From Casetext: Smarter Legal Research

People v. Dodge

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 3, 2012
A128594 (Cal. Ct. App. Jan. 3, 2012)

Opinion

A128594

01-03-2012

THE PEOPLE, Plaintiff and Respondent, v. RUSSELL DWAYNE DODGE, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 050802652)

A jury convicted appellant Russell Dwayne Dodge (hereafter Dodge) of first degree murder with two special circumstances. It also found gang and firearm enhancement allegations to be true. (Pen. Code, §§ 187, 190.2, subd. (a)(21)-(22), 12022.53, subds. (b)-(e)(1); former § 186.22 [compare Stats. 2006, ch. 596, § 1, pp. 4929-4933 with Stats. 2011, ch. 361, §§ 1, 23, eff. Sept. 29, 2011; substantively similar].) Sentenced to an indeterminate term of 60 years to life in state prison including a 10-year term for the gang enhancement, Dodge appeals. He challenges (1) the admission of an expert witness's opinion testimony given in direct examination in response to a hypothetical question about the specific intent required for the alleged gang enhancement; (2) the expert's opinion given during rebuttal examination that he had the specific intent required for that gang enhancement; and (3) the imposition of the 10-year gang enhancement term in addition to his indeterminate term of imprisonment. We strike the 10-year enhancement term, but otherwise affirm the judgment of conviction.

All statutory references are to the Penal Code unless otherwise indicated.

I. FACTS

Shortly before 8:30 p.m. on June 25, 2007, Dodge was riding by the county courthouse in Pittsburg with his older brother Bruce Dodge and Fernando Barajas. The three young men found the man they were looking for—Claudio Vasquez, a member of a rival gang. Dodge—then three days shy of his 18th birthday—shot Vasquez twice, once in the back and then the head. Vasquez died as a result of his wounds. He had a semiautomatic weapon on his person at the time of the shooting.

The incident was captured on videotape. Three days later, Dodge was arrested for murder. In a statement to police, he admitted shooting Vasquez. He told police that he had met Vasquez, who appeared to be Sureño gang member, minutes before the shooting. In this encounter, Vasquez had threatened Dodge—a member of the rival Norteño gang. While Dodge stood outside his mother's residence, Vasquez displayed a weapon. Gang slurs were exchanged and Vasquez threatened Dodge and his family.

Dodge lived with his mother a short distance away from the courthouse where the shooting occurred. His younger brother and infant nephew were often at the residence. He called his brother Bruce Dodge for help. The elder Dodge drove his car to the courthouse, taking Dodge and Fernando Barajas with him.

Dodge was being monitored by juvenile probation officials at the time of the shooting. He was required to stay at home. About the time of the shooting, his electronic ankle monitor signaled that he had left the residence. Sometime that day, the monitor was removed and discarded.

The .38-caliber handgun that killed Vasquez was found at the residence of Bruce Dodge. The Dodge brothers and Barajas were all members of the C.A.L. (Crazy Ass Latinos) gang, a subset of the Norteño criminal street gang. Bruce Dodge and Barajas were eventually arrested and were also charged with murder.

In March 2008, the Dodge brothers were charged with first degree murder. The information alleged a gang enhancement—that the killing was committed with the specific intent to further the Norteño criminal street gang. A firearm discharge enhancement and two special circumstances—that the murder was committed for criminal street gang purposes and that it was committed from a motor vehicle—were also alleged. (§§ 187, 190.2, subd. (a)(21)-(22), 12022.53, subds. (b)-(e)(1); former § 186.22, subd. (b)(1).)

The two brothers were tried separately; Bruce Dodge was scheduled to be tried in 2010. By the time Barajas testified for the prosecution at Dodge's trial in December 2009, he had pled guilty to being an accessory to murder with a gang enhancement, had served 16 months in jail and had been released from custody. (§ 32; former § 186.22, subd. (b)(1).) He was not scheduled to be sentenced until the two Dodge trials were completed, but he expected to be given 16 months with credit for time served.

