Opinion
B230158
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES COLLINS, Defendant and Appellant.
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. VA111081)
APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey Lawes Falcone, Judge. Affirmed.
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent.
SUMMARY
Defendant James Collins, and his brother and codefendant Michael W. Henry (who is not a party to this appeal), were charged with a number of crimes arising out of a foray into a rival gang's territory. Defendant was charged by information with shooting at an inhabited dwelling (Pen. Code, § 246; count 1), assault with a firearm (Pen. Code, § 245, subd. (b); count 2), accessory after the fact (to Henry's assault with a firearm) (Pen. Code, § 32; count 4), knowingly permitting a loaded firearm in his vehicle (Pen. Code, § 12034, subd. (a); count 5), and evading an officer (Veh. Code, § 2800.1, subd. (a); count 6). The information also included gang (Pen. Code, § 186.22, subds. (b)(1)(C), (b) (4), (d); counts 1, 5, & 6) and prior offense allegations (Pen. Code, §§ 667, subd. (a)(1), 1170.12, subds. (a)-(d); counts 1, 2, 4, 5, and 6).
Codefendant Michael W. Henry appealed separately, and we affirmed his judgment of conviction in an unpublished decision, People v. Henry, review denied September 14, 2011, S195168.
The jury deadlocked on the assault charge, resulting in a mistrial and dismissal of that count, but found defendant guilty on the remaining counts, and found all the special allegations to be true. Defendant admitted his prior strike conviction and was sentenced to an aggregate term of 35 years to life, as follows: on count 1, 15 years to life, doubled to 30 years because of the prior strike conviction, as well as a five-year enhancement under Penal Code section 667, and a 10-year gang enhancement, which was stayed under section 654; on count 4, the midterm sentence of two years, doubled to four, also stayed under section 654; on count 5, to one-third the midterm of two years, doubled to 16 months, stayed under section 654; and on count 6, to one-third the midterm of two years, doubled to 16 months, to run concurrently with count 1. Defendant was awarded 568 days of actual custody credit, plus 85 days of conduct credit. He filed a timely notice of appeal.
All statutory references hereafter are to the Penal Code.
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Defendant makes the following contentions on appeal: (1) insufficient evidence supports his conviction for shooting at an inhabited dwelling and for the gang enhancements on all counts; (2) improper expert opinion regarding a witness's truthfulness was introduced at trial; and (3) improper remarks were made in the prosecutor's closing argument. Because we find no merit in defendant's claimed errors, we affirm the judgment.
FACTS
In the early morning hours of June 22, 2009, Los Angeles County Police Officer Jorge Negrete and his partner, Esteban Rodriguez, were patrolling a neighborhood in South Central Los Angeles. As they were driving south on Success Street, they were flagged by the driver of a white van, D.B. D.B. told the officers that a black male wearing a white T-shirt had pointed a gun at him on 96th Street. The gunman was on foot, followed by a newer white car with chrome wheel rims. As the officers were on the way to 96th Street to investigate, they heard seven gunshots coming from a house on the 9500 block of Parmelee Avenue. They turned onto Parmelee and saw a vehicle matching D.B.'s description, with its lights off, fleeing the scene. The officers pursued the car, with their lights and siren activated, but lost sight of it as it turned from 92nd Street onto Compton Avenue. The officers caught up with the vehicle on Compton Avenue, and pursued it for several blocks before the car finally stopped at Compton and 99th Street, where another patrol car was blocking traffic. The car was a light tan 1994 Lexus with tan and chrome rims. The officers arrested both defendant, the driver, and Henry, who was a passenger. No gun was found in their possession.
The residence on Parmelee Avenue was shot several times while a mother and her two children were sleeping inside. A bullet entered the daughter's bedroom, another went through the screen door, and another lodged in the television. This was not the first time the home had been shot, but the previous bullet holes had been repaired. Ten nine-millimeter shell casings were recovered in front of the home, and a bullet was extracted from the television.
Deputy Sheriff Alejandro Gardea drove D.B. to where defendant and Henry were detained so he could identify them. D.B. was scared and nervous. As he was driving, Deputy Gardea saw a gun on the corner of 92nd and Compton, on the route of the police chase. D.B. exclaimed, "That's the gun right there." Gardea told Negrete or Rodriguez about the gun, and Sergeant Rivas was sent to recover it. The gun had numerous scratch marks on it, consistent with being thrown out of a moving vehicle.
D.B. told officers that he recognized the car, and identified Henry by his clothing. He did not identify defendant. At trial, he testified that he could not remember anything about the shooting or having a gun pointed at him because he was "half asleep."
