Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. KA074541, Charles E. Horan, Judge.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Tremain Campbell appeals from the judgment entered following his conviction of two counts of forcible rape. (Pen. Code, § 261, subd. (a)(2).) The jury also found that the rapes were committed under circumstances set forth in section 667.61, subdivisions (a), (b), and (c), and defendant was armed with and personally used a firearm and a knife during the commission of the rapes. (§ 12022.3, subds. (a) and (b).)
All further statutory references are to the Penal Code.
Defendant was found to have committed rape (1) during the commission of a residential burglary, (2) while personally using a dangerous or deadly weapon or firearm, (3) against more than one victim, and (4) after engaging in the tying or binding of the victim.
He contends that (1) the prosecution was barred by the statute of limitations, (2) the question whether the statute had run should have been submitted to the jury, (3) the case should have been dismissed because the information showed on its face that prosecution was barred by the statute, (4) gang evidence was improperly admitted, (5) the section 12022.3 enhancements should be stricken, and (6) the court improperly imposed a court security fee. We will modify the judgment, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 26, 2006, the Los Angeles County District Attorney’s Office filed an information alleging that defendant had committed two rapes in July 1996. At arraignment, defendant filed a request to proceed in propria persona. After taking the appropriate waiver, the court granted the request. Defendant represented himself throughout pretrial proceedings and trial.
The information charged defendant under the name of Tony Dion Perry, one of defendant’s AKA’s. An amended information was filed alleging his true name to be Tremain Dion Campbell.
I. The Prosecution’s Case
On July 18, 1996, James Yap, a student at Cal Poly Pomona, lived in an apartment with three female roommates. In the early morning hours of July 19, he was awakened by two African-American males who were shaking him and telling him to get up. The males’ faces were covered by bandanas. Each was armed with a handgun. The men covered Yap’s mouth with duct tape and bound his wrists, legs, and ankles. They asked him where the phones and money were. The men left Yap’s room, and he heard items in the apartment being moved.
The men returned to his room and dragged him to the bedroom that his roommates shared. When Yap got to the other bedroom, he saw that two of his roommates were bound and tied to their respective beds. While lying on the floor, Yap heard his roommates moaning in pain. At some point, he heard someone walk to the bathroom and the toilet flush. He thought he heard the intruders leave the apartment. After one of his roommates untied him, he went into the rest of the apartment, noticed it had been ransacked, and discovered a number of items were missing.
A., referred to as Jane Doe 1 in the information, was one of Yap’s roommates. On July 19, she was awakened by a man she thought was her boyfriend. However, she felt corn rows on the man’s head, and her boyfriend did not have them. The man put agun to her left side. He told her to be quiet and asked if she had any valuables. He told her to turn over, and he ran his hands down the back of her body. When A. turned over, she was able to see her roommate and another man on the roommate’s bed. The man who had approached A. ripped open her t-shirt with a knife and removed her shorts and underwear. She was tied up with a telephone cord and duct tape.
The man took the jewelry A. was wearing. He left the room and began rummaging around the apartment. She surmised that he was looking for money and other valuables. He returned, placed the knife to her throat, and told her that since she had no money he was going to take something else. When A. said, “Please don’t do this,” the man told her to be quiet or he would slit her throat. A. heard the sound of a wrapper being torn. The man penetrated A.’s vagina with his penis. During intercourse, he told her not to worry because he was wearing a condom. When the man was finished, he ran to the bathroom. A. heard the toilet flush.
After the men left the apartment, she was able to untie herself. She found Yap bound inside of a sleeping bag that had been wrapped with duct tape. A. untied her female roommate. After the police were called, she went to a hospital where she was examined by a nurse.
N., referred to as Jane Doe 2 in the information, shared a bedroom with A. On July 19, she was awakened by the sound of the sliding door opening and people coming in. Two African-American men came into her bedroom. One went toward A., and the other, armed with a knife, came to her. The man told N. to be quiet and not move. He turned her on her stomach and tied her with duct tape. The men left the bedroom, and N. was able to hear closets and drawers in the apartment being opened.
The men returned to the bedroom. One of them asked N. if she had any money. When she replied that she had none, he removed her underwear. He put a condom on and penetrated her vagina with his penis. When he withdrew from her vagina, the condom remained. The man appeared to be looking for the condom, but he was unable to find it. The men left. Later, when N. was at the hospital, a doctor and nurse removed the condom from her vagina. N. denied knowing anyone named James Dixon.
