Opinion
D055992 Super. Ct. No. SCD213652
06-01-2011
THE PEOPLE, Plaintiff and Respondent, v. IVORY MONTEL HARRIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. (Retired judge of the San Diego Sup. Ct. assigned by the Chief Justice, pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
I.
INTRODUCTION
Defendant Ivory Montel Harris appeals a judgment of conviction following a jury trial in which he was convicted of first degree murder based on his participation in a gang-related drive-by shooting.
On appeal, Harris contends that there is insufficient evidence to establish that he was involved in the drive-by shooting, since no eyewitness placed him inside the vehicle involved in the shooting at the time of the incident. Harris also contends that the trial court erred in admitting certain portions of a gang experts testimony. According to Harris, the trial court allowed the gang expert to give improper opinion testimony as to Harriss guilt.
We conclude that there is substantial evidence to support the jurys guilty verdict. We further conclude that the trial court properly admitted the gang experts testimony, and that the gang expert did not usurp the jurys fact-finding function, as Harris contends. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Harris did not testify, and the defense did not present any witnesses.
1. Witness testimony
Sometime between 9:00 and 9:30 p.m. on August 14, 2004, Alfred Lacy, Lee Smith and some other friends finished playing basketball in Skyline Park and walked to a bus stop at the intersection of Skyline Drive and Meadowbrook Drive to catch a bus home. While they were waiting for a bus, a white Ford Expedition SUV stopped at a red light at the intersection. Lacy had seen this particular SUV several times before at an apartment complex on Potomac Street, and he had seen Edward Thomas get into the SUV two or three times a week. When the light changed, the SUV slowly drove away. Lacy noticed Thomas and a passenger "mad-dogging" him and his friends.
This location is within the territory claimed by the Skyline criminal street gang, and Skyline members tend to congregate there.
The SUV returned a couple of minutes later. The front seat passenger had moved toward the drivers side and was hanging out the drivers window. He positioned himself to shoot over the top of the vehicle and fired a handgun at Lacy and his friends. According to Lacy, the shooter was wearing a white T-shirt and a black do-rag. Lacy dove to the ground and then ran from the scene. He returned a short time later. A bullet fired from the SUV struck Smith in the abdomen, killing him.
A neighbor placed a 911 call about the shooting at 9:19 p.m. that night. The caller told the 911 operator that he had heard two shots fired approximately 20 seconds before he called.
In the meantime, at approximately 9:25 or 9:30 p.m., Thomas picked up Jimmine Johnson and her friend, Kendra Brown, at Browns residence, driving the SUV. The group was planning to go to a party. When the SUV arrived to pick up the girls, Thomas had three passengers—Robert Myers, Dejon Satterwhite (Thomass half brother), and Harris. Satterwhite, who was wearing a large black hoodie and gloves, was sitting behind Thomas. Myers, who was wearing a red hoodie and drinking from a bottle of brandy, got out of the rear passenger door to let the girls into the SUV. Johnson and Brown sat between Satterwhite and Myers in the back seat of the SUV. Harris, who was wearing a gray and red shirt, was sitting in the front passenger seat. Thomas, Satterwhite, and Harris were wearing black "football-like" gloves.
All four men were 5/9 Brim gang members. The 5/9 Brims include among their rivals members of the Skyline gang.
While Johnson and Brown were in the SUV, Harris waved a handgun in Thomass face, apparently in a joking manner. Thomas told Harris to put the gun away. At some point as the group was driving, one of them noticed that a police car was following the SUV. Harris passed a handgun to Myers. Myers asked Johnson or Brown to hold the gun, telling them that the police would not search a female. Both girls refused to take the gun. Johnson heard Harris say, in response to seeing the police car, "We should bust on them," which she understood to mean that they should shoot at the "cops that were behind [them]." Johnson also heard Harris say at one point, "[W]ere going to go to jail."
Harris directed Thomas to drive into a nearby apartment complex, saying, "Blood, turn into the apartments." Satterwhite told Thomas to stop the SUV. When he did so, Satterwhite opened the door and ran. One of the other men said, "He should have at least taken one of the pistols with him." Harris also attempted to flee when Thomas stopped the car.