Defendants were brought to the police station in separate cars, where they were kept in separate holding cells. Officer Justin Smith gathered gunshot residue from defendant's and Henry's hands at the police station. Ten particles of gunshot residue were found on Henry's hands, and one particle was found on defendant. Gunshot residue is easily transferred and can be picked up in a police car. To avoid contamination, a suspect's hands should be protected, or the test should be performed immediately in the field. Neither defendants' hands were protected before they were placed in the patrol cars, and the tests were performed two to three hours after the shooting. Defendant used the restroom at the police station before his sample was taken. He was not observed while in the restroom.
The shell casings recovered from the Parmelee Avenue home were fired out of the gun found on 92nd and Compton. The bullet extracted from the television was too damaged to determine if it came from the same gun.
Gang expert Detective Jason Bates of the Los Angeles County Sheriff's Department opined that both defendants belonged to the 99 Watts Mafia Crips gang, because they previously admitted to being members in field interviews and had several gang tattoos (defendant had tattoos of 9's on both forearms). The 99 Watts Mafia Crips gang commits petty thefts, murders, possession of firearms, carjackings, illegal shooting at residences, and assaults with firearms. The residence on Parmelee is in Hat Crip gang territory, and is a known Hat Crip hangout. The Hat Crips and 99 Watts Mafia Crips are rival gangs. Bates opined that shooting at an occupied dwelling in a rival gang's territory would benefit the gang because it would show that "the 99 Street Mafia aren't afraid to roll into their territory with guns and commit acts of violence upon them, so that does benefit their gang by bringing in a status to their gang that their gang is violent and they're not afraid to shoot a rival gang member." The crime also benefits the gang because it creates fear in the community, and can create fear in the rival gang.
Bates also opined, based on a hypothetical scenario rooted in the facts of this case, the crimes were in "association" with the gang because two members committed the crimes together. Gang members carry guns to protect themselves and their confederates, and to increase their status within a gang. Allowing another gang member to possess a gun in your car would benefit the gang by enabling the members to commit acts of violence against their rivals. Fleeing from the police also benefits the gang, by keeping gang members out of jail and on the streets. Any of these acts, committed by two gang members, would be in "association" with the gang. Bates admitted during cross-examination that evading police could have a personal benefit, and that a person fleeing was likely thinking about himself instead of the gang.
Bates also testified about how witnesses are often scared to testify against gang members. When faced with a hypothetical about whether a witness who had a gun pointed at him and was reluctant to testify, and who testified that he "[didn't] remember what happened," was afraid, Bates opined that witnesses in gang crimes are often reluctant to cooperate out of fear of retaliation. Defendant's counsel objected that the questioning invaded the "providence" [sic]of the jury. The trial court overruled the objection.
During his closing argument, the prosecutor commented that: "[D.B.] told the officer . . . he is afraid. Afraid for his safety. Frankly, I don't blame him. You guys should be [scared] too if you were in that situation." Defendant objected, but did not seek an admonition to the jury.
DISCUSSION
Summarizing again the points raised on appeal, defendant contends: (1) insufficient evidence supports his conviction for shooting at an inhabited dwelling and the gang enhancements; (2) improper expert opinion was introduced regarding witness D.B.'s veracity; and (3) improper remarks were made in the prosecution's closing argument. We find no merit in these contentions.
1. Sufficiency of the Evidence
Before a judgment of conviction can be set aside for insufficiency of the evidence, it must clearly appear that on no hypothesis whatsoever is there sufficient substantial evidence to support the judgment. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Johnson (1980) 26 Cal.3d 557, 575-578.) The record must be reviewed in its entirety when determining whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 316-320; People v. Marshall (1997) 15 Cal.4th 1, 34; see also People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson, at p. 578.)
a. Shooting at an inhabited dwelling
At trial, the prosecutor's theory was that Henry fired the gun at the Parmelee house, and that defendant aided and abetted him by driving him there, knowing that Henry was going to shoot at the rival gang's hangout. Section 246 provides: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house . . . is guilty of a felony." A defendant may be guilty as a principal if he is a direct perpetrator of a crime, or if he aided and abetted the commission of a crime. (§ 31.) The test for aiding and abetting is whether the accused in any way, directly or indirectly, aided the perpetrator of the offense or advised and encouraged its commission with knowledge of the perpetrator's wrongful purpose. (People v. Butts (1965) 236 Cal.App.2d 817, 836.) If a defendant's guilt is predicated upon the theory that he aided and abetted the perpetrator, the defendant's intent to encourage or facilitate the actions of the perpetrator must have been formed prior to or during the commission of that offense. (People v. Montoya (1994) 7 Cal.4th 1027, 1039.)