On July 19, West Covina Police Officer James O’Brian was called to help investigate the crime scene. He found condom wrappers in the bedroom and a condom floating in the toilet in the bathroom. He removed the condom from the toilet, put it into an evidence envelope, and placed the envelope in cold storage in the Department’s evidence room.
On that same date, West Covina Police Officer Brian Prizzi responded to the hospital where the victims had been taken. He received two sexual assault kits and two medical reports from a nurse. One of the kits contained a condom. He took the kits and placed them in a freezer in the Department’s evidence room.
Gregory Wong, a biologist in the DNA testing section of the Los Angeles County Sheriff’s Department crime lab, testified that the lab received the sexual assault kit containing the condom that had been extracted from N. In September 2003, a DNA profile was obtained from material taken from the condom and the results were entered into the statewide DNA database. In January 2005, Wong was informed that the DNA profile that had been entered into the database matched the DNA profile of an individual named James Dixon. Wong received an oral swab from Dixon, performed DNA testing, and concluded that the DNA from the oral swab and the condom came from Dixon.
Flynn Lamas, also a biologist in the DNA testing section, received the condom removed from the toilet at the rape scene. In October 2003, he completed a DNA profile from sperm taken from inside the condom and entered the results into the DNA database. In March 2006, he was notified that the profile in the database matched that of Tony Perry (defendant’s AKA). On March 29, 2006, he received an oral swab taken from Tony Perry (later determined to be defendant). The DNA profile compiled from the sperm in the condom matched the DNA profile obtained from the oral swab. Lamas testified that the profile would match one in 22.8 quintillion members of the African-American population.
Sergeant Joseph Purcell, a detective with the Los Angeles County Sheriff’s Department, was investigating an unrelated crime involving James Dixon. He had certain evidence from that crime sent for DNA testing. He caused the DNA profile received in his case to be entered into the statewide DNA data base. The DNA profile he had submitted was matched to the DNA profile taken from the condom that had been removed from N. Purcell discovered that the condom had been recovered during the investigation of a rape conducted by the West Covina Police Department. He went to West Covina and retrieved the condom that had been recovered from the toilet at the scene. Later testing revealed that the DNA in that condom matched Tony Perry’s DNA profile that was in the data base. Purcell obtained a DNA sample from defendant (he booked the sample under the name Tony Perry). The DNA profile from that sample matched the DNA profile from the condom. Defendant admitted that Tony Perry is a name that he had used. Purcell confirmed that the Tony Perry in the DNA data base and defendant were the same person.
Sergeant David Bly, a deputy with the Sheriff’s Department, had been assigned to the Temple Station for the past 13 years. He is familiar with the Du Roc Crips gang. Between the years 2000 and 2006, the gang’s numbers fluctuated between 141 and 232. He reviewed the gang data base known as Cal Gangs, and discovered that James Dixon and defendant were documented members of the Du Roc Crips gang during the time of the rapes. Each man had a tattoo (Dixon had several) signifying that he was a member of the gang. Sergeant Bly opined that the men knew each other, given their simultaneous membership in the same gang.
II. The Defense Case
Mehul Anjaria is the laboratory director of Human Identification Technologies, a private forensic DNA testing and consulting laboratory. He examined the condom and the oral swab that contained defendant’s DNA. Based on records he had been provided, he did not “see a full accounting of the whereabouts of the condom from the time that it was collected at the crime scene to the time that it went to the Los Angeles Sheriff’s Laboratory.” He took a sample from the outside of the condom, performed DNA analysis, and could not develop a usable DNA profile. Unlike the Sheriff’s Department laboratory, he did not conclude that defendant was a possible contributor of DNA material on the outside of the condom. The manner in which the condom was preserved could have had a bearing on the ability to obtain test results.
On cross-examination, Anjaria acknowledged that he also took a sample from inside the condom. He agreed that the DNA profile from the sperm inside the condom matched defendant’s DNA profile. He admitted that his opinion regarding the chain of custody of the condom was based solely on the documents that he had been provided. He did not speak to any of the individuals who had collected the evidence.
Lafran McNulty had known defendant for approximately 12 or 13 years. In 1996, she and defendant lived together at an address in Covina. She testified that defendant had never worn his hair in corn rows. During the July 4th holiday in 1996, defendant was in Mississippi. He returned to Covina about two weeks later. During the early morning hours of July 19, defendant was at home because she would not have allowed him to stay out so late.
III. The Verdict and Post-trial Rulings
On October 3, 2006, the jury convicted defendant of both charges and found the special allegations true. Defendant retained counsel, who filed a new trial motion on November 30. Counsel asserted that the statute of limitations barred defendant’s prosecution and that gang evidence should not have been admitted. Defendant’s new trial motion was denied and he was sentenced to 70 years to life in state prison. This appeal followed.