At Dodge's trial, his shooting of Vasquez was undisputed. The crucial issue was whether the killing was gang-related or was motivated by fear of harm to Dodge's family. Dodge offered evidence—including his statement to police and the opinion of an expert psychologist—in support of his defense that the killing was prompted by his fear that Vasquez might harm his family. The prosecution offered evidence of gang involvement on the part of the Dodge brothers, Barajas and Vasquez. The jury heard that Bruce Dodge changed into clothing in gang colors and numbers before leaving to find Vasquez. The prosecution elicited an opinion from a gang expert police officer in support of its theory that the shooting was committed to promote, further or assist criminal conduct by Norteño gang members. The jury also heard evidence of gang culture, including gang-associated numbers, names, colors, and signs. They were told that Vasquez's display of a weapon would be viewed by rival gang members as disrespectful and challenging, inducing Dodge to fight.

Ultimately, the jury found Dodge guilty of first degree murder. It found the gang enhancement, firearm discharge enhancement and two special circumstances allegations to be true. His motion for new trial was denied. In April 2010, Dodge was sentenced. The trial court declined to impose a term of life imprisonment without possibility of parole. Instead, it sentenced Dodge to a total term of 60 years to life in state prison—a term of 25 years to life for the murder, enhanced by a consecutive term of 25 years to life for firearm discharge and another consecutive 10-year term for the gang enhancement.

II. GANG EVIDENCE

A. Hypothetical Question

California law permits an expert witness to offer opinion testimony that might assist the trier of fact about an issue beyond common experience. The culture and habits of criminal street gangs are proper subjects of expert opinion testimony. (People v. Vang (2011) 52 Cal.4th 1038, 1044, 1049-1050 fn. 5 (Vang); People v. Gardeley (1996) 14 Cal.4th 605, 617; see Evid. Code, §§ 720, 801, subd. (a).) An expert may offer an opinion on the basis of facts assumed to be true in a hypothetical question. (Vang, supra, 52 Cal.4th at p. 1045; People v. Gardeley, supra, 14 Cal.4th at p. 618.) On appeal, Dodge contends that using a hypothetical question that tracked every aspect of the prosecution's view of the evidence except his name was tantamount to asking the expert to render an impermissible opinion on the ultimate jury issue of his intent.

In our case, the gang enhancement alleged against Dodge required the jury to determine if he committed the underlying offense with the specific intent to promote, further or assist in criminal conduct by gang members. (See former § 186.22, subd. (b)(1).) This enhancement applies when a defendant personally commits a gang-related felony with the specific intent to aid members of the gang. (People v. Albillar (2010) 51 Cal.4th 47, 51, 67-68.) Before trial, Dodge's motion in limine was granted, precluding the prosecution's expert witness—Pittsburg Police Officer Donna Gianfala— from testifying about Dodge's specific intent. The trial court allowed hypothetical questions tracking the prosecution's evidence, but would not permit an expert witness to opine specifically about Dodge's intent. During direct examination, the prosecutor asked Officer Gianfala a lengthy hypothetical question that tracked its view of the evidence in its case-in-chief. Based on assumed facts identical to those offered by the prosecution in Dodge's case, she testified that the person committed the crime with the specific intent to promote, further or assist in criminal conduct by Norteño gang members.

Dodge argues on appeal that the trial court erred by permitting Officer Gianfala to offer an opinion in response to a hypothetical question about a shooting that mirrored the prosecution's version of the trial evidence. At trial, defense counsel posed no objection to the prosecutor posing this kind of hypothetical question. Without an appropriate objection in the trial court, the erroneous admission of evidence does not constitute a basis of reversal on appeal. (Evid. Code, § 353, subd. (a).) Dodge counters that any objection would have been futile, so that we may address the issue on appeal despite the lack of an objection.

We need not resolve this issue. Assuming arguendo that Dodge could overcome any procedural hurdle, we would find that his claim of error fails on the merits. During the pendency of Dodge's appeal, the California Supreme Court ruled on the precise issue he raises. It held that a questioner posing a hypothetical question to an expert witness is not required to disguise the fact that the question is based on the trial evidence. (Vang, supra, 52 Cal.4th at pp. 1041, 1046-1048; see People v. Gonzalez (2006) 38 Cal.4th 932, 946 fn. 3; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551 fn. 4.) Instead, a hypothetical question must be grounded in the facts shown by the evidence in the case to be determined. (Vang, supra, 52 Cal.4th at pp. 1045-1046; People v. Gardeley, supra, 14 Cal.4th at p. 618.) It need not encompass all the evidence, but may rely on one set of assumed facts despite evidence of another interpretation of the facts. (See Vang, supra, 52 Cal.4th at p. 1046.) Thus, a prosecution expert may express an opinion based on a hypothetical question relating to an element of a gang enhancement. (See id. at p. 1052.)