There is ample evidence that defendant aided and abetted the shooting. D.B. told the police he saw Henry with a gun in the street, followed by a white car, before the shooting occurred, and later identified Henry in the field as well as the car that defendant was driving. When the police heard gunshots, they observed defendant and Henry speeding away from the scene of the shooting, with their headlights off. The gun linked to the shooting was found on defendants' escape route with scratches consistent with being tossed out of a moving vehicle, and gunshot residue was found on both defendants' hands. Both defendants were members of the same gang, and were apprehended in rival gang territory following a vicious attack on their rival gang's hangout. It is not our job to reweigh the evidence on appeal. (People v. Diaz (1992) 3 Cal.4th 495, 541; People v. Palma (1995) 40 Cal.App.4th 1559, 1567.) It is irrelevant that there were inconsistencies in the evidence, or that some "better" evidence may have existed. Conflicts or weaknesses in the evidence were for the jury to resolve and, on appeal, must be resolved in favor of the judgment. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
The jury could have easily inferred that defendant and Henry deliberately invaded rival gang territory to start trouble. Defendant knew Henry had a gun before the shooting, as evidenced by D.B.'s statements to police that Henry was being followed in a car, later identified as the car defendant was driving, while Henry was brandishing a gun. His consciousness of guilt is demonstrated by his flight after the shooting. The jury could reasonably infer that defendant was aware of Henry's intent to shoot at the house based on its status as a rival gang's hangout (which was apparently the subject of numerous previous shootings), and the fact that defendant was driving in the dark with his lights off, either to surprise any unwitting victims or to avoid detection and apprehension. (People v. Jack (1965) 233 Cal.App.2d 446, 458 ["The act of running away which constitutes flight in law . . . affords a basis for an inference of consciousness of guilt"]; see also § 1127c.)
b. Gang enhancements
Defendant also complains that the evidence was insufficient to support the gang enhancements, reasoning that since he and codefendant Henry are brothers, they could have had a nongang purpose for their conduct, and that the gang expert's opinions were unsupported. Section 186.22 provides for increased penalties for crimes "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." (§ 186.22, subd. (b)(1).) "It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation." (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) An expert opinion, however, must have some factual basis, and must not be purely speculative. (See People v. Gardeley (1996) 14 Cal.4th 605, 618.) There must be evidentiary support for an expert's inferences. (People v. Ochoa (2009) 179 Cal.App.4th 650, 662-663.)
In People v. Martinez (2008) 158 Cal.App.4th 1324, the court found that a gang enhancement was supported by substantial evidence where the defendant, an admitted gang member, committed a robbery with a gang confederate, and the expert opined the crime was committed in association with a gang. "'The evidence that defendant knowingly committed the charged crime[] in association with . . . fellow gang members was sufficient to support the jury's findings on the gang enhancements . . . .' [Citation.]" (Id. at p. 1332.) The crime was not committed in gang territory, and defendant did not identify his gang when he committed the crime. Nevertheless, the court concluded that "[t]he record supports a finding the crime was committed 'in association with' the gang with the intent to assist criminal conduct." (Ibid.)
This case is similar, except that it is strengthened by the additional fact that the crime was committed in rival gang territory. Defendants are admitted gang members with numerous gang tattoos. Defendant drove Henry into rival gang territory, knowing that Henry possessed a gun, and evaded police after Henry shot multiple times at a rival gang hangout. "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) These facts clearly support Detective Bates's opinion that the crimes were committed in association with the gang, and support the jury's conclusion that defendant acted with the specific intent to assist in criminal conduct by gang members. It is clear from the jury's verdict that they rejected the contrary inference that defendants were acting with a nongang purpose.
Defendant maintains that there is no credible evidence the crimes "benefited" the gang, as defendants did not identify themselves as gang members, and therefore did not ascribe credit to the gang for their acts. However, it is sufficient that the crimes were committed in association with a gang, without finding the crimes benefited the gang. (§ 186.22, subd. (b)(1).)
This case is unlike those cited by defendant, where improper opinions, not based on evidence, were the only evidence supporting a gang enhancement. (See People v. Ochoa, supra, 179 Cal.App.4th at pp. 654-655 [expert opinion was speculative; there was no evidence that crime was committed in gang territory or that there was special gang permission to commit the crime (id. at pp. 662-663)]; People v. Albarran (2007) 149 Cal.App.4th 214, 227 [expert admitted he did not know the reason for the shooting, therefore there was insufficient evidence that the shooting was gang related where circumstances did not evidence any gang connection]; People v. Ramon (2009) 175 Cal.App.4th 843, 851-853 [expert opinion speculative where two gang members were found in a stolen car with a firearm, because the expert did not testify that possessing stolen vehicles was one of the activities of the gang]; People v. Killebrew (2002) 103 Cal.App.4th 644, 652, 661 [unsupported expert speculation into defendant's subjective knowledge and intent (that if one gang member possesses a gun, every other member of the gang knows of the gun and constructively possesses it) was insufficient to support conviction], disapproved by People v. Vang (2011) 52 Cal.4th 1038, 1048.) In this case, Detective Bates's opinion was not based on speculation, but was based on conclusions drawn from a well-established factual record that more than adequately supports the jury's finding.
