Opinion
E030830.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. DARYL SCOTT FERGUSON et al., Defendants and Appellants.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Daryl Scott Ferguson. Martha L. McGill, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Joe Haro. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, and Matthew Mulford, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Daryl Scott Ferguson of attempted second degree robbery (Pen. Code, §§ 664/211) and attempted voluntary manslaughter (§§ 664 & 192, subd. (a)), during both of which he discharged a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)), discharged a firearm (§ 12022.53, subd. (c)), used a firearm (§§ 12022.5, subd. (a)(1) & 12022.53, subd. (b)), and inflicted serious bodily injury (§ 12022.7, subd. (a)). The jury further found that Ferguson committed both offenses for the benefit of a street gang. (§ 186.22, subd. (b)(1).) The jury also convicted Ferguson of assault with a semiautomatic firearm (§ 245, subd. (b)), during which he used a handgun (§ 12022.5, subd. (a)). The same jury convicted Johnny Joe Haro of attempted second degree robbery and attempted voluntary manslaughter, during which a principal discharged a handgun proximately causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)), a principal discharged a handgun (§ 12022.53, subds. (c) & (e)(1)), and a principal used a handgun (§ 12022.5, subd. (a)(1), & 12022.53, subds. (b) & (e)(1)). The jury further found that Haro committed both offenses for the benefit of a street gang. The jury also convicted Haro of assault with a semiautomatic firearm. Ferguson was sentenced to prison for 25 years to life, plus 15 years 4 months, and Haro to prison for 25 years to life, plus 5 years. They appeal. Ferguson claims that his pretrial statements should have been suppressed. Haro claims that admission of these statements violated his rights to confrontation and cross-examination, and that there was insufficient evidence he was an aider and abettor. Both claim that there was insufficient evidence to support the gang enhancement findings. We reject all their claims and affirm, while directing the trial court to amend the abstracts to correct errors appearing in them.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
On March 31, 2000, 15-year-old Ferguson, wearing a stocking cap and carrying a gun, attempted to rob a liquor store. He and Haro, a proud and senior member of the East Side Trece gang, had both frequented the store. The store owner, who was Korean, pointed a gun at Ferguson, but did not fire because he thought he recognized Ferguson as his older cousin, Haro. Haros girlfriend told police that Haro had watched from a nearby hillside while the crimes were being committed. Ferguson fired his gun three times, hitting the owner in the shoulder.
After being arrested during a traffic stop one week after the crimes, Haro told a jail cellmate that he had been involved in a shooting at a liquor store, which was owned by an Asian man. Haro implicated himself as the gunman and said he wore a stocking cap with holes cut out for his eyes. He also admitted trying to run from the police during the traffic stop and throwing the gun used in the crimes into the bushes.
Haros girlfriend told her aunt that Haro had participated in the robbery of a liquor store. She told her aunt and the police that Haro had discarded a gun, which matched the description of the weapon that had been used in the crimes.
1. Fergusons Pretrial Statements
The police interviewed Ferguson at his school districts police office. The police investigator assured Ferguson, "Before I go any farther . . . like I told you before, I am not here to arrest you. . . . [A]s far as I am concerned I just want to talk to you about some things in this past. . . . [Y]ou want to talk to me right? You want to clear up anything?" Ferguson answered, "Yes." The investigator then advised Ferguson of his Miranda rights and began questioning him. The investigator did not ask Ferguson if he understood his rights or if he waived them.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Ferguson described his participation in the liquor store robbery. At the end of the interview, the police arrested Ferguson and asked for his fathers phone number.
In denying Fergusons motion to suppress, the trial court ruled that the interview was not a custodial interrogation but, if it was, Ferguson was properly admonished and impliedly waived his rights. On appeal, Ferguson attacks and the People defend all three aspects of the ruling.
Our review is guided by well-established principles: "`We must accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citations.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
Using the proper deference to the trial court, we agree that substantial evidence supports the finding that the interview was not a custodial interrogation. The trial court recognized that the police removed Ferguson from school and took him in a police vehicle to the school districts police office to be interviewed. But the court noted that the office was only a room with three desks in the same building as the school bus dispatcher. The door was left partially open during the interview. Ferguson was not told he could not leave and he was not handcuffed or restrained.
Ferguson identifies four factors to aid in determining whether a person is in custody. "Among the most important are: (1) the site of the interrogation; (2) whether the investigation has focused on the suspect; (3) whether the objective indicia of arrest are present; and (4) the length and form of questioning." (People v. Herdan (1974) 42 Cal.App.3d 300, 307, fns. omitted.)