Dodge relies heavily on People v. Killebrew (2002) 103 Cal.App.4th 644 in support of his argument. Our Supreme Court has twice criticized that case, undermining significant aspects of it. (See Vang, supra, 52 Cal.4th at pp. 1047-1049; People v. Gonzalez, supra, 38 Cal.4th at pp. 946-947.)

That opinion testimony may even embrace the ultimate issue for the jury to determine. (Vang, supra, 52 Cal.4th at p. 1049; see Evid. Code, § 805.) The jury is not required to accept the expert opinion—it determines whether the opinion is worthy of credit at all. It also determines whether the facts assumed in the hypothetical question are true and if they are not, whether the differences between the assumed and true facts are significant. (Vang, supra, 52 Cal.4th at p. 1050; see CALCRIM No. 332.) As in Vang, Dodge's jury was instructed on the jury's role as arbiter of the credibility of expert witness opinion testimony and the accuracy of the facts underlying an opinion rendered based on a hypothetical question. (CALJIC Nos. 2.20, 2.80, 2.82.) For the same reasons that the California Supreme Court cited in Vang, we would reject this claim of error.Thus, even if Dodge was not required to object at trial, the evidence was properly admitted. B. Rebuttal Testimony

Dodge asserts that Vang does not resolve his federal constitutional jury trial and due process claims. (U.S. Const., 6th & 14th Amends.) Although we must follow our Supreme Court's decision in Vang, Dodge's federal claim of error may be preserved for federal review.

During cross-examination of Officer Gianfala, trial counsel repeatedly asked if her opinion would be different if she considered pro-defense facts that trial counsel linked to Dodge, his brother, Barajas, and other specifically named individuals. Trial counsel was warned in the midst of this examination that such questioning would permit responsive examination on matters that had previously been ruled inadmissible. Dodge's counsel continued to pose questions to Officer Gianfala in a name-specific manner. During redirect examination, over Dodge's objection, Officer Gianfala opined that he killed Vasquez with an intent to benefit the Norteño criminal street gang.

The issue of remembering to frame a response to a hypothetical question in a generic, nonspecific manner had also arisen earlier in the trial during the examination of a defense expert witness.

Dodge's motion for new trial was grounded in part on his challenge to this opinion testimony rendered on redirect examination. The testimony was elicited despite a trial court's ruling on his motion in limine precluding testimony on a specific individual's subjective intent. The trial court denied the new trial motion, ruling that defense counsel had "opened the door" to allow the prosecution to ask this question on redirect examination by ignoring the limitations of its ruling on his motion in limine otherwise precluding this specific opinion testimony.

On appeal, Dodge contends that the trial court erred by permitting this evidence to be admitted during redirect examination. He argues that the concept of "opening the door" to allow in impeachment testimony is a fallacy. He also contends that even if a party may "open the door" to allow in impeachment evidence, his trial counsel's conduct did not trigger the admission of Officer Gianfala's opinion testimony that Dodge himself had the specific intent required for the gang enhancement.

This argument is grounded in the assumption that Officer Gianfala's testimony about Dodge's specific intent was improper. Recently, the California Supreme Court stated in dicta that "in some circumstances, expert testimony regarding [a specific defendant] might be proper." The court declined to rule on this issue. (Vang, supra, 52 Cal.4th at p. 1048, fn. 4; see People v. Prince (2007) 40 Cal.4th 1179, 1227; People v. Valdez (1997) 58 Cal.App.4th 494, 507.)

