Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Allen Joseph Webster, Jr., Judge, Ct. No. TA083024
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Christopher Daniel Benjamin of first degree murder and found true the related firearm-enhancement allegations. Benjamin did not dispute he shot the victim, Jesus Serrano, but argued to the jury he had fired in self-defense when Serrano approached him with a gun in his hand. On appeal, Benjamin contends the trial court violated his constitutional right to confrontation by allowing the People’s gang expert, testifying with respect to motive, to state another sheriff’s deputy had identified Benjamin as a gang member. Benjamin also challenges two jury instructions related to motive. Finally, he contends the trial court erred in denying his motion for a new trial. We affirm.
Factual and Procedural Background
Serrano was shot in the early evening of June 29, 2005 in the parking lot of a liquor store located on the corner of San Pedro Street and El Segundo Boulevard in south Los Angeles. Separate surveillance cameras at the store recorded Serrano leaving a car in the parking lot, entering the store and returning to his car before a car containing Benjamin and three friends parked on the street in front of the store. According to the store owner’s testimony at trial, after the four men got out of their car, he asked one of them (later identified as Benjamin) not to smoke in the store. The man politely agreed. One of the other men, however, who was drinking a beer, became belligerent when told he could not enter the store with an open beer can. Apologizing to the store owner, his companions (including Benjamin) quickly restrained him and pushed him back into the car.
One of the cameras then showed Serrano, who wore gloves and was dressed in clothes described as gangster-like, walk away from his car in the parking lot toward the front of the store where Benjamin and his friends were getting into their car. As seen from another camera, a young woman approached the car in front of the store, looked over her shoulder toward Serrano and started to run. At the same moment, Benjamin pulled out a handgun and started firing at Serrano. Ten to 12 shots were fired before Benjamin jumped back into his car, which sped away. Serrano, who was hit by four bullets, died of his injuries at the scene.
Benjamin was arrested and charged by information with one count of first degree murder (Pen. Code, § 187, subd. (a)) with special allegations that he had personally used and discharged a firearm resulting in great bodily injury or death (§ 12022.53, subds. (b), (c) & (d)). The information further alleged Benjamin had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” Law (§§ 667 (b)-(i), 1170.12 (a)-(d)) and had served four separate prison terms for felony convictions warranting sentence enhancements under section 667.5, subdivision (b).
Statutory references are to the Penal Code unless otherwise indicated.
Benjamin, who did not testify, asserted a self-defense theory at trial, arguing Serrano had approached him and his friends with a gun in his hand. According to the testimony of the investigating Los Angeles County Sheriff’s deputy, Todd Anderson, no gun was found on or near Serrano; nor was there any evidence a weapon had been fired other than the one that killed Serrano. The videotape from one of the cameras had shown Serrano speaking on a cellphone as he stood near his car, but no cellphone was found. According to Anderson, who said he had analyzed the videotape, Serrano held a cellphone in his gloved hand as he approached the front of the store. The owner of the store testified he never saw a weapon in Serrano’s hand.
Although the information did not contain any criminal street gang enhancement allegations under section 188.22, the People elicited expert testimony from Deputy Anderson related to Serrano and Benjamin’s gang affiliations to establish motive. According to Anderson, the shooting occurred in the territory of the Barrio 13 (B13) gang, of which Serrano was a member and possibly a “shotcaller” or leader. The B13 gang is aligned with various Crips and Hispanic gangs and is hostile to gangs linked to the Bloods. Anderson testified that tattoos on Benjamin’s body identify him as a member of the Centerview Piru gang, which is affiliated with the Bloods and thus a rival of Serrano’s gang, B13. Over Benjamin’s objection, the trial court allowed Anderson to testify Sergeant Fred Reynolds, the gang supervisor for the Gang Investigative Unit, had advised Anderson he was familiar with Benjamin and Benjamin had admitted to Reynolds he was a member of the Centerview Piru gang. Based on Benjamin’s tattoos and his conversation with Reynolds, Anderson concluded Benjamin was a member of the Centerview Piru gang.