Contrary to Fergusons view, these factors do not support a finding of custody. The interrogation site was apparently a police office in name only. However, even an actual police station is not generally considered a coercive environment. (People v. Stansbury (1995) 9 Cal.4th 824, 833.) To the extent it is relevant (People v. Bellomo (1992) 10 Cal.App.4th 195, 199), the investigation had focused on Haro, not Ferguson, who was regarded as a possible witness, but not a likely suspect. Ferguson was assured he was not being arrested until the end of the interview. Furthermore, the interview itself was brief and, although it may have been intense at some points, as the court observed, it did not seem coercive in tone.
Fergusons juvenile status does not alter the analysis. Even if we were to consider the nonbinding reasoning of the Ninth Circuit in Alvarado v. Hickman (2002) 316 F.3d 841), it would not apply here. Alvarado concerned an unsophisticated juvenile defendant with no previous criminal history. (Id . at p. 847.) In contrast, Ferguson already had a fair amount of exposure to the criminal system. He had been detained at age 13 for graffiti violations and a drug paraphernalia offense. He had also been caught in a residential robbery. Unlike Alvarado, Ferguson had enough experience with criminal procedure to perceive that he was free to leave and not in custody.
The most compelling evidence to suggest Ferguson was in custody is that the police gave him the Miranda admonishment required by Welfare and Institutions Code section 625 when there is reasonable cause for believing a juvenile in temporary custody has committed a crime. Although the evidence about custody may be conflicting, the trial courts ruling has substantial support.
Furthermore, even assuming Ferguson was in custody, we find enough evidence to support the trial courts ruling that he was properly admonished and waived his rights. Ferguson contends the admonishment was defective because the officer said "anything can be used against you in court," rather than "anything you say can be used against you in court." (Dickerson v. United States (2000) 530 U.S. 428, 435.) The omission of the words "you say" did not render the actual admonishment ineffective. The latter phrase is included within the former.
Ferguson also protests the officers failure to ask whether he understood and waived his rights. Waiver, however, may be implied from circumstances. (People v. Whitson (1998) 17 Cal.4th 229, 246.) Here, a criminally sophisticated juvenile defendant was advised of his rights and questioned briefly in a neutral setting. Except for the absence of a parent or lawyer, nothing about the circumstances suggested he did not or could not make a voluntary confession. (In re Eduardo G. (1980) 108 Cal.App.3d 745, 756-757.)
In the edited version of Fergusons statements to police, which the jury heard, Ferguson admitted committing the charged offenses. He said what occurred at the store was a mistake. He explained he had been at the home of his friend, Daryl, before the crimes. He denied needing money, saying he "just wasnt caring if [he] had money or not." He said he was scared and did it "[because] I dont want my cousins to think anything like that about me. I want them to respect me but I guess theyre not gonna anymore," presumably because his attempt at the robbery failed. He said he didnt want to do it and told no one about it afterwards.
The redactions left the statements difficult or impossible to follow in parts.
He said another gang did not like him because of his family, who were East Side Trece, but he denied being in the latter or wanting to be in it. He mentioned a "Flaco," and his cousins Pelon, Jessie and Timothy, but without context. He also mentioned Haros girlfriend.
When speaking about where he had met her, he made his first reference to an unidentified male, saying, "When he first met was where I met her." He made a second such reference when he said concerning the day before the crimes, ". . . Im not sure if he came to that day. He just came to me that day." He made a third reference as follows, "I went in the store and the clerk looked at me and got scared and I looked at him and Is [sic] got scared for a second and I remember what he told me so I told him to give me the money . . . ." (Italics included.)
Haro contends, under People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123, that admitting Fergusons statements, even in their redacted form, violated the formers rights of confrontation and cross-examination. However, the edited version did not implicate Haro.
According to Haro, the redacted statements were incriminating to him because "it is likely the jury understood" the unidentified male in the last described statement referred to Haro and this supported the prosecutions theory that Ferguson acted under Haros direction. But the edited version did not implicate Haro in the crimes. (People v. Archer (2000) 82 Cal.App.4th 1380, 1386-1387, citing Richardson v. Marsh (1987) 481 U.S. 200, 208.) The only males mentioned in Fergusons statements, besides the store owner and his employer, were Fergusons father, a "Flaco," and Fergusons cousins, Timothy, Pelon and Jessie, and his friend, Daryl. Haro is nowhere mentioned. Even if the jury could infer that the male who was present when Ferguson met Haros girlfriend for the first time was Haro, the other two references, including the incriminating one, could not be linked to Haro.