This area of the law is somewhat confusing. (See People v. Steele (2002) 27 Cal.4th 1230, 1248-1249 [dicta]; see also 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 352, pp. 439-440.) Over 60 years ago, the California Supreme Court held that if inadmissible evidence is admitted without objection, the opposing side's failure to object does not entitle it to offer immaterial or irrelevant evidence as impeachment. (People v. Wells (1949) 33 Cal.2d 330, 340; see People v. Williams (1989) 213 Cal.App.3d 1186, 1189 fn. 1; People v. Gambos (1970) 5 Cal.App.3d 187, 192.) More recently, that court held that when a witness is questioned on cross-examination about matters that are relevant to that discussed during direct examination but not specifically elicited on direct, the witness may be examined on redirect about the new matter. The failure to object to inadmissible evidence does not bar a non-objecting party from taking advantage of an obvious mistake by the party introducing irrelevant evidence. However, when a party asks relevant questions without objection, it may not preclude the opposing side from conducting redirect about this same point by asserting that its own questions were improper. (People v. Steele, supra, 27 Cal.4th at pp. 1247-1248.)

The opinion testimony admitted in Dodge's case was admissible, for two reasons. First, the questions posed by his counsel were relevant, going to the issue of his intent at the time of the shooting. Likewise, evidence tending to contradict relevant defense evidence is likewise relevant for impeachment. (See People v. Cunningham (2001) 25 Cal.4th 926, 1025.) Second, there is no evidence of inadvertent blundering by defense counsel. Dodge's counsel knowingly abandoned the use of generic, hypothetical questions and asked repeated questions on cross-examination naming the specific actors in the case before us. After the prosecution observed that the questioning was not hypothetical, defense counsel was warned of the risk of doing so, but appears to have made a tactical choice to do so. After being warned of the potential consequences—loss of the benefit of the trial court's order granting his motion in limine—defense counsel repeatedly asked Officer Gianfala about her opinions about the various actors, including Dodge. Clearly, defense counsel made a choice, not a mistake.

Another reason persuades us that the evidence was properly admitted. Generally, the extent of redirect examination is a matter for the trial court's discretion. (People v. Steele, supra, 27 Cal.4th at p. 1247.) The overriding goal in cases such as the one before us is to prevent unfairness to either side when one party introduces evidence on a point and then tries to prevent the other from offering responsive evidence. (Id. at p. 1248.) In Dodge's case, at his request, the trial court barred the parties from asking Officer Gianfala a specific question about his intent, requiring them to rely on hypothetical questions instead. The prosecution complied with the trial court's order; Dodge did not. The trial court did not act in an unfair manner when—after cautioning defense counsel about the potential consequence of asking specific, non-hypothetical questions—it allowed that precise consequence to occur. For these reasons, we are satisfied that the trial court did not abuse its discretion in allowing the prosecution to ask Officer Gianfala her opinion about Dodge's specific intent.

As we find no error, we necessarily reject Dodge's claim that multiple errors were cumulatively prejudicial.
--------

III. ENHANCEMENT TERM

Dodge also contends that the trial court erred by imposing a 10-year gang enhancement consecutive to his indeterminate term. (See former § 186.22, subd. (b).) He is correct. The enhancement specified in former section 186.22, subdivision (b)(1)(C) applies only when the underlying offense is punished by a determinate term in prison. If the conviction is one for which an indeterminate term is chosen, the 15-year limitation on parole eligibility in former section 186.22, subdivision (b)(5) applies. When that parole limitation applies, the 10-year enhancement is not imposed. (People v. Lopez (2005) 34 Cal.4th 1002, 1007; People v. Fiu (2008) 165 Cal.App.4th 360, 389-390.) As the Attorney General concedes, we must strike the 10-year enhancement and modify the judgment. (§ 1260.)

IV. REMITTITUR

The 10-year term for the gang enhancement is stricken. A 15-year parole ineligibility applies instead. (Former § 186.22, subd. (b)(1)(C), (5).) The matter is remanded to the trial court to issue an amended abstract of judgment reflecting these modifications. As modified, the judgment is affirmed.

_____________

Reardon, J.

We concur:

_____________

Ruvolo, P.J.

_____________

Rivera, J.


Summaries of

People v. Dodge

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 3, 2012
A128594 (Cal. Ct. App. Jan. 3, 2012)
Case details for

People v. Dodge

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RUSSELL DWAYNE DODGE, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 3, 2012

Citations

A128594 (Cal. Ct. App. Jan. 3, 2012)