Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Nos. MA044945-01, MA044945-02, MA044945-03, Charles A. Chung, Judge.
Ellise R. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant Tiffany Danielle Adams.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Trayvon D. Hales.
Robert Bryzman, under appointment by the Court of Appeal, for Defendant and Appellant Davonn Childs.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Tiffany Danielle Adams, Davonn Maurice Childs and Trayvon Deshon Hales appeal a judgment after their conviction of first degree residential burglary. (Pen. Code, § 459.) Adams and Hales also were convicted of receiving stolen property. (§ 496, subd. (a).) The jury found that all of these offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang, with specific intent to promote, further and assist in criminal conduct by a gang member. (§ 186.22, subd. (b)(1).)
All statutory references are to the Penal Code unless otherwise stated.
We conclude, among other things, that: 1) sufficient evidence supports the gang enhancements, 2) the source material relied on by the gang expert was not unreliable hearsay, 3) the gang expert's testimony did not contravene appellants' rights under Crawford v.Washington (2004) 541 U.S. 36, 4) Adams has not shown that the trial court committed instructional error, but 5) the court erred by imposing a one-year prior prison term enhancement (§ 667.5, subd. (b)) on Hales's sentence. We strike that enhancement. In all other respects, we affirm.
FACTS
Hales and Childs were members of the 4-Trey Gangster Crips, a criminal street gang. Adams was Hales's girlfriend. She and Hales lived together.
On the morning of February 23, 2009, Jacinta Valeri was at home when she heard someone ring her doorbell and knock on the door. When she looked out her window, she saw a man matching Childs's description walking away from her front door towards a car. He got into the backseat of that vehicle, began talking on a cell phone, and was looking directly at her house. Valeri thought his conduct was "suspicious." He did not leave a business card and he had nothing in his hands when he had approached her home. She called the police.
Sheriff's Deputy Jeff Bishop and his partner were in their patrol car in the neighborhood. Bishop saw a parked car with a license plate covered "with a paper plate." Adams was in the driver's seat; Childs was in the backseat. As Bishop drove by, he noticed that Adams and Childs had "surprised and shocked" expressions on their faces. The car was parked in front of Evelyn Sandberg's house. She was not at home, and the side gate of her residence was "wide open."
When Adams saw the deputies, she made a cell phone call to Hales. Bishop approached her car and grabbed the cell phone because he believed she was "communicating" with "another suspect." Bishop's partner went to the rear of Sandberg's house and saw that the rear door "had been pried open."
Sheriff's Deputy Christian Scott received a call about the Sandberg burglary and was informed that "one of the suspects had fled westbound from the location." Tamala Dietrich's home was two-tenths of a mile from the Sandberg residence. Dietrich saw Hales go into a shed on her property. He appeared to be hiding. Scott arrived at Dietrich's home, he detained and searched Hales and found his cell phone. Adams's call to Hales was reflected on that phone's "call history."
Adams told sheriff's deputies that she was selling candy for a college fundraiser. She later said she was selling candy to put herself through college. She had no documentation that she was selling candy or was a college student.
On February 20, 2009, jewelry and a Toshiba laptop were taken during a burglary of Joanna Jamerson's home. During a search of Hales's and Adams's residence, police found that laptop in their bedroom. Adams told police that she bought the laptop for $300 from a man named "D-Mack" in front of a liquor store on February 18 or 19. During the search of Adams's residence, police found a letter containing gang jargon, which included a warning to stay out of Los Angeles.
Gang Expert Testimony
Sheriff's Detective Richard Cartmill testified that he had investigated "hundreds of gang-related crimes" and had "probably contacted thousands of gang members." He was familiar with the 4-Trey Gangster Crips and had experience talking with its members. It is a "criminal street gang" and its primary activities involved the commission of numerous serious felonies. Hales and Childs are members.