We also reject Haros argument, first raised on appeal, that Fergusons confession was inadmissible hearsay because it did not constitute a declaration against penal interest. No appropriate objection was made on these grounds in the trial court. (Evid. Code, § 353.)
2. Insufficiency of the Evidence
a. Of the Gang Enhancement
The defendants contend there is insufficient evidence to support the jurys findings that the attempted robbery and attempted voluntary manslaughter were committed to benefit a street gang. We disagree.
The prosecutions gang expert testified that a gang will identify itself with a neighborhood or area. In this case, the liquor store was located in territory claimed by the East Side Trece. Haros brother and Fergusons cousin, Pelon, was also a member of East Side Trece. The expert explained that senior members of a gang, like Haro, control younger members or those who would like to be members. One method of joining a gang or gaining prestige as a gang member is to commit crimes for the gang, at the direction of an older member, in order to have the gang feared and respected by other gangs and civilians and to bring in money to the gang. Senior members want to witness such crimes in order to verify them and they supply the tools to get them done, including weapons and transportation. Senior gang members direct younger members or "wanna-bes" to do crimes for the additional reason that the latter get lesser punishment as juveniles than the former. Harsh consequences, including death, could result for those who do not commit crimes at the bidding of senior gang members.
When given a hypothetical question containing the facts proved by the prosecution and reasonable inferences that could be drawn from them, the expert opined that the instant crimes had been done for the benefit of East Side Trece. He explained that they benefited the gang by continuing its reign of terror in the area they claimed as theirs. Other gangs and civilians would respect and feel threatened by East Side Trece and would be reluctant to challenge its members or report them to the police. It would give the gangs members pride in the gang. Contrary to the defendants assertions, this evidence was properly admitted. (People v. Gardeley (1996) 14 Cal.4th 605, 619 [expert opinion, in response to hypothetical question that crimes were for benefit of gang and why, admissible]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224 [opinion of this court] [expert opinion that crime was committed for benefit of gang was sufficient to establish mother]; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1208 [gang expert testimony, in response to hypothetical question, as to defendants probable subjective intent admissible]; People v. Valdez (1997) 58 Cal.App.4th 494, 508-509 [gang experts opinion that crimes were committed to benefit gangs and why admissible]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1371 [Division Three of this court] ["[Gang expert opinion] is admissible even though it encompasses the ultimate issue in the case."].) The defendants reliance on People v. Killebrew (2002) 103 Cal.App.4th 644, 658, for their assertion otherwise is misplaced. In Killebrew, the experts testimony that "when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun" (id. at p. 652) was so obviously objectionable and unlike the testimony offered here and in the cases we cite that it merits no mention other than this brief reference.
We note that counsel below for Ferguson objected to this evidence only on the basis that it was "argumentative, speculative [and] inflammatory." Counsel for Haro did not object at all.
The dissent proposes we reverse the jurys finding because the gang experts testimony should not have been admitted in the first place. The basis for its objections to this testimony, however, was not even urged by defense counsel below. Moreover, the dissent is incorrect in its assertion that the evidence was "problematic" or otherwise improper, as the authorities we cite demonstrate, none of which the dissent addresses.
Although the dissent criticizes our "dismissal" of the holding in Killebrew (dis. opn., post, at p. 3), what else can one say of a case? Moreover, Killebrews discussion of testimony on subjective intent was dicta. The testimony at issue there did not concern subjective intent, but knowledge. The cases we cite in support of the admissibility of the gang experts testimony (which the dissent fails to discuss) concerns gang expert opinions as to why the crime(s) at issue was/were committed.
In addition to the above expert testimony, Fergusons statements to police as set forth above created a reasonable inference that someone put him up to the robbery and he did not do it because it was something he wanted to do, but in order to gain his cousins respect. Two of them, Haro and Pelon were East Side Trece. The fact that Ferguson would attempt to rob the store owner, whom he admitted he knew because he used to go into the store and talk to him, confirms that he did not embark upon the robbery for the money. That could have much more easily been accomplished at an establishment where Ferguson was not so well known, and, therefore, easily recognized.
One of the other cousins Ferguson mentioned in his statements to police had been, according to it, in prison serving a life term for years before the instant offense occurred.
