Opinion
D072740
11-21-2018
THE PEOPLE, Plaintiff and Respondent, v. MUAZ K. HUSSEIN et al., Defendants and Appellants.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant Muaz Hussein. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Gowolo. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD270233) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant Muaz Hussein. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Gowolo. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Daniel Gowolo and Muaz K. Hussein (Appellants) of three counts of robbery (Pen. Code, § 211), two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and one count of vandalism of more than $400 worth of property (§ 594, subds. (a), (b)(1)). In addition, the jury convicted Gowolo of one count of providing false identification to a police officer (§ 148.9, subd. (a)), and Gowolo admitted the allegation that he had suffered two prison priors (§§ 667.5, subd. (b), 668).
Further unidentified statutory references are to the Penal Code.
Appellants argue that their convictions should be reversed on the following grounds: (1) the trial court erred in admitting evidence suggesting that Appellants and two additional codefendants had gang affiliations; and (2) the trial court erred in denying Appellants' motion in limine to exclude evidence of two of the victims' curbside identifications of Appellants that took place shortly after the attack. In the alternative, Hussein contends that he is entitled to a new sentencing hearing because the trial court based his sentence on an erroneous application of the law dealing with ineligibility for probation.
As we explain, (1) the trial court did not abuse its discretion in admitting the evidence related to gangs; (2) Hussein did not bring a motion to exclude (or otherwise object to) the evidence of the curbside identifications; (3) Gowolo forfeited appellate review of his motion to exclude the evidence of the curbside identifications; (4) the court did not abuse its discretion in denying probation to Hussein; and (5) even if the court erred in its understanding of Hussein's eligibility for probation, any such error was harmless. Accordingly, we affirm the judgment.
I. FACTUAL BACKGROUND
In early January 2017, three young men from the Midwest visited San Diego. In celebration of a birthday, Victim 1, his cousin Victim 2, and their friend Victim 3 (together Victims) had rented a car and driven to the West Coast for a week. They arrived in San Diego the evening of January 4, and the relevant events, including the attack that resulted in the charges and convictions, all took place on January 5, 2017.
After the Victims had breakfast, they drove to a bank and withdrew cash from an ATM. From there, they drove to a strip mall on the corner of 47th Street and El Cajon Boulevard to make a purchase from a retail business that Victim 1 had visited on a prior trip to San Diego. They parked their car and went to the storefront, but the business was closed permanently. The Victims returned to their rental car, a white Toyota RAV 4 (a small SUV), and began scrolling on their cell phones to find a similar retail business. Still parked in the lot of the strip mall, Victim 1 was in the front passenger's seat, Victim 2 was in the middle of the back seat, and Victim 3 was in the driver's seat.
Suddenly, with no advance warning, two windows of the Victims' SUV were smashed—first the rear window, followed immediately by the passenger side rear window. Just as suddenly, a group of five to 10 African and African-American men surrounded the Victims' SUV, opened the doors, physically attacked the Victims, and stole the Victims' property from inside the SUV—including, but not limited to, luggage, backpacks, cell phones, shoes, clothing, and a drone remote controller.
Victim 1 described at least seven attackers; Victim 3 thought that 10 people attacked them; two uninvolved eye witnesses estimated that seven to eight people attacked the Victims; and another uninvolved eyewitness said that five or six people attacked the Victims.
Victim 1 testified at trial that one of the attackers opened the door and two assailants began punching him while he was still seated in the vehicle. They grabbed his cell phone and pulled the shoes off his feet, as he was kicking in an effort to protect himself. The two who were attacking Victim 1 were screaming " 'where's the money' " and "some sort of 'ED' something." From behind the SUV, a third assailant—who was wearing a red sweatshirt—threatened Victim 1 by covering up what could have been a gun and saying " 'don't make me pull it.' " Victim 1 saw Victim 2 fighting off two or three attackers in the back seat, as Victim 3 fled from the front seat with at least two assailants chasing after him.
Victim 1 understood "ED" to mean "East Diego."
At various times, different witnesses described an assailant who was wearing a red sweatshirt, a red sweater, a red hoodie, or a red Polo shirt. These references appear to be to the same person wearing the same article of outer clothing. Witnesses also described other attackers who wore red.