Cartmill said the burglary and the possession of stolen property offenses were committed for the benefit of the gang. The 4-Trey Gangster Crips had a modus operandi of committing burglaries using female associates and girlfriends. Gang members pretended to sell items door to door. He said his opinion was based "upon the totality of the circumstances and also conversations [he] had with officers Drenckhahn and Berdin as far as burglary trends with the 4-Trey Gangster Crips that are going on in the Los Angeles Police Department's patrol area, as well as other areas." He said that Berdin and officers from Orange County knew that the 4-Trey Gangster Crips were committing burglaries "with that similar method of operation as a rouse."
Cartmill said this burglary was "a rather sophisticated crime" and "not a crime of opportunity, " as it involved "a lookout" and "a rouse, " and that the gang was expanding its operations into the Antelope Valley. This offense involved two admitted gang members, including one who came from Los Angeles, and the burglary was consistent with "a method of operation that is very distinctive for the Los Angeles basin." He testified that he knew from his experience that gang members hide stolen property at their girlfriend's homes.
Cartmill said that the letter the police found at Adams's residence was a warning to stay out of Los Angeles because there was a turf war between the Grape Street Crips and the 4-Trey Gangster Crips. The letter was addressed to "Lady P.K." He believed that the moniker "Lady P.K." referred to Adams. The trial court redacted a portion of that letter. In the version Cartmill read to the jury, the author of the letter stated, "The homies get into it with the Grapes. Tough right now so stay out of L.A. The homey knock a female and about tough them down already. But they shot like four of them and one can't walk no more."
Appellants did not testify and they called no witnesses.
DISCUSSION
The Gang Enhancements
Appellants claim that the gang enhancements must be vacated because: 1) there is no substantial evidence to support a finding that the crimes were gang related, 2) the prosecution failed to prove the required elements and predicate offenses under the gang enhancement statute, 3) the gang expert relied on inadmissible and unreliable hearsay, and 4) the gang expert used source material from other law enforcement officers who did not testify that contravened appellants' confrontation clause rights under Crawford v. Washington, supra, 541 U.S. 36. We disagree.
Substantial Evidence that the Offenses Were Gang Related
In deciding the sufficiency of the evidence, we draw all reasonable inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide the credibility of the witnesses. (Ibid.)
Section 186.22, subdivision (b)(1) provides for an enhanced punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members...."
Adams claims that "although there was considerable evidence that [Hales and Childs] are members of the 4-Trey Gangster Crips, there was absolutely no evidence that [she] is a gang member." But the enhancement in section 186.22, subdivision (b)(1) does not require that the defendant be a gang member. "Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 68.) "[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Ibid.)
Here there is substantial evidence that the three appellants committed a gang-related burglary and that Adams and Childs assisted Hales. Hales and Childs were members of the 4-Trey Gangster Crips. Cartmill testified that this gang had a modus operandi of committing burglaries using "a female associate or girlfriend." They would "go door to door pretending to sell something as they knock on the door...." But if nobody answers, "another member of the gang would break into that house."
Adams told police that she was selling candy for an Antelope Valley College fundraiser. She later changed her story and said she was selling candy to put herself through college. But she was unable to provide documentation that she was an Antelope Valley College student or that she was selling candy. Adams also showed her consciousness of guilt by telling police that only she and Childs went to the house. But she made a cell phone call to Hales when the sheriff's deputies arrived. Childs admitted during questioning that he was "there with Mr. Hales." He also said he was assisting in the candy sales. But he had no candy when he knocked on Valeri's door. The jury could reasonably infer this was a coordinated crime consistent with the gang's modus operandi. Adams and Childs stood watch to warn Hales when he entered the Sandberg home, and pretended to sell candy when questioned. Adams's cell phone call was the warning for Hales to leave before the police entered the residence.