Thus, contrary to the dissents assertion (dis. opn., post, at p. 2), there was evidence, in addition to the testimony of the gang expert, that this crime was gang-related.
Additionally, evidence supporting the jurys finding can be found in the statement by Haros girlfriend to the police that Haro was mean to Ferguson, disrespected him, and called him "Punk" and "Bitch." Despite this, Ferguson "wanted to be like . . . Haro, dress like him, cut his hair the same as . . . Haro . . . [and] [¶] . . . [¶] . . . be bad like [him]." (Italics added.) At the time of trial, their haircuts were identical. The jury could reasonably conclude that this was not normal interaction between cousins, but the kind of interaction that occurs between a senior gang member and a younger member or "wanna-be."
Contrary to the dissents assertion, the fact that Ferguson wore his hair like Haros was not irrelevant. (Dis. opn., post, at p. 2.) If it had been, Fergusons counsel below could have objected when testimony about it was presented on two different occasions during trial. However, he did not. In fact, it was relevant to show that Ferguson admired and attempted to emulate his hard-core gang member older cousin.
The foregoing provided a sufficient basis upon which the jury could conclude that the crimes had been committed to benefit the East Side Trece.
b. That Haro Aided and Abetted Ferguson
Haro contends that the evidence was insufficient to prove that he aided and abetted Ferguson because it did not show specific conduct by Haro which assisted Ferguson. He asserts he was not at the scene. He is incorrect. His girlfriend told police that he was standing on a hillside near the store. In light of the gang experts testimony, the jury could reasonably infer that Haro was acting as a lookout or supervising the crime he directed Ferguson to commit. Either made him an aider and abettor. (People v. Ngaue (1992) 8 Cal.App.4th 896, 906-907; People v. Villa (1957) 156 Cal.App.2d 128, 135.) Additionally, Haro admitted to two people being involved in the crimes and getting rid of the gun. This constituted further evidence, when considering the experts testimony, of his aiding and abetting the crimes.
DISPOSITION
The trial court is directed to amend Fergusons abstracts of judgment as follows: (1) On his indeterminate abstract: omit in section 1 the reference to count 2; omit in section 2 the references to the enhancements for count 1, other than the section 12022.53, subdivision (d) enhancement, and the references to the enhancements for count 2; and (2) on his determinate abstract: in section 1 following the word "additional," strike the words "counts are" and substitute the words "enhancement is"; add count 2 (attempted voluntary manslaughter, sections 664/192, subdivision (a)), and indicate the sentence for it was stayed pursuant to section 654; in section 2, add the count 1 enhancements under sections 12022.53, subdivisions (b) and (c), and 12022.7, subdivision (a), showing all to have been stayed, add the count 2 enhancements under sections 12022.53, subdivisions (b), (c) and (d), 12022.5, subdivision (a)(1), 12022.7, subdivision (a), and 186.22, subdivision (b), showing all to have been stricken or stayed; and in section 6, specify the term imposed to be 25 years to life. In all other respects, Fergusons judgment is affirmed.
The trial court is directed to amend Haros abstracts of judgment as follows: (1) On his indeterminate abstract: omit in section 1 the reference count 2; in section 2, add the 25-year-to-life term for the section 12022.53, subdivision (d) enhancement, and omit the reference to the section 186.22, subdivision (b)(1) enhancement; and (2) on his determinate abstract: in section 1, check the box preceding the word "additional," strike the words "counts are" following the word "additional" and substitute the word "enhancement is" and place the number 1 in the blank space following the word "attachment" and add count 2 (attempted voluntary manslaughter, sections 664/192, subdivision (a)), and indicate the sentence for it was stayed pursuant to section 654; in section 2, omit references to all count 1 and count 2 enhancements, with the exception of the section 186.22, subdivision (b)(1) enhancement on count 1. In all other respects, Haros judgment is affirmed.
The trial court did not address the count 1 sections 12022.5, subdivision (a)(1), 12022.53, subdivisions (b) and (c), and 186.22, subdivision (b)(1), enhancements when pronouncing sentence. Of the count 2 enhancements, it said, "stay . . . the enhancement pursuant to 12022.53(b)(2). The remaining gang enhancement." No allegation or true finding was made pursuant to section 12022.53, subdivision (b)(2). It is presumed the trial court was referring to the gang enhancement under section 186.22, subdivision (b)(1).
GAUT, J.