San Diego Police Officer Paul Keffer heard over his radio the location that Lacy had suggested police look for the white SUV. Keffer drove to the area of the 6800 block of Potomac Street, where he observed a white SUV traveling southbound. Keffer followed the SUV to an apartment complex on Doriana Street. Before the SUV came to a complete stop, the rear door on the drivers side opened and a man, later identified as Satterwhite, jumped out and ran. After the vehicle stopped, Keffer saw the right front passenger get out of the SUV and begin walking away from the vehicle. Keffer, who had his gun drawn, yelled for the man to stop. The man, later identified as Harris, complied. As the police helicopter and backup units arrived, Keffer handcuffed Harris. Other officers ordered the remaining passengers to get out of the SUV.
At a curbside lineup, Lacy identified Thomas as the shooter and Myers as having been in the SUV at the time of the shooting, although he was not sure if Myers had been the driver. Lacy did not identify Harris, and said that he had not seen Brown or Johnson in the SUV at the time of the shooting.
2. Forensic evidence
a. The guns found in the SUV and the casing found at the scene of the shooting
On the floorboard of the back passenger seat and under Myerss seat, officers found a loaded .22-caliber rifle. Police also located a loaded .9-millimeter Ruger semiautomatic handgun under Myerss seat. In addition, police found a box of ammunition, which contained .9-millimeter and .22-caliber rounds, in the SUV. A loose bullet marked "Super X" was found under the middle row seat, along with a white sock filled with 24 more bullets. Police found two expended bullets stamped "Super X" in the air vents on the passenger side of the SUV, between the front windshield and the hood. These expended bullets had been fired from the rifle. Police also found a .9-millimeter casing that had been fired from the Ruger handgun in the rear door well of the SUV.
Police found a .380-millimeter expended cartridge casing at the scene of the shooting on Meadowbrook. After police arrested Satterwhite, he directed them to look for the .380-millimeter handgun in Potomac Park. Officers searched the area for several hours but never recovered a gun.
b. DNA
Officers recovered two pairs of gloves from the SUV. One pair was a set of mechanics gloves that police found in the front drivers area. The second pair was a set of gray Nike gloves that were found on the floorboard under the middle row seat of the SUV.
Gang members often refer to gloves that they wear during gang activities as "riders." Riders are typically worn to protect against injuries, and also to make it more difficult to identify a particular individual as having been at a crime scene or having handled a particular weapon.
DNA from at least four people was detected on the left-hand glove that police found on the drivers seat of the SUV. Harris was a possible major contributor to the DNA on that glove. The probability that a randomly-selected person could be a major contributor to the DNA was as follows: one in 3.8 trillion for Caucasians; one in 12 trillion for African-Americans; one in 1.3 quadrillion for Hispanics. Myers, Thomas, and Satterwhite were possible minor contributors to the DNA mixture found on that glove. The probability that a randomly selected individual could be a minor contributor to the DNA, for African-Americans, was one in 12 with respect to Myers, one in 83 with respect to Thomas, and one in 11 with respect to Satterwhite.
DNA from at least three people was detected on the right-hand glove found on the drivers seat. Harris was a possible major contributor to the DNA mixture on this glove, with similar, if not even smaller, probabilities that a randomly-selected person could be a major contributor. Thomas and Satterwhite were possible minor contributors to the DNA mixture on this glove, and Myers was excluded as a possible contributor.
c. Gunshot residue
A small amount of gunshot residue (GSR) was found on Harris. The amount of GSR discovered on Harris could have come from handling a firearm, discharging a firearm, or even from simply touching a surface that had GSR on it. Officers did not find any GSR on Thomas or Myers.
d. Fingerprints
Harriss fingerprints were found on the exterior passenger front door, facing the rear of the SUV. One palm print was found on the exterior of the passenger rear door window frame, and Harriss left palm print was found on the exterior door window frame on the drivers front door, facing the SUVs engine.
3. Gang evidence
The prosecutor presented evidence of Harriss membership in the 5/9 Brim gang. The primary color of the 5/9 Brim gang is burgundy or red; on multiple occasions when police had contacted Harris, he was wearing various red or burgundy pieces of clothing. At the time of trial, Harris had tattoos on his arms with the words "BRIM," "GANG" (two of these), "BLACK JUNE," and "BRIM AND PEACE." Police had frequently contacted Harris in 5/9 Brim territory, in the company of other 5/9 Brim members.
San Diego Police Detective Jack Schaeffer, a member of the street gangs unit, testified as an expert on gangs. Schaeffer grew up in the Skyline area, and worked in the eastern and mid-city patrol divisions for nine years. During this time, he often came into contact with gang members. Schaeffer spoke with gang members about the territories that they claimed, their rivals, and what various tattoos and nicknames meant. He frequently responded to calls about gang-related homicides, drive-by shootings, armed robberies, walk-up shootings, assaults, fights, and various drug-related crimes. Schaeffer had also been assigned to a juvenile services unit for three years, during which he continued to have contact with gang members.