There was also evidence supporting the finding that the possession of stolen property offense was a gang-related crime committed by Hales and Adams. Jurors could reasonably infer that Adams and Hales assisted 4-Trey Gangster Crips by committing burglary and that stolen items in their possession were fruits of that gang endeavor. The Toshiba laptop was taken in the burglary of the Jamerson residence on February 20, three days before the Sandberg burglary. Police found it in the bedroom Adams shared with her boyfriend Hales. Adams did not claim she was unaware of its presence. Instead, she made false statements to police about her ownership of that item which were highly incriminating. Jurors could find that her false claim that she bought it for cash on February 18 or 19 showed her consciousness of guilt and was an attempt to protect herself and Hales. From her actions at the Sandberg residence, and the "Lady P.K." letter, jurors could reasonably infer that Adams was a known associate of the gang.
Cartmill testified that gangs possess stolen property because the items are "easily transferable at any pawn shop" for cash. The gang uses the cash to buy weapons and drugs which it will later sell. He said from his "personal experience as a gang investigator, " he knew that gang members often hide stolen property at "their girlfriend's house because it is a lower likelihood that the police will be able to figure out who their girlfriend is" and to impede searches. Cartmill testified that the possession offense was committed for the benefit of the 4-Trey Gangster Crips.
Proof of Street Gang Elements, Predicate Offenses and Gang Membership
Appellants claim that 1) the evidence is insufficient to support a finding that the 4-Trey Gangster Crips was a criminal street gang within the gang enhancement statute, and 2) the prosecution failed to prove that Hales and Childs were active gang members. We disagree.
A "criminal street gang" is any ongoing organization or group of three or more persons "having as one of its primary activities the commission of" various predicate criminal acts including murder, assault, unlawful possession of weapons and burglary. (§ 186.22, subd. (f); id., subd. (e)(1)-(33).) The prosecution must prove that: 1) the defendant is an active participant in the gang; and 2) the gang had a "pattern of criminal gang activity, " which includes the commission of two or more predicate offenses committed on separate occasions by two or more gang members. (§ 186.22, subd. (a); id., subds. (e) & (i); People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
Cartmill testified that the 4-Trey Gangster Crips is a criminal street gang. He said its primary activities include murder, robbery, burglary, weapons sales, weapon possession, assaults, narcotics sales and "numerous other crimes." His testimony shows that members of this gang had committed the predicate offenses for the gang enhancement. Cartmill said Darron Williams, a "self-admitted" 4 Trey Gangster Crips member, was convicted of assault with a firearm. Martel Thomas, another 4-Trey Gangster Crips member, was convicted of murder with a finding that his offense was committed for the benefit of the gang. Another member, Dwuan Williams, was convicted of possession of a firearm. This evidence, combined with the commission of the Sandberg burglary, constituted proof of the predicate offenses and the gang's pattern of criminal activity. (People v. Gardeley (1996) 14 Cal.4th 605, 625.)
Moreover, "an individual's membership in a criminal street gang is a proper subject for expert testimony." (People v. Duran, supra, 97 Cal.App.4th at p. 1464.) Cartmill testified that Childs admitted to police that he was a 4-Trey Gangster Crips member. Childs used the gang monikers of "Bam" and "Little Capone." Cartmill said Hales was also a member. Hales had a gang tattoo of "43, " which stands for "4-Trey Gangster Crips."
The Gang Expert's Reliance on Hearsay
Appellants claim the trial court erred by not excluding Cartmill as an expert on gangs because his testimony was based solely on unreliable hearsay. We disagree.
The standard of review regarding the admission of gang evidence is whether the trial court abused its discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) "'[A] trial court has wide discretion to admit or exclude expert testimony.'" (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
Appellants suggest that Cartmill could not rely on hearsay in making his conclusions. But that is not the standard. "Expert testimony may... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions." (People v. Gardeley, supra, 14 Cal.4th at p. 618.) This may include hearsay. (Ibid.; In re Fields (1990) 51 Cal.3d 1063, 1070 ["An expert witness... may base an opinion on reliable hearsay, including out-of-court declarations of other persons"].) Because the Evidence Code "allows an expert witness to 'state on direct examination the reasons for his opinion and the matter... upon which it is based, ' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion." (Gardeley, at p. 618.)