The People also called two of Benjamin’s companions to testify. Gregory Shallowhorn, the man Benjamin had helped restrain after he became belligerent with the store owner, testified that, following the shooting, Benjamin had never told him Serrano had a gun or that he was defending himself. Donald Gathright testified he saw a Hispanic male come around the corner of the store with a gun in his hand and heard someone say “duck.” Although he heard approximately 10 shots outside of the car, he did not see who actually fired a weapon. The People introduced Gathright’s statement to detectives that the Hispanic male had only acted like he was shooting and did not have a gun. Gathright was also impeached with an audiotape of a call he made from prison to his aunt and grandmother in which he admitted “they got everything,” referring to the detectives. “They got all our pictures from the crime, when we left the crime scene and everything.” “They got us red-handed....”
In defense, Benjamin called Taneisha Ward, the woman seen in the videotape approaching the car. Ward testified she knew Benjamin; and, as she approached the car to speak to him, he called her by her nickname and said, “Duck, B.B.” She turned around as she bent down and saw Serrano holding a gun in his right hand, which he fired. After that, she ran. Asked why she had not reported these facts previously, Ward stated she was afraid of retribution against her or her children, claiming that another person also known as “B.B.” had been killed after the shooting in a mistaken effort to silence her. A second defense witness testified Benjamin was a member of a motorcycle gang that did not allow its members to belong to any other gang.
The jury convicted Benjamin of first degree murder and found true the firearm-use enhancements. In a separate bench trial the court found true the allegations relating to Benjamin’s prior convictions. Benjamin moved for a new trial, in part on the ground a witness who had earlier disappeared had been found. He submitted her declaration stating she had witnessed the shooting and the Hispanic male involved had a gun. The trial court concluded the evidence was cumulative and denied the motion. Benjamin was sentenced to an aggregate state prison term of 50 years to life.
Discussion
1.Deputy Anderson’s Testimony Containing Sergeant Reynolds’s Hearsay Statement Did Not Violate Benjamin’s Right to Confrontation
In Crawford v. Washington (2004) 541 U.S. 36, 53-54 [124 S.Ct. 1354, 158 L.Ed.2d 177], the United States Supreme Court held the confrontation clause of the Sixth Amendment bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” “Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial.” (People v. Geier (2007) 41 Cal.4th 555, 597.) As the Supreme Court later explained, “Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 [126 S.Ct. 2266, 2273-2274, 165 L.Ed.2d 224, 237] fn.omitted; see Geier, at p. 605 [“a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial”].)
Benjamin argues his right to confront the witnesses against him was violated when the trial court allowed Deputy Anderson to testify Sergeant Reynolds had identified Benjamin as a member of the Centerview Piru street gang, a statement Benjamin construes as testimonial under Davis. Anderson relied on this statement, in addition to Benjamin’s tattoos, in forming his expert opinion Benjamin was a gang member. Benjamin contends the statement was unconstitutionally prejudicial because the tattoos, in and of themselves, did not establish he was a current gang member and, absent Reynolds’s statement, the People lacked evidence to support Benjamin’s motive to kill Serrano.
Benjamin’s argument founders on procedural and substantive grounds. To begin with, the objection made at trial by Benjamin’s counsel did not preserve the current constitutional argument. When the prosecutor initiated her questioning of Deputy Anderson about his conversation with Sergeant Reynolds, defense counsel requested a sidebar conference to interpose a hearsay objection and an objection to the lack of foundation for Reynolds’s own expertise. The court sustained the foundation objection, leading Deputy Anderson to identify Reynolds as a “long-time gang detective with the Compton Police Department” prior to its merger with the sheriff’s department. Anderson then explained Reynolds now worked as a supervisor overseeing the department’s gang investigators.
Once the foundation for Sergeant Reynolds’s gang expertise was provided, Benjamin’s counsel renewed her hearsay objection, which the court overruled. At no point did defense counsel offer a constitutional basis for her objection. Accordingly, that contention has been forfeited. (See People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, ___ [2009 WL 2506333].) An “‘objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.’” (People v. Partida (2005) 37 Cal.4th 428, 435.) “If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.” (Ibid.; see People v. Zamudio (2008) 43 Cal.4th 327, 353 [constitutional claim cognizable on appeal only to extent it does not involve facts or legal standards different from those defendant presented to trial court].)