Victim 2 testified that, in smashing the passenger side rear window, the attackers threw rocks in socks and beer bottles into the vehicle. After the windows to the SUV were smashed, assailants opened both of the side rear doors and began punching Victim 2, ultimately dragging him out of the vehicle as they continued to hit and kick him. During the attack, Victim 2 heard the attackers yelling: "gang names and stuff"; " 'Crips, Crips' "; "Bloods"; " 'Run your pockets' "; and " 'I'm going to shoot you.' " Victim 2 saw that Victim 3 had gotten out of the car and that Victim 1 was being attacked by two others as they took his cell phone. During the melee, Victim 2 was injured to such an extent that he was taken to the hospital by paramedics who were called to the scene.
Victim 2 understood " 'run your pockets' " to mean "Give me whatever . . . you got in your pocket[s]. Take out everything."
Victim 2 suffered two injuries: a broken finger that required a cast for three months, and a cut to the area by his left shoulder and bicep.
Victim 3 testified that, after the SUV's windows were smashed, he opened the driver's door and jumped out. One of the attackers—who, according to Victim 3, was wearing a red sweatshirt (see fn. 4, ante)—punched Victim 3. During this time, Victim 3 heard the following being yelled by some of the assailants: "Gang signs [sic], East San Diego, Blood gang, Crip gang." As others approached Victim 3 from different directions, he outran them, ultimately leaving the parking lot and crossing the street to a convenience store, where he was able to call 911. By the time Victim 3 returned to the SUV, the assailants had scattered, and he found that Victims 1 and 2 had been injured and that personal property from the SUV had been taken.
Once the police arrived and began their investigation, they were able to track the location of Victim 1's cell phone by use of a global positioning system application. They traced the phone to a vehicle a few miles away, and other officers in the area located and detained the vehicle. The officers arrested its four occupants—driver Gowolo and passengers Hussein, Mohammed Ali, and Elie Kabandauli (together Defendants). When the police arrested Gowolo, he provided a false name to one officer and refused to identify himself to another officer.
The arresting officers communicated with the investigating officers at the parking lot of the strip mall, who then drove Victim 1 and Victim 3 to the scene of the arrest to conduct a curbside identification—sometimes known as a curbside lineup or a show-up—of the four suspects. Victim 1 and Victim 3 each identified all four suspects as part of the group that had attacked them and taken their personal property.
Victim 2 had been taken to the hospital.
II. PROCEDURAL BACKGROUND
Within days of the arrests in January 2017, the District Attorney filed a felony complaint, alleging the following charges against each of Defendants: three counts of robbery (§ 211; counts 1-3, one count for each of the Victims); two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); counts 4-5, one count each for injuries to Victims 1 and 2); and one count of vandalism of property worth more than $400 (§ 594, subds. (a), (b)(1); count 6). In addition, the District Attorney charged Gowolo with one count of false impersonation (§ 529, subd. (a)(3); count 7). Finally, the complaint contained various special allegations against certain of Defendants on counts 1-6 and specified two prison priors for Gowolo and another of Defendants.
As relevant to the underlying trial and the issues on appeal, following the preliminary examination in June 2016, the District Attorney filed an amended information, alleging the following charges: as to Hussein, three counts of robbery (§ 211; counts 1-3), two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); counts 4-5), and one count of vandalism of more than $400 worth of property (§ 594, subds. (a), (b)(1); count 6); as to Gowolo, the same six felony counts, plus one misdemeanor count of providing false information to a police officer (§ 148.9, subd. (a); count 7) and two prison priors (§§ 667.5, subd. (b), 668).
A posttrial probation department report indicates that, prior to the amended information, the proceedings against Ali were continued to allow for a competency hearing, and Kabandauli pleaded guilty to one count of robbery and one count of assault by means likely to cause great bodily injury.
Appellants' trial took place over the course of seven days in July and August 2017. The jury returned guilty verdicts on all counts as to both Appellants, and Gowolo admitted the two prison priors.
At sentencing, the court found Hussein ineligible for probation, stating that "this is not a probation case. It's a prison case. The question is, how long?" The court then sentenced Appellants to prison: Gowolo for five years, and Hussein for three years.
The court sentenced Gowolo to the upper term of five years on count 1 (§ 211; robbery), plus the upper term on the remaining five felony counts and 180 days on the misdemeanor count to run concurrently, and imposed restitution and various fines, fees, and penalties. The court struck the two prison priors.