Appellants' suggestion that Cartmill's testimony was based entirely on hearsay from other gang officers is not correct. Cartmill testified that his conclusion that the 4-Trey Gangster Crips was a criminal street gang was based on his training, "his experience" and his "personal contacts with 4-Trey Gangster Crips gang members." His conclusion that Martel Thomas, Darron Williams and Dwuan Williams were 4-Trey Gangster Crips members who committed predicate crimes was based largely on certified court records. He also relied on information provided to him by Los Angeles Police Department officers regarding the gang's modus operandi and certain information about its members. A gang expert may rely on "information obtained from colleagues and other law enforcement agencies." (People v.Duran, supra, 97 Cal.App.4th at p. 1463.) The trial court could reasonably infer that this information was highly reliable. Cartmill's testimony shows that these officers had a special expertise and personal knowledge. They were "gang investigators" who were "specifically tasked with [the] 4-Trey Gangster Crips." They knew Thomas and Dwuan Williams, and knew they were "self-admitted member[s]" of the gang.
As to Hales and Childs, Cartmill had photographs, tattoos, and field interview cards that identified them as gang members. The source information on Childs and Hales was highly reliable because they had admitted their gang affiliation to police officers. (People v. Duran, supra, 97 Cal.App.4th at pp. 1463-1464; People v. Ruiz (1998) 62 Cal.App.4th 234, 241-242.) Cartmill said that his testimony about Adams was based in part on his "personal experience as a gang investigator." That experience was substantial because he had investigated hundreds of gang-related crimes and had personal contact with thousands of gang members. Appellants cite cases where gang experts unreasonably relied on general or unrelated information in reaching their opinions. But here the source material on the gang's modus operandi from Los Angeles gang unit officers was specific and the facts of the burglary were consistent with it. Appellants have not shown that the source information was unreliable. Appellants suggest that the prosecution improperly used Cartmill to introduce opinions from other officers. But the record reflects that Cartmill reached his own opinions and he was explaining the information he considered in drawing his conclusions.
Crawford v. Washington
Appellants contend that in reaching his conclusions, and during his testimony, Cartmill mentioned information he received from other gang unit officers who did not testify at trial. They claim this contravened their confrontation clause rights under Crawford v. Washington, supra, 541 U.S. 36. Their contention is not correct.
In Crawford, the Supreme Court held that out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has an opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at pp. 53-54.) But "'Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions.'" (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.) "Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned." (Ibid.) Here Cartmill testified and was cross-examined. The jury was able to determine his credibility, his expertise, and the reliability of the information he utilized to render his opinions.
Instructional Error and Prejudice to Adams
During a search of Adams's residence, police found a letter that contained gang jargon. Cartmill testified that it was a warning to stay out of Los Angeles because there was a turf war between the Grape Street Crips gang and the 4-Trey Gangster Crips. The letter was in an envelope addressed to "Lady P.K." Cartmill used the letter to support his conclusions on gang-related offenses.
Adams notes that the trial court gave the standard CALCRIM gang evidence instructions (CALCRIM Nos. 17.24.2, 17.24.3). But she claims they were not sufficient because the letter made reference to gang fights and other hearsay. She contends the court had a sua sponte duty to give a special limiting instruction.
But "[t]he trial court must give a limiting instruction on evidence admitted to support the gang enhancement only on request." (People v. Hernandez (2004) 33 Cal.4th 1040, 1052, italics added.) Here the trial court offered to give a limiting instruction and requested defense counsel to draft one. At the end of trial, it gave Adams's counsel a second opportunity to "fashion a special instruction" if counsel wanted one. But Adams has not shown that her trial counsel ever complied; consequently, she may not claim trial court error.
Yet even on the merits, the result does not change. Adams suggests that: 1) jurors were not instructed that they had the authority to reject the source information relied on by Cartmill, and 2) they consequently were left with the understanding that they had to accept that gang material and Cartmill's conclusions. We disagree.