DISCUSSION
I. The Statute of Limitations
Defendant contends that the statute of limitations for rape had run prior to the filing of the information. He acknowledges that section 801.1, which provides a 10-year statute of limitations for the crime of rape, renders his prosecution timely (the rape occurred on July 19, 1996, and the information was filed on April 26, 2006). However, he asserts that section 803, which originally authorized a rape prosecution brought within 10 years of the date of the offense, was repealed before 801.1 was enacted. Thus, he asserts the statute had run on his offenses and Stogner v. California (2003) 539 U.S. 607 bars his prosecution under the later enacted section 801.1. His argument is flawed by the fact that his timetable is inaccurate.
Prior to 2001, the crime of rape had a six-year statute of limitations. Effective January 1, 2001, the statute of limitations was increased to 10 years when the Legislature added section 803, subdivision (h). (Stats. 2000, c. 235, § 1.) Effective January 1, 2002, the 10-year statute was moved to subdivision (g) of section 803. (Stats. 2001, c. 235, § 1.) Effective January 1, 2005, section 801.1 was created and the provision relevant to this appeal has remained unchanged. The Legislature moved the 10-year statute of limitations for rape from section 803, subdivision (g) to section 801.1. (Stats. 2004, c. 368, § 1.) On February 28, 2005, the Legislature passed an act to repeal and add section 803. The new section 803 took effect immediately. (Stats. 2005, c. 2, § 3, eff. Feb. 28, 2005.)
Defendant concedes that the six-year statute had not run on his offenses prior to the enactment of section 803, subdivision (h).
Defendant is under the mistaken impression that the statute of limitations relating to his crimes expired on February 28, 2005, when former section 803 was repealed. He overlooks the fact that the 10-year statute of limitations for the crime of rape was not contained in section 803 in February 2005. As detailed above, that provision had been moved to section 801.1, which became effective on January 1, 2005, prior to section 803 being repealed. Put simply, for the relevant time period in this prosecution, the statute of limitations for defendant’s crimes has always been 10 years.
II. Whether the Statute of Limitations Barred Prosecution Was a Question of Law
Defendant asserts that the trial court’s failure to submit to the jury the question whether his prosecution was barred by the statute of limitations violated his constitutional right to have a jury finding on all of the elements of the crime with which he was charged. Initially, the trial court believed that the prosecution was relying on the provisions of section 803, subdivision (g)(1), which allows a criminal complaint to be filed “within one year of the date on which the identity of the suspect is conclusively established by DNA testing” under certain circumstances. It asked the parties to provide the appropriate jury instructions. Later, when the court realized that the operative statute was section 801.1, it determined that whether the statute had run was a question of law. The trial court was correct.
Defendant did not raise any factual issues relating to the statute of limitations. He did not dispute that the rapes were committed on July 19, 1996, and the information was filed on April 26, 2006. Defendant’s reliance on People v. Linder (2006) 139 Cal.App.4th 75 is misplaced. In Linder, the prosecution was brought pursuant to section 803, subdivision (g), which required the prosecutor to establish that the victim reported the crime to police after the applicable statute of limitations had expired, the crime involved substantial sexual conduct, independent evidence corroborated the victim’s allegation, and the prosecution was commenced within one year of the victim’s report of the offense to police. (Id. at p. 81.) As the question whether the statute of limitations barred the instant prosecution did not rely on the resolution of a factual dispute, the court appropriately decided the matter as a question of law. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611; see People v. Lopez (1997) 52 Cal.App.4th 233, 250 [if the evidence is uncontradicted at the pretrial hearing on question whether prosecution is barred by the applicable statute of limitations, the trial court may decide the issue as a matter of law].)
III. The Pleadings Do Not Establish That Prosecution Was Barred
In a related argument, defendant contends that the information showed on its face that his prosecution was barred. He asserts the trial court should have dismissed the case. As discussed above, the information, which was filed on April 26, 2006, alleged that the rapes were committed on July 19, 1996. Section 801.1 provides for a 10-year statute of limitations. On its face, the information established the prosecution was timely.
IV. The Gang Evidence Did Not Violate Defendant’s Right to Due Process
Defendant claims the trial court erred when it admitted gang evidence. He asserts that the evidence was more prejudicial than probative because it had little relevance to the rape charges and there was no gang enhancement alleged. Defendant also argues that the prosecutor improperly elicited evidence that James Dixon and he were members of the “Crips” gang. He contends that the “Crips” label is inflammatory, and its admission deprived him of “his due process right to a fair trial because the gang ‘evidence encouraged jurors to find [him] guilty of the offense based upon his purported gang affiliation rather than the evidence’ pertaining to the charged offenses.”
