicate offenses required to prove the gang
allegation under section 186.22, subdivision (d) relied on and
testified based on inadmissible hearsay. Based on the Supreme
Court’s recent opinion in People v. Valencia (2021) 11 Cal.5th 818(Valencia), we agree. We will reverse the jury’s true finding on
the gang allegation and remand that issue to the trial court.
BACKGROUND
Los Angeles Police Officer Eli Huacuja noticed graffiti on
the side of a store called Inner City Market during his patrol on
June 6, 2019 that was not there when he patrolled the area on
June 1, 2019. Based on what he saw, Huacuja asked the store
owner for access to footage from the security camera that was
pointed at the graffitied wall. Based on his review of the footage,
Huacuja determined that the graffiti was painted on the morning
1 Further statutory references are to the Penal Code.
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of June 3, 2019. In the video, Huacuja saw an individual he
described as “a tall individual. He’s holding up his pants like
they’re falling. He has distinct hair. In this case he has
dreadlocks type of hair.” Huacuja also noticed tattoos on the
individual’s forearms and that the person had, “like a mustache,
goatee type of mustache.” As the video progresses, the individual
Huacuja described “runs up to the wall [at the Inner City
Market] and begins spray painting the white wall.”
Based on “approximately 20 . . . consensual encounters”
with Nicholson over three years, during which Huacuja observed
Nicholson’s face, physical features and tattoos, observed his
mannerisms—“he always pulls his pants up like his pants are
kind of sagging. And . . . his gait, the way he walks”—Huacuja
identified Nicholson was the person in the video “tagging” the
Inner City Market with graffiti on the morning of June 3, 2019.
The People filed an information charging Nicholson with
vandalism under $400 damage (§ 594, subd. (b)(2)(A)) and alleged
that he had committed the crime “for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members” (§ 186.22, subd. (d)).
At the outset of the trial in January 2020, the trial court
asked the parties whether identity was an issue. The People
responded that “it’s pretty clear that it’s the defendant on the
video.” Nicholson’s attorney stated that she was not “going to
contest that it’s the defendant on the video,” but would not
stipulate to identity. Based on Nicholson’s attorney’s
representation, the trial court noted that identity was an issue in
the case.
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Over Nicholson’s objection, the trial court allowed the
People to ask Officer Huacuja whether he had an opinion about
the identity of the person he saw in the video tagging the Inner
City Market wall on the morning of June 3. The trial court also
allowed testimony regarding how Officer Huacuja had come to
the conclusion that Nicholson was the person in the video, but
limited that testimony to consensual encounters only, and
excluding testimony about any arrests. In making its ruling, the
trial court stated: “[T]he video isn’t that clear. It’s very difficult
for these jurors to identify especially a virtually all white jury
and a Black person to evaluate to make an identification on their
own. The video is just not that clear . . . .” The trial court
instructed the People that “you can have [Officer Huacuja] talk
about how many times he’s had contact with the defendant
before, how long the contacts were, that sort of stuff. I don’t want
any reference to criminal activity.”
Officer Huacuja opined for the jury that Nicholson was the
person in the video.
The People called Los Angeles Police Officer Chad Scott to
testify as their criminal street gang expert witness. To prove
predicate offenses necessary to support gang allegations, Officer
Scott testified about a September 14, 2016 robbery committed by
Chaka Thomas Daniels and a March 24, 2019 felony vandalism
committed by Kyle Williams. Officer Scott’s knowledge of the
offense underlying the Daniels conviction was that he was
“partnered with the primary investigating officer” in the Daniels
matter, that Officer Scott had “reviewed [his partner’s] report [in
the Daniels matter] and he’s discussed the case with” Officer
Scott. Officer Scott knew about the Williams matter because he
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“had personal contact with [Williams] and . . . assisted in the
investigation” of the Williams matter.
The jury found Nicholson guilty of vandalism and found
true the gang allegation. The trial court suspended imposition of
sentence and placed Nicholson on probation for three years after
180 days in county jail.2
Nicholson filed a timely notice of appeal.
DISCUSSION
A. Lay Opinion Testimony & Instruction
Nicholson contends that the trial court abused its
discretion by admitting Officer Huacuja’s lay opinion testimony
that Nicholson was the person in the security camera footage
shown tagging the Inner City Market on June 3, 2019. Nicholson
also contends that if admitting the testimony was not an abuse of
discretion, that the trial court erred when it did not instruct the
jury—even though Nicholson did not request such an
instruction—how to view lay opinion testimony. We disagree
with both of Nicholson’s lay opinion testimony contentions.