Detective Schaeffer joined the street gangs unit, where his job entailed investigating gang-related crimes. Most of the shootings that Schaeffer investigated were drive-by shootings. Schaeffer testified that the primary activities of the 5/9 Brim gang were murders, attempted murders, drive-by shootings, robberies, armed robberies, carjackings, auto thefts, and burglaries. They also sold rock cocaine and marijuana. In 2004, there were more than 100 documented 5/9 Brim gang members.
Schaeffer testified about gang culture and the importance of respect and fear to a gang members status within a "set." The more violence that a gang member commits, the more respect he earns.
Detective Schaeffer expressed his opinion that, given a hypothetical with facts identical to the facts of this drive-by incident, the shooting would have been done in association with the 5/9 Brim street gang, and that it appeared to be a "textbook gang shooting." According to Schaeffer, gang members are typically made aware of firearms that another gang member is carrying in a vehicle. Further, gang members who drive into the heart of a rival gangs territory with multiple firearms in the vehicle, as in this case, typically intend to be involved in a shooting. In addition, according to Schaeffer, a shooting similar to this one would typically benefit a younger gang member who is trying to earn respect from his set; younger gang members often commit violent acts while accompanied by older gang members, who can attest to the acts. Further, a drive-by shooting in rival territory would benefit the gang by creating more fear, earning the gang more respect.
4. Other evidence
a. The distances between relevant locations
The prosecution presented evidence about the distances between various locations involved in the shooting and subsequent arrest of the 5/9 Brim members who were in the SUV, and evidence about the driving times to and between those locations, in order to attempt to discredit certain statements Harris made after his arrest to the effect that he was not picked up by the men in the SUV until after the drive-by shooting had occurred.
Stephen Kingkade, an investigator with the district attorneys office, testified about the distances between various locations related to the Smith shooting. For example, the distance between Harriss house on Florence Street and the scene of the shooting was 5.1 miles, and took approximately 11 minutes to drive by the most direct route. The distance between Harriss house and Browns house on Terracina was 10.8 miles, and driving the most direct route between those two locations took approximately 17 minutes. The distance between Browns home and the intersection of Paradise and Woodman, where Officer Keffer stopped the SUV, was 4.3 miles. That distance took Kingkade nine minutes to drive at 25 to 35 miles per hour. The total distance between the scene of the shooting and Harriss home on Florence, and from Harriss home to Browns home on Terracina, and finally from Browns home to Paradise and Woodman, where the police stopped the SUV, was 20.2 miles, and would take approximately 37 minutes to drive.
Kingkade drove these routes at 2:00 p.m., and stated that traffic conditions would not have been significantly different during the 9:00 p.m. hour, when the shooting and subsequent events took place.
Kingkade also calculated the distances and the approximate time that it would take to drive the route from the scene of the shooting to Browns home on Terracina, and from Terracina to the intersection of Paradise and Woodman. Kingkade testified that the distance between the location of the shooting and Browns home was 3.4 miles and took
nine minutes to drive. The distance between Browns house and the location where police stopped the SUV was, again, 4.3 miles, and had taken him approximately nine minutes to drive. The total driving time for this route was approximately 18 minutes.
Kingkade drove this route at approximately 9:00 p.m. He described the traffic conditions as "light," and stated that he drove between 25 and 35 miles per hour.
b. Harriss postarrest statements to Myers
After Harris and Myers were arrested, Officer John Russell put them together in the back seat of a police car that was equipped with a secret recorder. The jury heard the tape recording of the conversation between Myers and Harris, and was provided a transcript of the recording, as well.
Very early in the recording Harris indicates that he is aware that they are likely being recorded. Harris repeatedly makes comments to the effect that he does not know anything and was not there. He also tells Myers, "I was trying to tell them you just be taking me to my sisters house. They like, hell no. (laugh)." Harris makes statements indicating that he was aware that there were guns in the SUV, and can be heard telling Thomas, who was placed in a neighboring patrol car, "Dont let them mix you up South." He continues, "They like to throw triv you know what Im saying. They like to throw triv. He said this, he said that. Thats bullshit. The detectives like to say he said this he said that. Thats bullshit. Dont let them get you." B. Procedural background
For example, Harris started repeating in various ways that he "wasnt there," "know[s] nothing," and "d[oesnt] know no Jinx," and after making these statements, says, "They got a recorder in here (laugh) (cough)."