The court sentenced Hussein to the middle term of three years on count 1 (§ 211; robbery), plus the middle term on the remaining five counts to run concurrently, and imposed restitution and various fines, fees, and penalties.
Gowolo and Hussein each timely appealed. In his opening brief on appeal, Hussein joined in Gowolo's opening brief. (See Cal. Rules of Court, rule 8.200(a)(5).) By separate application, we approved Gowolo's request to join arguments I. (gang evidence) and II. (curbside identifications) of Hussein's opening brief. (Ibid.) Although we broadly permit joinder (ibid.), each appellant has the individual burden of establishing error and prejudice. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11 (Nero).)
III. DISCUSSION
On appeal, we presume the judgment is correct (People v. Giordano (2007) 42 Cal.4th 644, 666), and Gowolo and Hussein, as appellants, have the burden of establishing reversible error (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364).
Gowolo and Hussein both challenge the admission of evidence related to gangs and to the curbside identifications of them. In the alternative, Hussein contends that, by presuming he was ineligible for probation, the court erred in sentencing him to prison. As we explain, neither Gowolo nor Hussein met his respective burden of establishing reversible error. A. The Motions in Limine
Motions and trial were set for July 24, 2017. On that date, Gowolo filed a trial brief that contained 14 motions in limine, a memorandum of points and authorities that contained legal arguments in support of the motions, and a factual presentation based on the transcript from the preliminary examination.
As pertinent to the issues on appeal, Gowolo moved to exclude: "any and all gang evidence as irrelevant and pursuant to [Evidence] Code section 352"; and the "curbside identifications of Daniel Gowolo." After listening to argument from counsel for Gowolo and the People, the court denied both of these motions (and ruled on more than 15 additional motions in limine filed by Gowolo and the People).
1. Hussein Forfeited Appellate Review of the Trial Court's Rulings on Gowolo's Motions in Limine
Despite presenting substantive arguments on appeal, Hussein did not file any motions in limine. Although Hussein joined the in limine motions Gowolo filed before a different judge, he did not join Gowolo's in limine motions that resulted in the rulings on appeal. Significantly, as applicable to the rulings and thus the issues in this appeal, the record contains no indication that Hussein or his attorney was involved. Not only is there no written request by Hussein for any particular ruling (or joinder in any of Gowolo's requests for rulings), from the beginning of the hearing on Gowolo's motions in limine until the court's rulings on Gowolo's motions, counsel for Hussein did not speak.
The trial proceedings began on June 19, 2017, before Judge O'Neill. For reasons unrelated to any issue on appeal, the matter was continued until early July, when it was reassigned to Judge Fraser for motions and trial. Gowolo filed new and different motions in limine before Judge Fraser, and those are the motions at issue in this appeal.
Accordingly, because he did not participate in the in limine proceedings that resulted in the rulings he challenges in this appeal, Hussein has forfeited any arguments on appeal related to Gowolo's in limine motions. (People v. Pinholster (1992) 1 Cal.4th 865, 931 ["a failure formally to move for [relief] . . . constitutes a waiver of the issue on appeal"], overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Miranda (1987) 44 Cal.3d 57, 77-78 [by failing to file a motion or to join in codefendant's motion, defendant "has waived any objection and may not now claim [error] resulting in prejudice to him"], overruled on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
In any event, as we explain at footnotes 20 and 21, post, even if we assume that the record on appeal supports the suggestion that Hussein properly joined in Gowolo's motions in limine, the outcome in Hussein's appeal would be no different.
2. The Trial Court Did Not Err in Allowing Evidence Related to Gangs
At trial, the jury heard evidence regarding street gangs, even though no gang-related crimes or allegations were at issue. Gowolo argues that his conviction should be reversed, because the admission of such evidence was prejudicial. As we explain, Gowolo did not meet his burden of establishing reversible error.
a. Additional Background
Gowolo moved in limine to exclude "any and all gang evidence as irrelevant and pursuant to [Evidence] Code section 352." In support, Gowolo argued: The original charges against Gowolo included section 186.22 gang enhancement allegations; following the preliminary examination, the court dismissed the section 186.22 gang enhancements against Gowolo; in "transcripts of body worn camera footage[,] . . . witnesses mention potential gang involvement and hearing the words 'Crips' and/or 'Bloods' "; evidence that a defendant is a member of a gang "is highly prejudicial in that it may have a 'highly inflammatory impact' on the jury"; and "[b]ecause gang involvement is not an element of a crime nor any enhancement charged in this case, there is no probative value in allowing this evidence to come in at trial, and the prejudicial effect of allowing gang evidence in this case is extreme."