2. Expert Opinion on Witness's Truthfulness
Defendant next contends that Detective Bates offered an improper opinion concerning D.B.'s truthfulness. The prosecutor asked Bates, "Assuming, for example, a person being in the area of 96th and Parmelee, South Central, driving in a van, being pointed a gun at by two members of the 99th Street Watts Mafia Crip, that he was called to testify, he indicated he didn't want to be here, he was subpoenaed to testify, and the statements that he would respond to my questions or counsel's questions, the prosecutor's questions is generally that, 'I don't remember what happened, I don't know, I don't remember.' [¶] Do you have an opinion as to whether or not that individual would be afraid to testify and the reasons why he would not want to testify or lay out the individuals charged with a crime in this case?" Defense counsel objected that the question "[i]nvades the providence [sic] of the jury." The trial court overruled the objection, and Bates responded that "[i]t's common for victims of crimes where the suspects in the crimes are gang members to not cooperate and not want to testify in court [for] fear of being harmed, shot, murdered and killed at a later date."
"The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) Here, the prosecutor's question, though inartfully phrased, did not solicit testimony from Officer Bates concerning the ultimate issue of whether D.B. was testifying truthfully, but instead Officer Bates addressed why a witness might be reluctant to testify in a gang case. Opinions of this type -- regarding witness intimidation and recantation -- are routinely admitted, and are the proper subject of expert opinion. (See, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 945-946 ["Whether members of a street gang would intimidate persons who testify against a member of that or a rival gang is sufficiently beyond common experience that a court could reasonably believe expert opinion would assist the jury. . . . [The expert's] testimony was relevant to help the jury decide which version of the testimony was truthful: the eyewitnesses' initial identifications of defendant as the shooter . . . or the later repudiations of those identifications and that statement. 'Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court'"].) Even if the opinion were improper, it is clear no prejudice resulted, as the jury discounted D.B.'s testimony by deadlocking on the assault charge.
3. Prosecutorial Misconduct
Lastly, defendant contends that the prosecutor made an inappropriate remark during his closing argument, when he said: "[D.B.] told the officer . . . he is afraid. Afraid for his safety. Frankly, I don't blame him. You guys should be [scared] too if you were in that situation." After the prosecutor completed his closing, defense counsel stated as follows: "Your Honor, I know [counsel] probably just inadvertently made a statement that the jury should be scared. And I notice that he then added if you were in that person's position, whatever. But the suggestion out there, especially when it is a gang-type case, that the jury should have some form of fear in any fashion I think we need to stay away from. Because I think it's highly prejudicial against my client to inject that as something that the jury should even take into consideration." When the court asked counsel what counsel wanted the court to do, counsel responded, "I don't want to highlight it anymore. But I just wanted to make sure on rebuttal or something like that, that nothing like that comes up again."
"As a general rule, a prosecutor may not invite the jury to view the case through the victim's eyes, because to do so appeals to the jury's sympathy for the victim." (People v. Leonard (2007) 40 Cal.4th 1370, 1406.) Although it was inappropriate for the prosecutor to appeal to the jury's sympathy for the victim, we find the objectionable comments were harmless. Moreover, we agree with respondent that any claim of error was forfeited due to counsel's failure to seek an admonition to the jury. A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, he objected to the misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.) An exception to the rule is that "[a] defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Noguera (1992) 4 Cal.4th 599, 638.) In addition, failure to request an admonition does not forfeit the issue for appeal if "'an admonition would not have cured the harm caused by the misconduct.'" (People v. Bradford (1997) 15 Cal.4th 1229, 1333.)
Defendant did not seek an admonition, and we can find no basis for concluding that an admonition would be futile, or could not have cured the alleged misconduct. Predictably, defendant contends counsel's failure to seek an admonition constitutes ineffective assistance of counsel. "Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. [Citations.] This right 'entitles the defendant not to some bare assistance but rather to effective assistance.' [Citation.]" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466.) In order to demonstrate ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness, and that he was prejudiced by counsel's performance. (Id. at pp. 466-467.)
First, the failure to seek an admonition may have been a strategic decision by defense counsel. (People v. Jones (2003) 29 Cal.4th 1229, 1254 ["'"Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel"'"].) Second, defendant has not established a "'reasonable probability that, but for counsel's [unprofessional errors], the result of the proceeding would have been different.' [Citation.]" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1122, fn. omitted.) Defendant was not prejudiced due to the weight of the evidence, and because the jury clearly discounted D.B.'s testimony, as they deadlocked on the assault charge.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J. WE CONCUR:
BIGELOW, P. J.
RUBIN, J.