The People charged Harris with first degree murder (Pen. Code, § 187, subd. (a)), alleged a firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1), and further alleged that he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
A jury convicted Harris of first degree murder, and found true both the gun and gang enhancement allegations. The trial court sentenced Harris to a term of 25 years to life in state prison for the first degree murder conviction, plus an additional 25 years, consecutive, for the firearm enhancement.
Harris filed a timely notice of appeal.
III.
DISCUSSION
A. Sufficiency of the evidence to support the murder conviction
The prosecution presented multiple theories with respect to Harriss liability for Smiths murder. For example, the prosecutor argued that Harris could be convicted as a direct perpetrator of, or as someone who conspired to commit, or aided and abetted the commission of, either (a) the drive-by shooting or (b) the target crimes of carrying a concealed or loaded weapon on a person or in a vehicle, assault with a firearm or semiautomatic firearm, or discharging or permitting the discharge of a firearm from a car, with murder being a natural and probable consequence of any of these crimes.
The jury was instructed as to all of these theories.
Harris contends that the evidence is insufficient to support the jurys implied findings that he was present in the SUV at the time of the shooting, or, even if he was in the SUV, that he was a second shooter, or that he aided and abetted the drive-by shooting or any other offense. We conclude that although the evidence of Harriss participation in Smiths murder is circumstantial, it is nevertheless sufficient to support the jurys verdict.
1. Legal standards
When a defendant challenges the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[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 (1980) 26 Cal.3d 557, 578.) "Unless it is clearly shown that on no hypothesis whatever is there sufficient substantial evidence to support the [jurys] verdict[s,] we will not reverse. [Citation.]" (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
"Substantial evidence includes circumstantial evidence and any reasonable inferences flowing therefrom." (People v. Cole (1994) 23 Cal.App.4th 1672, 1678.) "The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Where the fact-finders findings " rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, "but our opinion that the circumstances also might reasonably be reconciled with a contrary finding" does not render the evidence insubstantial. [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077.)
Whether Harris is considered a direct perpetrator or an accomplice, the following legal principles apply:
" All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed. [Citation.] Accordingly, an aider and abettor shares the guilt of the actual perpetrator. [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] The jury must find the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . . [Citations.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123 (Mendoza).)
Thus, "[a] person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
"Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]" (Mendoza, supra, 18 Cal.4th at p. 1123.) "A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen." (CALJIC No. 3.02.) "To trigger application of the natural and probable consequences doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed." (People v. Prettyman (1996) 14 Cal.4th 248, 269 (Prettyman).)
"The elements of aider and abettor liability . . . on the natural and probable consequences theory are the following: the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendants confederate committed an offense other than the target crime; . . . and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. [Citation.] The issue is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]" (People v. Vasco (2005) 131 Cal.App.4th 137.) Whether the crime charged is the natural and probable consequence of the target crime is a factual question for the jury (People v. Cummins (2005) 127 Cal.App.4th 667, 677), which is to be determined "in light of all of the circumstances surrounding the incident" (People v. Nguyen (1993) 21 Cal.App.4th 518, 531).
2. Analysis
All of the prosecutions theories concerning Harriss liability were contingent on a finding that Harris was in the SUV when the shooting took place. Harris suggests that the evidence is insufficient to establish that he was in the SUV when the shooting occurred, and that his mere presence in the SUV when it was stopped by police, combined with his status as a gang member, is not enough to support the inference that he was present during the commission of the shooting.
Harris notes that no eyewitness testified that Harris was in the SUV at the time of the shooting. Harris maintains that the only evidence that he was in the SUV at the relevant time is evidence that demonstrated an inconsistency in his tape-recorded statements from the patrol car that he was picked up at his home after the shooting occurred. Harris argues that "this evidence viewed as a whole and in [the] light most favorable to the prosecution raises a suspicion [that] appellant might have been present [in the SUV at the time of the shooting]" and that "suspicion is not evidence; it only raises a possibility, which will not support an inference of fact."
Harris, a documented 5/9 Brim gang member, was present in the SUV with three other 5/9 Brim gang members approximately 20 minutes after that SUV was involved in a drive-by shooting in a rival gangs territory, when police stopped the SUV. A gang expert testified that the location where Smith was shot was territory claimed by the Skyline gang, and that the Skyline and 5/9 Brim gangs are rivals. Further, not only was Harris in the SUV with three fellow gang members, but police found two guns and a cache of ammunition in the SUV. The gang expert testified that gang members who travel into rival territory with guns and ammunition typically would do so expecting to participate in a shooting.