Nicholson relies on People v. Mixon (1982) 129 Cal.App.3d
118 (Mixon), People v. Ingle (1986) 178 Cal.App.3d 505, and
People v. Leon (2015) 61 Cal.4th 569 (Leon) to support his
argument that the trial court abused its discretion by admitting
Officer Huacuja’s opinion that Nicholson was the person in the
security camera video spray painting the side of the Inner City
Market.
According to our Supreme Court in Leon, “[a] lay witness
may offer opinion testimony if it is rationally based on the
2The trial court noted on the record that it was sentencing
Nicholson “[i]n accordance with the agreement of the parties.”
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witness’s perception and helpful to a clear understanding of the
witness’s testimony.” (Leon, supra, 61 Cal.4th at p. 601, citing
Evid. Code, § 800.) Leon reaffirmed that the “ ‘identity of a
person is a proper subject of nonexpert opinion . . . .’ ” (Leon, at p.
601.) “Courts of Appeal decision,” the Supreme Court explained,
“have long upheld admission of testimony identifying defendants
in surveillance footage or photographs.” (Ibid.)
Decades earlier, the Mixon court explained that the “two
predicates for the admissibility of lay opinion testimony as to the
identity of persons depicted in surveillance photographs [are]: (1)
that the witness testify from personal knowledge of the
defendant’s appearance at or before the time the photo was
taken; and (2) that the testimony aid the trier of fact in
determining the crucial identity issue.” (Mixon, supra, 129
Cal.App.3d at p. 128.) Mixon explored the second of the two
elements as akin to “helpfulness” as the issue was discussed in
federal cases under the parallel Federal Rule of Evidence. (Id. at
p. 129.) Nicholson does not challenge Officer Huacuja’s personal
knowledge of Nicholson’s appearance, rather Nicholson’s
argument focuses on whether his testimony could be helpful to
the jury.
Nicholson argues that he had not changed his appearance
and the video was clear. All the jury would be required to do to
make the identity decision for themselves, Nicholson argues, is
watch the video and look at Nicholson sitting in the courtroom.
We need not consider whether the jury could have made an
identity decision for itself without Huacuja’s assistance. Rather
we need only decide whether the trial court abused its discretion
when it concluded—expressly—that Huacuja’s opinion testimony
would assist the jury in making that identity decision.
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Whether the video was clear or not, and whether Nicholson
had changed his appearance or not (the record is silent as to this
question), Huacuja testified that he had met and observed
Nicholson approximately 20 times over the course of three years,
that he had observed and was familiar with Nicholson’s face, his
physical features, and his tattoos—things that a jury might be
able to see in a video and compare to a person sitting in the
courtroom. Huacuja testified that he was also familiar, however,
with Nicholson’s mannerisms; that he was familiar with
Nicholson’s habit of pulling up his pants “like his pants are kind
of sagging” and Nicholson’s gait—“the way he walks.” Huacuja
testified that all of Nicholson’s characteristics that he was
familiar with because of having met and observed Nicholson
approximately 20 times over three years were the way that he
quickly identified Nicholson as the person in the security camera
video footage. That is all information that would be helpful to the
jury as they attempted to determine for themselves whether they
believed Nicholson was the person in the video.
The trial court did not abuse its discretion when it
admitted Officer Huacuja’s opinion testimony identifying
Nicholson as the person in the security camera video footage.
Neither can we conclude that the trial court erred by failing
to sua sponte instruct the jury regarding the proper way to
consider lay opinion testimony. Nicholson acknowledges that he
did not request an instruction on lay witness opinion testimony.
Without citing any authority for the proposition that the trial
court had a sua sponte duty to so instruct the jury, Nicholson’s
argument asks us to create that duty.
Where there is expert opinion offered during a trial, the
trial court must instruct regarding how the jury should handle
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expert opinions. (See People v. Carter (2010) 182 Cal.App.4th
522, 532.) That instruction is mandatory—the trial court must
give it whether the defendant requests it. (Ibid.; § 1127b.) There
is no parallel requirement for lay opinions. To be sure, the Penal
Code provision mandating an instruction regarding expert
opinion expressly disclaims that requirement for other opinion
testimony: “No further instruction on the subject of opinion
evidence need be given.” (§ 1127b.)