The original complaint against Gowolo contained allegations of a section 186.22, subdivision (b)(1) gang enhancement attached to counts 1-6 (three counts of robbery, two counts of assault, and one count of vandalism). The version of that statute in effect in 2017 provided generally that "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished" by an additional term of two to 10 years, depending on the underlying felony. (Stats. 2016, ch. 887, § 1.)
In opposition to Gowolo's motion, the People argued that the Victims' testimony as to what they heard when they were being attacked—i.e., unknown assailants yelling gang names and threats—was relevant to the prosecution's effort to establish the requisite force or fear by Gowolo for purposes of proving the robberies.
Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Italics added.) CALCRIM No. 1600, according to which the jury in this case was instructed, includes the requirement that the jury find "[t]he defendant used force or fear to take the property or to prevent the person from resisting." (Italics added.)
The court denied Gowolo's motion, ruling that, under Evidence Code section 352, the gang evidence—i.e., the gang evidence of which the court was aware at the time of the motion in limine—was admissible. In doing so, the court stated that, if counsel wanted to submit a limiting instruction, the court would tell the jury that "[Gowolo and Hussein] are not gang members or you can say this is not gang-related" or "[a specific] piece of evidence is only being limited to show this particular theory that there's force or fear"; but "however you want to do it[,] I'll leave that to you." Later during the in limine proceedings, the court granted the People's motion to admit the transcripts of the 911 calls that contain gang references, reminding defense counsel: "You can, like I say, draw up your limiting instruction and we can take care of it with that." (Italics added.)
In denying Gowolo's motion, the court stated: "[T]he attorneys can talk to the jurors about the fact this is not a gang case. But, apparently, during the robbery, the robbers — whoever they may be — used the word 'Crip' or 'Blood,' and that I'm going to allow in, but the jurors will know [Gowolo and Hussein] are not gang members and this is not a gang-related incident. [¶] . . . [¶] I think we talked about this briefly in chambers. I think the parties are going to stipulate this isn't a gang case. The only thing that is gang-related about it is apparently during the robberies somebody was yelling 'Blood' and 'Crip.' And the DA's theory is that was done to instill fear as part of the robbery, which there's a certain logic to that."
Defense counsel never submitted a limiting instruction. However, at trial Appellants received the same benefit as a limiting instruction by the use of a stipulation and general jury instruction. Counsel for Gowolo and the People entered into the following stipulation, which was read to the jury and submitted to the jury in writing as a trial exhibit: "[I]t is hereby stipulated by all parties that you have heard testimony that witnesses heard the words 'Crips' and/or 'Bloods' during the incident on January 5th, 2017. You're not to assume or infer based on this testimony that either defendant is involved with gang activity or is a member of any gang." Correspondingly, the court instructed the jury: "During the trial, you were told the People and the defense agreed or stipulated to certain facts. This means that they both accept those facts as true. As there is no dispute about the facts, you must accept them as true."
Even though we do not reach the merits of Gowolo's challenge to the admission of the gang evidence at trial, we find disingenuous his suggestion that, at trial, "the court failed to give the limiting instruction it had offered to give to direct that the gang-related evidence be used by jurors solely to determine whether its effect was to elicit fear during the incident." (Italics added.)
b. Law
Evidence Code section 352, the basis on which Gowolo brought his motion to exclude gang evidence as unduly prejudicial, provides as applicable here: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352, subd. (b).)