Although Thomas was not a documented 5/9 Brim member at the time, he essentially admitted to being a member of the gang, and detectives found evidence at his home linking him to the 5/9 Brim gang.
Further, based on the timeline of events, together with Harriss recorded postarrest statements, the jury could reasonably have inferred that Harris was present in the SUV at the time of the shooting. Specifically, Harris suggested that he had been at home all day, that his fellow gang members had picked him up just before they picked up Brown and Johnson, and that they were on the way to drop him off at a relatives home when the police stopped the SUV.
At one point, Harris said, "I was at home at the barbeque all day. (INAUD) bye-bye. (INAUD) was about to pick me up the other day (INAUD) drop me off at my sisters house man. My sister lives right there. I was getting out of the car police drew down on me." At another point he said, "I said, I told them from there [i.e., getting in the front seat of the SUV] I didnt ride nowhere with them but to that bitch house. From that bitch house all the way to my aunt[]s so they have to drop me off." Later Harris said, "I was trying to tell them you just be taking me to my sisters house. They like, hell no. (laugh)"
The prosecution presented evidence that undermined Harriss statements that he was picked up after the shooting, and that tended to establish that Harris was in fact present in the SUV at the time of the shooting. Specifically, a 911 call reporting the shooting was made at 9:19 p.m. The caller reported hearing the gunshots outside his South Meadowbrook home approximately 20 seconds prior to making the 911 call. Sometime between 9:00 and 9:30 p.m., Thomas spoke with Johnson about the possibility of Johnson and her friend Brown going to a party that night with Thomas. Later that night, when speaking with an officer, Johnson estimated that the phone call took place at approximately 9:15 p.m. The record does not reveal the exact time at which Thomas picked up Johnson and Brown. However, there was no dispute that Thomas picked up the two young women after the shooting had taken place, and Johnson and Brown were in the SUV when Officer Keffer spotted it at approximately 9:41 p.m. Thus, at most, 22 minutes elapsed between the time of the shooting and the time that Officer Keffer spotted the SUV. In that time period, Thomas made at least one brief stop to pick up Johnson and Brown. This timeline is more consistent with Thomas having driven directly from the scene of the drive-by shooting to Browns home to pick up the two young women, and then to the location where the SUV was spotted by Officer Keffer, than it is with a route that would have taken the men from the scene of the shooting to Harriss house, then to Browns home, and finally, to the location where Officer Keffer spotted the SUV. If the men had driven to pick Harris up at his home, as Harris suggested in his statements to Myers while in the back of the patrol car, this would have added more than 10 miles of driving distance. The jury could reasonably have rejected Harriss version of events, and concluded instead that he was in the SUV at the time of the shooting, and that after the shooting, all four men drove directly to Browns home to pick up Johnson and Brown.
It is likely that Keffer actually spotted the suspect vehicle and notified the communications dispatcher of this fact prior to 9:41 p.m. Keffer testified that he was having trouble calling in his sighting of the SUV on the police radio because the radio traffic was busy, so it took some time for his call to get through. In addition, the time stamp on the records corresponds with the time that the communications dispatcher inputs the information into the "computer assisted dispatch" system, and not the time that the dispatcher receives the information.
In addition, after the men spotted a police vehicle, Harris passed a handgun to Myers, who then asked Johnson or Brown to hold the gun for him. Johnson heard Harris say, in response to seeing the police car, "We should bust on them," which she understood to mean that they should shoot at the cops behind them. She also heard him say at one point, "[W]ere going to go to jail." Harris also attempted to flee when Thomas finally stopped the car after pulling into the apartment complex. All of this evidence pertaining to Harriss behavior after the men noticed a police car following the SUV suggests consciousness of guilt, and constitutes additional evidence from which the jury could have inferred that Harris took part in the drive-by shooting.
Harris contends that his ties to the .9-millimeter handgun, his direction to Thomas to turn into the apartment complex, and his statements to Myers in the back of the patrol car "are equally reconcilable with a man who does not want to be caught with a gun in the car and who might well have been informed of the drive-by after its occurrence." He acknowledges that "issues of fact are for the trier," but asserts that his "gang status alone should not provide the sole foundation for every inference a jury must make." We disagree that the evidence that Harris cites is "equally reconcilable" with the possibility that Harris was simply in the wrong place (the SUV) at the wrong time (shortly after the shooting), and that he was not involved in the shooting at all, but was simply concerned about the possibility that the police might find guns in the SUV. In particular, Harriss comments on the recording demonstrate that Harris was aware that the conversation was being recorded. His self-serving statements, made after the fact, in combination with his cavalier attitude and demonstrations of bravado, could lead a reasonable person to conclude that Harriss statements were contrived, and that the evidence did not support the inference that Thomas and the other men had picked him up at his home after the shooting occurred.