While it may be the case that a trial court should give an
instruction regarding lay opinions when the defendant requests it
and the evidence supports it, there is no such requirement when
the instruction has not been requested. We will not create that
obligation here.
B. Gang Expert Testimony
The People’s criminal street gang expert witness, Officer
Chad Scott, testified about two predicate offenses necessary
under section 186.22 to support the gang allegation in the
information. Nicholson and the People agree that Officer Scott
had personal knowledge regarding the circumstances of one of
the predicate offenses, a 2019 felony vandalism committed by
Kyle Williams, but not the other, a 2016 robbery committed by
Chaka Thomas Daniels.
On July 1, 2021, the Supreme Court issued its opinion in
Valencia, supra, 11 Cal.5th 818. In that opinion, the Supreme
Court held “that the commission of . . . predicate offenses [under
section 186.22] must be proven by independently admissible
evidence. Under the authority of People v. Sanchez (2016) 63
Cal.4th 665 . . . , such proof may not be established solely by the
testimony of an expert who has no personal knowledge of facts
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otherwise necessary to satisfy the prosecution’s burden.” (Id. at
p. ___.)
Because Valencia was decided after the parties’ principal
briefs had been filed, we requested supplemental briefing
regarding the effect of Valencia on this appeal. The People
acknowledged Officer Scott’s testimony regarding the Daniels
predicate offense that his knowledge was based on having
reviewed his partner’s police report and discussing the case with
his partner, who had investigated the crime. But the People
argued that “Officer Scott’s testimony regarding the predicate
offense by Daniels was independently proven by admissible
evidence (the certified court records), and he had personal
knowledge regarding Daniels’[s] gang membership.”
Officer Scott’s testimony regarding how he gained an
understanding of Daniels’s gang membership places Scott’s
testimony about the Daniels predicate offense squarely within
the range of evidence Valencia prohibits. In Valencia, the gang
expert witness’s testimony about predicate offenses “came from
conversations with other officers and a review of police reports.”
(Valencia, supra, 11 Cal.5th at p. ___.) That type of information,
Valencia explained, amounts to “unsubstantiated assertions of
fact” that an expert is trying to “place before the jury.” (Id. at p.
____.) “Experts with no personal knowledge of case-specific facts,
or who do not rely on other admissible evidence establishing
those facts, are simply ‘regurgitat[ing] information from another
source.’ ” (Id. at p. ___, citing People v. Veamatahau (2020) 9
Cal.5th 16, 34.) “Without independent admissible evidence of the
particulars of the predicate offenses, the expert’s hearsay
testimony cannot be used to supply them. In the absence of any
additional foundation, the facts of an individual case are not the
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kind of general information on which experts can be said to
agree.” (Valencia, at p. ____.)
The People argue that even if the evidence of the Daniels
conviction was foreclosed by Valencia, the jury’s conclusion that
Nicholson committed vandalism would suffice as the second
predicate for purposes of section 186.22. Nicholson counters,
however, that only felony vandalism suffices as a gang predicate
offense. (See § 186.22, subd. (e)(20).) Nicholson points out that
he was charged with misdemeanor vandalism, which will not
support the gang enhancement.
Nicholson is correct.
Vandalism under $400 is a misdemeanor; vandalism over
$400 is a felony. (See Robert L. v. Superior Court (2003) 30
Cal.4th 894, 906.) Even misdemeanor vandalism, however, may
become a felony for sentencing purposes under section 186.22.
(People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444.) It is
possible, then, that Nicholson’s conviction—if upheld—could
eventually serve as a predicate offense for a gang allegation in
some subsequent case. But because it is a true finding on the
gang allegation that turns what would be a misdemeanor into a
felony, it cannot support the gang allegation in this case. The
felony did not exist before the jury found the gang allegation true.
Consequently, the People had proven only one predicate offense
under section 186.22.
Consistent with the Supreme Court’s opinion in Valencia,
we reverse the jury’s true finding on the gang allegation and
remand to the trial court for retrial of the gang allegation if the
People elect to retry that issue or for resentencing if the People
choose not to retry the gang allegation. (Valencia, supra, 11
10
Cal.5th at p. ___, fn. 7; People v. Ulloa (2009) 175 Cal.App.4th
405, 413.)
DISPOSITION
The judgment of conviction is affirmed. The jury’s true
finding on the gang allegation is reversed. On remand, the
People may retry the gang allegation. If the People elect not to
retry the gang allegation, the trial court will resentence
Nicholson consistent with this opinion.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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