" '[E]vidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues' " can be excluded as unduly prejudicial under Evidence Code section 352. (People v. Karis (1988) 46 Cal.3d 612, 638 (Karis).) Similarly, evidence that "poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' " of the case may be prohibited. (People v. Jablonski (2006) 37 Cal.4th 774, 824.) If the nature of the evidence is such that it ignites or arouses the emotions of the jury, in contrast to providing information that can logically be used to assess the issues before the tribunal, it may be excluded as prejudicial. (People v. Henriquez (2017) 4 Cal.5th 1, 28.) However, " 'prejudicial' is not synonymous with 'damaging.' " (Ibid.) The prejudice contemplated by Evidence Code section 352 is not the damage caused to the defendant that " 'naturally flows from' " probative and relevant evidence. (People v. Case (2018) 5 Cal.5th 1, 43 (Case); accord, Karis, at p. 638.) The key consideration is whether the evidence inflames the emotions of the jury to such an extent that it punishes the defense due to the emotional reaction. (People v. Valdez (2012) 55 Cal.4th 82, 145.)
The trial court is vested with "wide discretion in determining the admissibility of evidence." (Karis, supra, 46 Cal.3d at p. 637.) An appellate court should not disturb the trial court's exercise of discretion under Evidence Code section 352 absent a showing of "a clear abuse"—i.e., "unless the prejudicial effect of the evidence clearly outweighs its probative value." (Karis, at p. 637.)
c. Analysis
At trial, neither Gowolo nor Hussein objected to any of the People's evidence related to gangs. Before we reach the merits of Gowolo's arguments to determine whether the trial court abused its discretion, we must first determine how, if at all, the failure to object at trial affects the arguments Gowolo presents in his appeal.
Although one of Gowolo's motions in limine requested a ruling that, for each evidentiary objection presented during in limine motions, there be a continuing objection to the admission of such evidence during trial, the record does not indicate either that the court ruled on the motion or that Gowolo requested a ruling on the motion. Gowolo, as the proponent of a motion in limine, had the obligation to secure a ruling from the court. (People v. Ramos (1997) 15 Cal.4th 1133, 1171 (Ramos).)
i. Failure to Object at Trial
As a general rule, even " 'when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal. (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3 [(Jennings)]; see also People v. Turner (1990) 50 Cal.3d 668, 708; People v. Mattson (1990) 50 Cal.3d 826, 849-850; People v. Boyer (1989) 48 Cal.3d 247, 270, fn. 13.)' '' (People v. Morris (1991) 53 Cal.3d 152, 189 (Morris), disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) There is an exception, however, and an in limine motion will preserve the issue for appeal, if the motion satisfies the requirements of Evidence Code section 353, subdivision (a). (Morris, at p. 190.) A motion in limine meets the requirements of Evidence Code section 353, subdivision (a), only when: "(1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context." (Morris, at p. 190.)
Evidence Code section 353 provides in part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion."
Where, as here, the evidence at trial may be different than the evidence (or offer of proof) at the hearing on the motion in limine, a renewed evidentiary objection at trial is necessary to comply with the requirements of Evidence Code section 353. (Morris, supra, 53 Cal.3d at pp. 189-190 ["Actual testimony sometimes defies pretrial predictions of what a witness will say on the stand."].) That is because, " '[u]ntil the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility.' " (Id. at p. 190, italics added, quoting from Jennings, supra, 46 Cal.3d at p. 975, fn. 3.)
A comparison of the evidence at trial on which Gowolo relies on appeal (see pt. I., ante) and the showing Gowolo made in support of his motion in limine (see pt. III.A.2.a., ante) confirms that the motion was not directed to a particular identifiable body of evidence that would have allowed the trial court to determine the evidentiary question in the same context as it was presented at trial. (Morris, supra, 53 Cal.3d at pp. 189-190.) Accordingly, unlike the defendant in Morris, here Gowolo was required to renew the evidentiary objection (or to move to strike the evidence) at trial in order to preserve appellate review. (Id. at p. 190.) Having failed to do so, Gowolo forfeited appellate review of any issues related to the admission of the gang evidence at trial. (Id. at p. 187; People v. Woodruff (2018) 5 Cal.5th 697, 759; Evid. Code, § 353, subd. (a).)
In Morris, the evidence the defendant sought to be excluded was the testimony of two witnesses "based on allegedly coercive terms in their written plea agreements." (Morris, supra, 53 Cal.3d at p. 189.) The defendant's in limine motion "was directed to an identifiable body of evidence"—namely, the existing written plea agreements—and was presented "at a time when the trial judge could give fair consideration to the admissibility of the evidence in its context." (Ibid.) Nothing happened at trial, before the challenged evidence was offered, to change this context sufficiently to constitute a basis for reconsidering the in limine ruling. (Ibid.)