Harris also contends that even if the evidence is sufficient to support the jurys implied finding that he was present in the SUV at the time of the shooting, there is insufficient evidence that he was either a second shooter, or that he knew of Thomass criminal purpose and had the specific intent to aid, promote, instigate, encourage, or facilitate that purpose, or that he conspired with Thomas to commit a murder or some other offense.
If, as we have determined, one could reasonably conclude that Harris was present in the SUV at the time of the shooting, then the evidence is sufficient to support a further finding that he conspired to commit, or aided and abetted, the drive-by shooting, or, at a minimum, that he aided and abetted the commission of one of the other firearm-related target offenses as to which the jury was instructed, and that the natural and probable consequence of any of those target offenses was a murder.
We need not address the question of the sufficiency of the evidence as to the theory that Harris was a second shooter because the evidence is sufficient to support the other theories of liability that were presented to the jury. We presume that the jury based its verdict on one of these grounds. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129 ["If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground"].)
There was evidence that the occupants of the SUV did a slow pass in front of Lacy, Smith and the others who were standing near the bus stop, and that the occupants of the SUV "mad-dogged" the group on the street. After completing the slow drive-by, the SUV made a u-turn and, upon reaching the men at the bus stop again, the shooter leaned out the window and over the roof, and fired at the group. One could reasonably infer from these facts that the occupants of the SUV all knew what was going to happen on the second drive-by.
Further, the gang expert testified that gang members often wear gloves, which they call "riders," when they go out to "put in work," to protect their hands from injuries in the event that they get into a fight, and also to make it more difficult to identify them as having been present at a crime scene or having handled a weapon involved in a crime.One could reasonably infer from this evidence, coupled with the DNA evidence linking Harris to a pair of gloves found in the front seat of the SUV, that Harris not only was in the SUV that evening, but that he was prepared to commit some sort of assault or participate in a shooting that night.
According to Detective Schaeffer, one of the specific reasons that gang members wear "riders" is "to protect themselves from leaving things, like DNA and fingerprints, on weapons and in crime scenes," and to "help protect them from GSR, gunshot residue."
The inference that all of the occupants of the SUV were aware that one of them was going to shoot at the men at the bus stop is further bolstered by the expert testimony about gangs and their unique culture, particularly with respect to drive-by shootings. Harris, Myers and Satterwhite were documented 5/9 Brim gang members, and, although Thomas was not documented at the time, there was a significant amount of evidence linking him to the 5/9 Brim gang. Detective Schaeffer testified that gang members riding together in a vehicle in which there are guns are typically aware of the presence of those guns, since gang members usually let the other members know that they are carrying firearms. In fact, gang members in a car with firearms often anticipate having to use those guns, or expect that there will be some kind of shooting. In addition, these men were members of the 5/9 Brims who were driving in Skyline territory with multiple firearms in their vehicle; it is typical for gang members who travel to rival turf with firearms in their possession to intend to get into some sort of altercation or to shoot someone.
In gang culture, respect is important, and respect is synonymous with fear. A gang members status in a gang depends on the amount of respect that he has earned; respect is earned through violence. Typically, a younger gang member will attempt to enhance his reputation by committing an offense in the presence of an older gang member, who would then be able to verify the younger members involvement in the crime. A murder committed by a younger gang member demonstrates that he or she is willing to do "work for the set." Harris was one of the older gang members, while Thomas and Satterwhite were younger members of the 5/9 Brim gang. Generally, an older gang member who is in a car with younger gang members and weapons and ammunition will anticipate that a younger gang member plans to commit a violent offense. In addition, gang members often have multiple firearms so that they are prepared in case the intended shooter "should have a misfire" or in case their targets return fire at them. Further, among the primary activities of the 5/9 Brim gang are murders, attempted murders, drive-by-shootings, robberies, and armed robberies. All of this evidence is circumstantial evidence that Harris was a participant in the drive-by shooting.