In any event, Benjamin’s argument fails because an expert is entitled to rely on hearsay in developing his or her opinion (see Evid. Code, § 801, subd. (b)), including an opinion about gang membership (see, e.g., People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [not improper for expert to rely on his out-of-court conversations with gang members in testifying defendant was affiliated with criminal street gang]; People v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464 [“an individual’s membership in a criminal street gang is a proper subject for expert testimony”; expert may rely upon his or her “conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies” in developing his or her expert opinion].)
As explained in People v. Thomas, supra, 130 Cal.App.4th 1202, “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. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the material on which the expert bases his or her opinions are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” (Thomas, at p. 1210, quoting Crawford v. Washington, supra, 541 U.S. at p. 59; accord, People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.)
Benjamin argues that, in essence, Sergeant Reynolds’s statement was itself intended to establish the fact of his gang membership and contends he should have been permitted to cross-examine Reynolds to test the accuracy of his statement. The court, however, expressly instructed the jury to consider the evidence of gang activity solely “for the limited purpose of deciding whether the defendant had a motive to commit the crime charged.” Reynolds’s statement was not independently admissible; it was simply information Deputy Anderson, as a gang expert, was entitled to consider in reaching his opinion. As Presiding Justice Gilbert pointed out in People v. Ramirez, supra, 153 Cal.App.4th at page 1427, “any expert’s opinion is only as good as the truthfulness of the information on which it is based,” and it is the function of the jury to determine how much weight to accord any particular expert opinion.
2.The Trial Court Did Not Err in Instructing the Jury with CALCRIM No. 370
Using CALCRIM No. 370, the trial court instructed the jury, “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
Because Benjamin was charged with only a single offense (plus firearm-use enhancements), the court perhaps should have used the alternative language “the crime,” instead of “any of the crimes charged.” Notwithstanding Benjamin’s reference to the trial court’s use of a “modified” version of CALCRIM No. 370, we do not see this choice as a “modification” warranting closer scrutiny.
Benjamin complains this instruction was constitutionally flawed because it placed the burden on the defense to show an absence of motive to prove his innocence and failed to admonish the jury that motive alone is not sufficient to prove guilt. In reviewing the challenged instruction, we are guided by the established principles that “‘[j]ury instructions must be read together and understood in context as presented to the jury. Whether a jury has been correctly instructed depends upon the entire charge of the court.’ [Citations.] Jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions. [Citation.] An erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury.” (People v. Brock (2006) 143 Cal.App.4th 1266, 1277.)
Arguments identical to Benjamin’s challenging CALCRIM No. 370 have been considered and rejected by all the Courts of Appeal that have considered them. (See, e.g., People v. Ibarra (2007) 156 Cal.App.4th 1174, 1192-1193; People v. Anderson (2007) 152 Cal.App.4th 919, 942-943; cf. People v. Wilson (2008) 43 Cal.4th 1, 21-22 [finding predecessor to CALCRIM No. 370, CALJIC No. 2.51, complied with federal and state constitutional burden of proof and reasonable doubt requirements];People v. Cleveland (2004) 32 Cal.4th 704, 750 [CALJIC No. 2.51 does not impermissibly shift prosecution’s burden of proof to imply defendant had to prove his own innocence].)
CALCRIM No. 370 instructs on motive, not on the burden of proof to establish specific intent to commit a crime. “‘Motive, intent, and malice... are separate and disparate mental states. The words are not synonyms.... Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) “‘Saying motive is a factor that may tend to prove guilt is a far cry from saying it is a factor that alone may prove guilt. The fact that evidence tends to prove guilt merely establishes its relevance on the issue.’” (People v. Ibarra, supra, 156 Cal.App.4th at p. 1193, quoting People v. Anderson, supra, 152 Cal.App.4th at p. 943.) Benjamin’s contention CALCRIM No. 370 improperly instructed the jury it could rely solely on motive to establish his guilt is simply wrong.