The trial court instructed the jury that "[a]n opinion is only as good as the facts and reasons on which it is based." It said, "You are not bound by an opinion.... You may disregard any opinion if you find it to be unreasonable." The court said that if the expert relied on facts that were not proven, the jurors could consider that in rejecting the opinion. It said that experts are asked to assume facts in rendering opinions, but the jury must decide if the assumptions are true. Jurors also were instructed, "[Y]ou must determine what facts have been proved from the evidence received in the trial and not from any other source." Consequently, jurors knew they had the authority to reject Cartmill's opinions if they were based on unproven or unreliable information.
Adams claims jurors should have been instructed that the information from the letter and other gang officers was only being introduced to support Cartmill's conclusions, and not for its truth. She suggests that without this instruction jurors would not be able to distinguish between facts and assumptions.
But there is no sua sponte duty to give this instruction, and "disputes in this area must generally be left to the trial court's sound judgment." (People v. Montiel (1993) 5 Cal.4th 877, 919.) Adams has not shown an abuse of discretion. Jurors knew this information was used to support Cartmill's opinions because he testified he relied on it to reach them. They also were able to distinguish between the facts and assumptions he relied on because the defense challenged them as he testified. During cross-examination about his interpretation of the gang letter, Cartmill admitted he was assuming that the moniker "Lady P.K." referred to Adams because the letter was found at her residence and he had no other facts to support his conclusion. Consequently, the jury could easily determine whether his conclusions based on this assumption were reasonable and whether his testimony was credible. Even if the court committed instructional error, there is no reasonable likelihood that the result would change had the court given this instruction because of the strength of the prosecution's case. (People v. Breverman (1998) 19 Cal.4th 142, 172-174.)
Adams contends the trial court did not consider the highly prejudicial nature of that gang material. (Evid. Code, § 352.) She notes that she was not a gang member and she claims the gang evidence was unduly prejudicial to her. But the trial court considered the prejudicial impact. It redacted portions of the letter police found in Adams's residence to reduce the potential for prejudice. Although the letter referred to acts of violence, there was nothing in it to suggest that Adams committed such acts. "The danger in admitting gang evidence is that the jury will improperly infer that the defendant has a criminal disposition." (People v. Williams (2009) 170 Cal.App.4th 587, 612.) But here the court gave an instruction on gang evidence that cautioned jurors that they could not consider it to prove a defendant "is a person of bad character or that he or she has a disposition to commit crimes." It told jurors this evidence was introduced "for the limited purpose" of determining whether the gang enhancement was true. Consequently, jurors knew they could not use it to prove Adams committed the underlying possession and burglary offenses. Cartmill separately discussed the gang evidence for each defendant. No reasonable juror could find that Adams was a member of the gang because Cartmill said there was no evidence that she was. Moreover, the court could reasonably infer that any prejudicial impact of the gang evidence was substantially outweighed by its probative value. Based on this record, any error is harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Sentencing
The trial court sentenced Hales to the midterm of four years for the burglary conviction, and then doubled it because he fell within the purview of the Three Strikes law. It imposed a consecutive five-year term for the gang enhancement.
Because of a prior burglary conviction, the trial court also imposed a consecutive five-year term as a prior serious felony conviction enhancement (§ 667, subd. (a)(1)), and a consecutive one-year term as a prior prison term enhancement (§ 667.5, subd. (b)).
Hales contends that the trial court was not authorized to add the one-year prior prison term enhancement (§ 667.5, subd. (b)) after it had already imposed the five-year prior felony conviction enhancement (§ 667, subd. (a)(1)). The People agree. They are correct. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1152.)
We have reviewed appellants' remaining contentions and conclude they have not shown any additional error.
The one-year prior prison term enhancement for Hales is stricken. The trial court is directed to correct the abstract of judgment. In all other respects, for all appellants, the judgment is affirmed.
We concur: COFFEE, J., PERREN, J.