Taking into consideration all of the evidence pertaining to Harris, there is substantial evidence that Harris was not only in the SUV at the time of the drive-by shooting, but that he intended to aid and abet his fellow gang members in carrying out a shooting in rival territory, or, at a minimum, that he intended to aid and abet the other 5/9 Brim members in committing one or more of the identified target crimes. B. Testimony of gang expert
Harris contends that the trial court violated his rights to counsel, due process, and a fair trial under the Fifth, Sixth, and Fourteenth Amendments by admitting certain portions of the testimony of gang expert Detective Schaeffer. Harris also contends that the trial court abused its discretion in allowing Detective Schaeffer to testify as to what "others including appellant would or should know and/or expect from other gang members." Specifically, Harris asserts that Detective Schaeffers testimony "was improper expert testimony, as it constituted no more than improper lay opinion testimony . . . and did not assist the trier of fact," "impermissibly invaded the province of the jury, " and "undercut the . . . fundamental fairness of appellants trial."
Harriss attorney did not object to Detective Schaeffers testimony on constitutional grounds. Although Harris has forfeited his claim of constitutional error in the admission of Schaeffers expert testimony by failing to object on those grounds at the time the testimony was elicited, we address the merits of Harriss claim in light of his alternative argument that defense counsel rendered ineffective assistance by failing to raise such an objection. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, because defendant asserted ineffective assistance of counsel].)
Harris concedes that where a gang allegation has been made, the court may permit an expert to testify "concerning the culture, habits, and psychology of [a] gang, including the motivations for an individual members actions," and "a jury may rely on such testimony to render a finding on a gang allegation." Harris even acknowledges that "expert opinion testimony which embraces an ultimate issue to be decided by the trier of fact is admissible." He contends, however, that "this rule does not permit the expert to express any opinion he or she may have."
Included in the testimony about which Harris complains is Detective Schaeffers testimony in response to the prosecutors question concerning whether Schaeffer had ever spoken with gang members from whom he had recovered weapons "about why they were carrying firearms in their vehicle." After the court overruled a hearsay objection, Schaeffer responded, "Ive had people tell me that they were going to a specific location in a rival area in order to do a drive-by. Ive even had people kind of spell out exactly how they were going to pull off that drive-by or walk-up shooting while in the car." Schaeffer also explained what was meant by a "drive-by shooting," and, when asked whether he had spoken with gang members about why they engage in drive-by shootings, Schaeffer responded that it allows them to "get into an area quickly and then do a shooting and get out of that area just as quickly."
Harris argues that "[w]hat other gang members may do on other occasions had no relevance to any disputed fact in this case therefore it was irrelevant and carried no probative value." He also complains that "quick egress and ingress by a gang member followed by explaining what a drive-by shooting is was clearly not beyond common experience such that the trier of fact might be assisted." According to Harris, these were conclusions that a lay jury could have drawn on its own, and, therefore, there was no need for this testimony. We disagree. Detective Schaeffers testimony about drive-by shootings was particularly relevant to describe for the jury a subset of violent activity that is uniquely associated with gang culture. In combination with Schaeffers explanation as to why crime, and violent crime in particular, is so significant to the concept of "respect" in gang hierarchies, information about why gang members tend to utilize drive-by shootings was a proper subject of expert testimony.
Harris also complains about the following portion of Detective Schaeffers testimony, given in response to the prosecutors request that Schaeffer state the basis of his opinion that the drive-by shooting was done for the benefit of a criminal street gang:
"My opinion is based on—based upon a carload of individuals in that gang set worked in association to commit an act of violence in the heart of their rival. [¶] When they went down Skyline and Meadowbrook, from the facts as I know them, they werent going from point A to point B. That was obvious to me when they did the u-turn before they did the shooting. [¶] So they were, obviously, to me, looking for a target. Once they acquired that target, they turned around to get in a better position to shoot that target or targets. There was more than one person with Mr. Lacy that day. [¶] And the way—the manner in which they did it, it appeared to me that there was a driver and then three other individuals—so four, total, in the car—three guns that we know of being in the car at that time."
At that point, defense counsel objected that Detective Schaeffer was misstating the evidence. The court overruled the objection, saying, "This is what his opinion is based on. Its up to the jury to determine what the facts are, however." Harris complains on appeal that although an expert may render an opinion on the basis of facts given in a hypothetical question "that asks [the] expert to assume their truth," the hypothetical question must be "rooted in facts shown by the evidence." He asserts that in this case, there was "no hypothetical before this officer, particularly one that suggested a third gun was known to exist."