Thus, we will review what was before the court in support of and in opposition to the motion in limine at the time the court ruled on the motion to determine whether the court abused its discretion.
ii. No Abuse of Discretion
In cases not involving a gang enhancement (like the present one), our Supreme Court has held that "evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; see People v. Cardenas (1982) 31 Cal.3d 897, 904-905.) That said, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense." (Hernandez, at p. 1049.)
On appeal, Gowolo admits that the showing of force or fear was an "essential issue," but suggests that the gang evidence was "unnecessary" to meet this burden, because it "could have been established by stipulation." Without a showing that he offered to enter into such a stipulation, the speculative argument Gowolo presents is frivolous; i.e., without actually stipulating that the Victims' personal property was taken by force or fear, the trial court could not have included such a fact when it balanced undue prejudice and probative value under Evidence Code section 352.
Moreover, in denying Gowolo's motion, the court expressly stated that defense counsel could submit a proposed instruction that would tell the jury that Gowolo and Hussein are not gang members, that this case is not gang-related, and that any particular item of gang-related evidence is offered for the limited purpose of attempting to establish the prosecution's theory that force or fear was involved in the taking of the Victims' personal property.
In short, Gowolo was not prejudiced or treated unfairly simply because the prosecution introduced evidence of the defendant's guilt. (People v. Mendoza (2000) 24 Cal.4th 130, 179 [gang evidence highly probative to prove element of robbery offense charged]; Case, supra, 5 Cal.5th at p. 43.) On this record, therefore, Gowolo did not meet his burden of establishing that the trial court abused its discretion in denying Gowolo's motion in limine to exclude gang evidence.
Because the trial court did not abuse its discretion in denying Gowolo's in limine motion, Hussein has not been prejudiced by his trial attorney's failure to have joined in the motion.
3. Gowolo Forfeited Appellate Review of the Denial of His Motion in Limine to Exclude Evidence of the Curbside Identifications
At trial, the jury received testimonial and documentary evidence regarding Victim 1's and Victim 3's curbside identifications of Gowolo and Hussein. Gowolo argues that his conviction should be reversed because the evidence of the curbside identifications at trial was based on "highly suggestive circumstances"—making the identifications unreliable in violation of his due process rights under the federal and state constitutions. (Capitalization and bolding omitted.) As we explain, by not objecting in the trial court based on the specified federal constitutional provisions, Gowolo forfeited appellate review of the admissibility of this evidence on this basis.
a. Additional Background
Gowolo moved in limine to exclude evidence of the "curbside identifications of Daniel Gowolo" on the basis that the identifications contained "unreliable hearsay." Consistently, in his points and authorities in support of the motion, Gowolo described his motion as one "to exclude [the] curbside identifications of Daniel Gowolo as unreliable hearsay." (Bolding and some capitalization omitted.) More specifically, Gowolo argued that, although Evidence Code section 1238 provides for an exception to the hearsay rule for out-of-court identifications of a defendant, the criteria for an application of this exception were not present here.
Because Gowolo's in limine motion was directed solely to the evidence surrounding the curbside identifications of Gowolo, Hussein has not been prejudiced by his trial attorney's failure to have joined in the motion.
Evidence Code section 1238 provides in full: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and: [¶] (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; [¶] (b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and [¶] (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time." (Italics added.)
At the hearing on the motion, Gowolo's attorney reaffirmed that, "under the circumstances[,] . . . the hearsay exception pursuant to Evidence Code Section 1238" is inapplicable.
The prosecutor orally replied that the hearsay exception contained in Evidence Code section 1238 did apply, arguing that "this is an identification [of] a party made at a time shortly after the crime, and [the two victims will] be able to testify it was . . . their true and accurate opinion of the identification."
The People did not have the opportunity to file a written response, since Gowolo filed his motion and the court ruled on the motion on the first day of trial.
The court denied Gowolo's motion to exclude the curbside identifications, expressly ruling, "that's why we have [Evidence Code section] 1238." The court explained that the types of inconsistencies argued by counsel for Gowolo go "more [to] weight than admissibility."