As noted, jurors are presumed able to correlate, follow and understand the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) There is no reasonable likelihood the jury confused motive with an element of the offense of murder. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73 [112 S.Ct. 475, 116 L.2d.2d 385]; People v. Guerra (2006) 37 Cal.4th 1067, 1135.)
3.The Trial Court Did Not Err in Giving CALCRIM No. 1403
Benjamin next attacks the limiting instruction given by the court relating to the use of evidence of gang activity. The court instructed the jury: “You may consider evidence of gang activity only for the limited purpose of deciding whether: The defendant had a motive to commit the crime charged. You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and the information relied on by an expert witness in reaching his or her opinion. You may not consider this evidence for any other purpose. You may not conclude from the evidence that the defendant is a person of bad character or that he had a disposition to commit the crime.” Benjamin contends this instruction, as phrased, prevented the jury from considering inferences favorable to him—for instance, the jury was barred from considering the fact that Serrano’s status as a gang member made it more likely he would attack Benjamin and undermined his theory he acted in self-defense.
Benjamin’s interpretation of this instruction is, at best, tortured. Serrano, of course, was not on trial, and the jury was not required to assess his guilt or innocence. The evidence unambiguously identified Serrano as a gang member, and the jury was not confused about the defense’s theory that Benjamin fired only because he saw Serrano approaching with a gun. In closing argument Benjamin’s counsel extensively reviewed the videotape with the jury to track the perceived threat posed by Serrano to Benjamin and his friends. The court then instructed the jury on the elements of self-defense, in addition to those of murder, allowing the jury to consider whether Benjamin acted to protect himself or others. Again, there is no reasonable likelihood the jury rejected Benjamin’s self-defense theory because CALCRIM No. 1403 limited its consideration of whether Serrano was a gang member.
4.The Trial Court Did Not Err in Denying the New Trial Motion
Benjamin finally contends he should have been granted a new trial because he was able to locate a woman named Frankie Jenkins, who appears in the videotape of the shooting, only after the trial had concluded. Benjamin argues Jenkins’s testimony would have corroborated that of Ward, who was impeached because of her relationship with Benjamin.
According to declarations submitted by Jenkins and her daughter, Ne’Chelle Trahan, who stated she had been waiting in their car while her mother walked toward the store, each of them saw a Hispanic male wearing gloves walk toward the car containing Benjamin and his friends just before the shooting started. Jenkins stated she saw a gun in the man’s belt and heard him say, “Fuck your hood.” Trahan stated the man appeared to be talking to the African American men and held a gun in his gloved hand. When the shooting started, the Hispanic man used the front bumper of the car for protection; and the African American man stood at the rear of the car. After the shooting stopped, Jenkins ran back to the car; and she and Trahan drove away. Jenkins was stopped shortly after the shooting by sheriff’s deputies who suspected her of involvement. Later that night, deputies came to her house to determine whether she knew the shooter or any of his companions and later impounded her car as evidence. At some point, she was “chased” by several Hispanic men who believed she knew who had killed “Taco,” as Serrano was known.
Section 1181, subdivision 8, provides the court may grant a new trial “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’” (People v. Delgado (1993) 5 Cal.4th 312, 328.) Under Delgado the trial court’s decision to deny a motion for a new trial based upon newly discovered evidence is reviewed for an abuse of discretion: “‘“The determination of a motion for a new trial [based on newly discovered evidence] rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’” (Delgado, at p. 328.) “‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.”’” (Ibid.)
The trial court concluded, and we agree, Benjamin failed to establish diligence in searching for Jenkins before trial and her testimony, while corroborative of some of Ward’s statements, was directly contradicted by the videotape of the shooting. There is also an unexplained contradiction in the declarations in that mother and daughter disagree whether Serrano held a gun in his hand as he walked toward Benjamin’s car. Under these circumstances, we are reluctant to second-guess the trial judge, who not only presided over the trial but also had the opportunity to scrutinize the videotapes of the shooting. We cannot say this is a case in which “the newly discovered evidence contradicts the strongest evidence introduced against the defendant” or “expose[s] a serious gap in the prosecution’s proof.” (People v. Martinez (1984) 36 Cal.3d 816, 822, 823.)
Disposition
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.