However, as Harris acknowledges, there was circumstantial evidence that a third gun—one not found in the SUV when it was stopped by police—had been used in the drive-by. Specifically, the firearms found in the SUV were a loaded rifle and a Ruger semiautomatic handgun with nine .9-millimeter cartridges in the magazine, which could hold 10. A .9-millimeter casing was recovered from the rear door well of the SUV. However, a .380-millimeter casing was found in the street at the murder scene, and ballistics testing demonstrated that it had not been fired by the Ruger. In addition, after having been arrested, Satterwhite directed police to look for a .380-millimeter handgun in a nearby park, constituting further circumstantial evidence that such a handgun had been used during the drive-by shooting.
Another portion of Detective Schaeffers testimony about which Harris complains is the detectives response to the prosecutors following hypothetical question: "Well, I guess Im going to ask you to assume, hypothetically, that those four individuals [i.e., the 5/9 Brims members] were present in the vehicle, with one of them being a driver, three others, of course, not being drivers. [¶] . . . [¶] . . . And three firearms being in the vehicle. [¶] Assuming for the limited purposes of this hypothetical that that was the state of the passengers in the vehicle as the white Expedition went past the taco shop and bus station and did the shooting. [¶] . . . [¶] . . . In that hypothetical do you have an opinion whether or not this crime was committed in association with the 5/9 Brim street gang?" After the prosecutor further clarified that he was assuming the presence of the four men from their presence in the SUV when it was stopped by police, Schaeffer responded,
"My understanding of the incident is, hypothetically, we had—Mr. Thomas was driving. Mr. Harris was a passenger. And in the rear seat we had Mr. Myers and Mr. Satterwhite. [¶] And as they go past targets—what they view as targets at 100 South Meadowbrook and do a u-turn, they are acting together with three armed individuals and then Mr. Thomas as the driver, all kind of acting together as one in kind of a textbook gang shooting situation. [¶] That would be kind of the ideal way to set up a shooting, if you were going to set up a shooting. You would have a car that was big enough for multiple people, and youd have a driver. And the people that werent driving would all have a firearm available."
Harris contends that this answer was "non-responsive beyond answering that assumed gang members were acting together and should have been stricken on this basis," and further argues that the response constituted "an improper opinion about how [a] particular defendant including appellant was thinking in this case." Harris cites People v. Killebrew (2002) 103 Cal.App.4th 644, 658, for the proposition that an expert may not express an opinion about a defendants subjective expectation, or testify about a specific person as opposed to a hypothetical person.
This testimony was responsive to the prosecutors question regarding whether Detective Schaeffer had an opinion as to whether the crime was committed in association with the 5/9 Brim gang, since Schaeffer was explaining his opinion that the shooting was, in fact, committed in association with the 5/9 Brim gang. Further, Schaeffer did not discuss what any particular individual in the car was thinking. Rather, Schaeffer discussed how gang members in general approach a drive-by shooting. Although the Killebrew court rejected the admission of testimony as to the "subjective knowledge and intent of each occupant in each vehicle" used in a drive-by shooting, it distinguished such testimony as being "much different from [testimony with respect to] the expectations of gang members in general when confronted with a specific action," which is admissible expert testimony. (People v. Killebrew, supra, 103 Cal.App.4th at p. 658.)
Harris also challenges additional testimony that Detective Schaeffer gave in response to the prosecutor posing the same hypothetical situation and asking Schaeffer whether he had an opinion as to whether gang members in a vehicle in which another gang member was armed would be aware of the presence of the firearm, and why gang members might share information about the presence of a firearm. Harris again argues that Schaeffers testimony in response to these questions constituted an improper opinion as to Harriss intent or mental state, and further argues that Schaeffers responses also improperly expressed an opinion as to the guilt of the defendant. He complains that Schaeffer "told this jury how he thought this case should be decided."
Detective Schaeffers testimony was not improper. He did not testify as to the specific intent that he believed that Harris harbored on the night of the shooting. Rather, he gave expert testimony, drawn from his particularized knowledge of gang culture and gang activity, as to what gang members in general would likely have known or been intending to do under circumstances identical to the circumstances of this drive-by shooting. This is a proper subject of gang expert testimony, and Schaeffer presented it in an admissible manner, i.e., by answering a hypothetical question based on other evidence that the prosecutor had presented. (See People v. Gonzalez (2006) 38 Cal.4th 932, 946947.) Because Detective Schaeffers testimony was admissible, Harriss trial counsel was not required to object to the questions that the prosecutor posed, or move to strike Schaeffers responses.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
McDONALD, j.