Out of the presence of the jury, the prosecutor advised the trial court that she intended to offer evidence relating to the Du Roc Crips gang. She proffered the following testimony from her expert: 1) the gang’s territory included the location where the rape took place; 2) James Dixon and defendant were members of the Du Roc gang at the time of the rapes; 3) Dixon and defendant had tattoos that identified them as Du Roc members; and 4) it was likely the men knew each other because of their simultaneous membership in the gang.
The court ruled that certain evidence was admissible. It allowed the expert to testify to the number of members in the gang and the geographic locale of its territory, that James Dixon and defendant were members at the time of the rapes, and that tattoos borne by Dixon and defendant identified them as Du Roc members. The court barred the expert from referring to the primary activities of the gang or to crimes other Du Roc members had committed.
While the court recognized that gang evidence is prejudicial, it believed that the probative value of the proffered testimony outweighed the prejudicial effect. The court noted that identification was a key issue in the trial as defendant was disputing the DNA results, even suggesting that the evidence had been planted. It concluded that since Dixon “has been identified as a co-participant, it seems to the court that evidence suggesting a connection between Mr. Dixon and the defendant above and beyond that day in question in 1996 is highly relevant. For that reason and that reason only, the court is allowing in some brief testimony having to do with membership in a common small group, notwithstanding it is a gang.”
The court instructed the jury that the gang evidence, if believed, “may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the defendant and James Dixon knew one another in 1996.”
In general, the courts “have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case.” (People v. Gonzalez (2006) 38 Cal.4th 932, 944.) Trial courts exercise discretion in determining whether evidence is admissible under Evidence Code section 352. (Ibid.) “The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason. [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
We agree with the trial court’s assessment that the gang evidence was relevant. Defendant disputed that he was present in the apartment on the night of the rapes. The court correctly determined that identification of the perpetrators was the key issue in the case. DNA evidence established that Dixon was one of the rapists. The evidence that Dixon and defendant shared common membership in a gang with a relatively limited number of members provided circumstantial evidence that the men knew each other and had reason to act in concert. Dixon’s and defendant’s tattoos were visual evidence connecting them to the same gang.
We also agree that the evidence was not unduly prejudicial. The cases cited by defendant are distinguishable. In People v. Albarran (2007) 149 Cal.App.4th 214, the trial court allowed extensive evidence relating to the defendant’s gang, including the criminal activities of its members, death threats made to police officers by its members, and references to the Mexican Mafia. The court held that the extremely inflammatory evidence “was so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of Albarran’s actual guilt.” (Id. at p. 228.) In contrast, no evidence beyond Dixon’s and defendant’s common membership in the gang and their gang tattoos was admitted. The jury did not hear any evidence about the gang’s activities or specific acts of any other members.
In People v. Avitia (2005) 127 Cal.App.4th 185, the defendant was charged with the negligent discharge of a firearm. The court allowed a deputy sheriff to testify that he saw gang graffiti on posters in the defendant’s bedroom. The defendant’s conviction was reversed on the ground that the gang evidence was irrelevant to any issue in the case. (Id. at p. 193.) As we have discussed, the evidence of Dixon’s and defendant’s association was relevant to prove identity.
The trial court carefully analyzed the proffered evidence and set forth its reasons on the record as to why the probative value of the evidence outweighed the prejudicial effect. Its decision was well within the bounds of reason.
Even if we were to conclude that the gang evidence was admitted in error, defendant cannot establish prejudice. He asserts that the admission of the evidence violated his right to due process and constituted federal constitutional error. The erroneous admission of evidence “results in a due process violation only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.) We have discussed the limited nature of the gang testimony that was admitted. Assuming its admission was error, it did not result in a violation of defendant’s right to due process. Under state law, we “must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (Ibid.) We conclude the answer is no. The experts, including defendant’s, testified that the DNA profile from sperm taken from the condom found in the toilet of the victims’ bathroom matched defendant’s DNA profile. The prosecutor’s DNA expert opined that the profile occurred in one in 22.8 quintillion members of the African-American population. In light of the compelling statistical evidence, defendant cannot show that he would have received a more favorable verdict absent the admission of the gang testimony.