I dissent from that portion of the majority opinion upholding the jurys findings supporting a 10-year gang enhancement for defendant Ferguson and a gang enhancement for defendant Haro.
At the time of the crime, Ferguson was 15 years old. He had two tattoos, "trust no bitch" and "69." His adult cousin, defendant Haro, admitted membership in a gang, Eastside Trece. Another cousin, Pelon, was also in a gang. Defendant told the police that Haro forced him to commit the attempted robbery and he did it because, otherwise, he feared his cousins would not respect him. The majority also notes the irrelevant fact that, at trial, Ferguson wore his hair like Haro.
Apart from these facts, except for the evidence of the so-called gang expert, nothing identified the present crime as gang-related. In other cases where expert evidence about gangs has been admitted, some indication or overtone of gang involvement characterizes the subject crimes: gang-related language, gestures, and slogans; a dispute between rival gangs or racial conflict; or the defense of gang territory. The present case offers no such evidence. In a culture where gang attire is haute couture, tattoos are ubiquitous in every urban mall, and gangs afflict the Hispanic and African-American communities, the majority is willing to uphold the gang enhancements based on a boys relationship with two of his cousins and how he wore his hair at trial.
To support the gang enhancements, the prosecution had to show defendants committed the crimes "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 . . . ."
The prosecution offered the gang expert evidence under Evidence Code section 1101, subdivision (b), as evidence of motive and identity. Luna testified generally about the nature of gangs. He also, opined, over defense objection, that the attempted robbery was a gang crime, committed by Ferguson to obtain the respect of his cousins and at Haros instigation in retaliation for the liquor store employees flirting with Haros girlfriend.
Lunas opinion was the only evidence supporting the finding that defendants crimes were gang-related. But the evidence was problematic and insufficient. The scope of expert testimony concerning criminal street gangs is broad but not unlimited. Generally, a gang expert cannot testify as to the ultimate issue in the case. In People v. Valdez, the court allowed a gang expert to testify a crime had been committed for the benefit of a gang. But Valdez presented a factual situation involving multiple gangs "far beyond the common experience of the jury." Valdez also held the experts opinion "was not tantamount to an opinion of guilt or . . . that the enhancement allegation was true."
In the present case, however, Lunas opinion was the equivalent of a true finding on the enhancement allegation, leaving nothing for the jury to decide. In addition, Lunas testimony as to why defendants committed the crimes was improper because it speculated wildly about defendants subjective intent. People v. Killebrew held the latter is an issue "properly reserved to the trier of fact." The majority reads Killebrew far too narrowly and improvidently dismisses the significance of its holding.
Without Lunas improper opinions as to why defendants committed their crimes and characterizing them as gang crimes, the only evidence about gangs came from Fergusons statements and Lunas general testimony about the nature of gangs, including that senior gang members commonly incite younger people to commit crimes. But no evidentiary link transforms these crimes into gang crimes. The logical outcome of the majority view is that any crime committed by related persons — one a gang member and one a younger person without any apparent gang affiliation — may be prosecuted as a gang crime. The paucity of evidence means the jurys findings on the gang enhancement allegations should have been reversed. Notes:
People v. Sengpadychith (2001) 26 Cal.4th 316, 321; People v. Gardeley (1996) 14 Cal.4th 605, 610; People v. Ro Van Vo (2003) 111 Cal.App.4th 321; People v. Killebrew (2002) 103 Cal.App.4th 644, 647-648; People v. Duran (2002) 97 Cal.App.4th 1448, 1454; People v. Manriquez (1999) 72 Cal.App.4th 1486, 1489; People v. Valdez (1997) 58 Cal.App.4th 494, 499; People v. Olguin (1994) 31 Cal.App.4th 1355, 1366-1377; People v. Gamez (1991) 235 Cal.App.3d 957, 963; People v. McDaniels (1980) 107 Cal.App.3d 898, 900-901.
Penal Code section 186.22, subdivision (b)(1).
People v. Killebrew, supra, 103 Cal.App.4th 644, 653-659; People v. Valdez, supra, 58 Cal.App.4th 494, 506.
People v. Killebrew, supra, 103 Cal.App.4th 644, 658.
People v. Valdez, supra, 58 Cal.App.4th 494.
People v. Valdez, supra, 58 Cal.App.4th 494, 509.
People v. Valdez, supra, 58 Cal.App.4th 494, 509.
People v. Killebrew, supra, 103 Cal.App.4th 644, 658.
I concur: HOLLENHORST, J.