V. The Instructions for the Section 12022.3 Allegations Were Proper and the Jury Finding Is Supported by Substantial Evidence
Defendant argues that section 12022.3, subdivision (a) requires that a perpetrator personally used a firearm or deadly weapon, and that a true finding cannot be based on vicarious liability. He contends that the “jury instructions suggested that jurors did not need to find that [he] ‘personally’ used or armed himself with a knife because the ‘personal use’ aspect of the instructions pertained only to the firearm enhancement.” He asserts that the instruction, CALJIC No. 17.19.1, misled the jury because in defining personal use of a firearm or deadly weapon, it specifically referred to intentionally firing a weapon. He argues that by using terms that apply only to firearms, the jury was led to “conclude that [it] could find the knife enhancements true on a theory of vicarious liability.” We disagree.
Defendant acknowledges there is a split of authority on this issue. For purposes of this appeal, we assume, without deciding, that defendant’s interpretation of section 12022.3, subdivision (a) is correct.
The jury was instructed as follows:
“It is alleged in Counts 1 and 2 that the defendant, in the commission of the charged crimes:
“1. was armed with a firearm within the meaning of Penal Code section 12022.3(b);
“2. was armed with a deadly weapon, to wit: a knife, within the meaning of Penal Code section 12022.3(b);
“3. personally used a firearm within the meaning of Penal Code section 12022.3(a);
“4. personally used a deadly weapon, to wit: a knife, within the meaning of [P]enal Code section 12022.3(a);
“If you find the defendant guilty of the charged crime in Count 1 and/or Count 2 you must determine whether these charged allegations are true or not true.
“The word ‘firearm’ includes a handgun and is further defined as any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion. The ‘firearm’ need not be operable or loaded.
“A ‘deadly weapon’ is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily harm.
“The term ‘personally used a firearm or a deadly weapon,’ as used in this instruction, means that the defendant must have intentionally displayed a firearm and/or a deadly weapon in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.
“The term ‘armed with a firearm or a deadly weapon’ means knowingly to carry a firearm and/or a deadly weapon, or have it available for offensive or defensive use.
“The People have the burden of proving the truth of these allegations. If you have a reasonable doubt that an allegation is true, you must find it to be not true.
“Include special findings on these questions in your verdict, using a form that will be supplied for that purpose.”
When a defendant claims an instruction is ambiguous, we determine whether there is a reasonable likelihood that the instruction caused the jury to misconstrue or misapply the law. (People v. Thornton (2007) 41 Cal.4th 391, 436.) We have reviewed the instruction, and conclude there is no such reasonable likelihood. Defendant focuses on the terms in the instruction that apply to firearms and ignores the references to the deadly weapon, the knife. We, of course, must determine the correctness of the instruction by examining the entire instruction, not selected parts. (People v. Anderson (2007) 152 Cal.App.4th 919, 928-929.)
The jury was instructed that defendant was accused of “personally us[ing] a deadly weapon, to wit: a knife.” It was informed that the term “personally used a firearm or a deadly weapon” “means that the defendant must have intentionally displayed a firearm and/or a deadly weapon in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.” (Italics added.) Thus, the jury was specifically told that the deadly weapon at issue was a knife and that to find defendant personally used the knife it had to conclude that defendant either displayed the knife in a menacing manner or intentionally struck or hit someone with it. The fact that the instruction refers to a characteristic unique to a firearm (that it is capable of being fired) does not lead to the conclusion that a reasonable juror would ignore the plain language in the remainder of the instruction that refers to the necessity of finding that defendant intentionally used a knife.
Defendant asserts the jury finding that he personally used a knife is not supported by the evidence. “We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.]” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.)
Defendant argues that none of the victims identified him. However, he ignores the substantial circumstantial evidence that places a knife in his hand. A. testified that the man who initially approached her ripped her t-shirt with a knife. After the man returned from ransacking the apartment, he placed the knife to her throat, told her he was going to take something else because she had no money, and raped her. The DNA evidence linked defendant to A.’s rape. The jury reasonably deduced that defendant was the man who possessed the knife and sexually assaulted A.
VI. The Court Security Fee
Defendant claims the court erred by imposing the court security fee pursuant to section 1465.8 because his criminal conduct occurred before the law’s effective date. In People v. Alford (2007) 42 Cal.4th 749, our Supreme Court rejected that argument. As for this court, that ends the discussion. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The Attorney General points out that the trial court imposed a $20 security fee. He argues that because defendant was convicted of two offenses, the court should have imposed a $40 fee. We agree. (People v. Schoeb (2005) 132 Cal.App.4th 861, 866-867.) We will modify the judgment to include a $20 security fee for each of defendant’s two convictions.
DISPOSITION
The judgment is modified to reflect the imposition of a $40 security fee. The court is directed to send an amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: WILLHITE, Acting P. J., MANELLA, J.