Finally, during trial, at a time when the prosecutor was questioning a police officer regarding a form that Victim 1 signed as part of his curbside identification of Gowolo, counsel for Gowolo interposed a hearsay objection. The court overruled the objection without further argument or comment.
b. Forfeiture of Appellate Argument
Despite the basis of the in limine motion, the court's ruling on the motion, and the evidentiary objection at trial, Gowolo's appellate brief neither contains the word "hearsay" nor mentions Evidence Code section 1238. Instead, for the first time, in his brief on appeal, Gowolo contends that the introduction into evidence of the curbside identifications at trial violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. In arguing that the identification procedure used here was unduly suggestive in violation of his due process rights, Gowolo relies on the police having told Victims 1 and 3, prior to receiving their curbside identifications of Defendants: that the police had tracked Victim 1's cell phone to a specific vehicle by using a global positioning system application; that the vehicle the police stopped matched the description of one used by the attackers when they fled; that the vehicle the police stopped was located behind the Defendants at the time of the identifications; and that the police had caught the suspects.
Gowolo does not argue on appeal that the trial court erred either in denying Gowolo's motion in limine or in overruling Gowolo's evidentiary objection at trial based on the application of Evidence Code section 1238.
Under well-established authority, however, because Gowolo failed to raise these constitutional objections in the trial court, he has forfeited appellate review of the issue. (People v. Tully (2102) 54 Cal.4th 952, 979-980 (Tully); People v. Kipp (2001) 26 Cal.4th 1100, 1122, 1125; People v. Earp (1999) 20 Cal.4th 826, 882; Ramos, supra, 15 Cal.4th at p. 1172; People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 (Benson).) " '[A] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct,' " especially where, as here, the new argument invokes " 'legal standards different from those the trial court itself was asked to apply.' " (Tully, supra, 54 Cal.4th at pp. 979-980.) This is merely a more specific application of the general rule that a "defendant's failure to make a timely and specific objection on the ground he now raises forfeits the claim on appeal." (People v. Pearson (2013) 56 Cal.4th 393, 416.) The purpose of requiring a specific objection is to "inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling." (People v. Partida (2003) 37 Cal.4th 428, 435 [explanation of the "need for a specific objection" where trial objection based on relevance and appellate argument based on due process violation].)
At oral argument on appeal, the Attorney General suggested that, even though Gowolo's motion in limine mentioned only a hearsay objection, since his memorandum of points and authorities cited and discussed cases dealing with the reliability of unduly suggestive curbside identifications, in fact Gowolo preserved a constitutional objection. We disagree.
Consistent with the written motion, during oral argument, without any mention of a potential constitutional violation, Gowolo's attorney concluded her presentation as follows using the same language as in her written submission: "So, Your Honor, I think under the circumstances not only was [the curbside identification] highly suggestive, but I think the reliability is not there to allow the hearsay exception pursuant to Evidence Code Section 1238." (Italics added.) On this record, Gowolo cannot be credited with having given either the court or the prosecutor notice and an opportunity to consider and respond to a constitutional objection. (See fn. 23, ante.) The written argument and the entirety of the oral argument—and, consistently, Gowolo's later objection during trial—focused solely on hearsay.
In Benson, for example, prior to the penalty phase following the defendant's conviction of multiple murders, the defendant moved in limine to exclude evidence of the conduct underlying his prior felony convictions. (Benson, supra, 52 Cal.3d at p. 787.) He argued that such evidence was not relevant to any issue material to the penalty under section 190.3, which sets forth what the trier of fact should consider in determining whether a defendant who is convicted of first degree murder with a true finding of a special circumstance should be sentenced to death or life in prison without the possibility of parole. (Benson, at p. 787.) The court ruled that the evidence was relevant under section 190.3, denied the motion in limine, and admitted the challenged evidence without significant objection by the defendant. (Ibid.) On appeal, in addition to arguing that the trial court erred in making its relevance determination, the defendant—like Gowolo here—also contended the admission of the evidence violated his constitutional guarantee of due process under the Fifth and Fourteenth Amendments of the United States Constitution. (Benson, at p. 788.) Our Supreme Court "reject[ed] the point on procedural grounds. Defendant failed to put forth a sufficient constitutional argument when he made his motion in limine. He also failed to make a sufficient constitutional objection when the People introduced the specific evidence. Accordingly, he may not raise the underlying claim here." (Ibid.)
Likewise, here, in the language of the Benson opinion, because Gowolo "failed to put forth a sufficient constitutional argument when he made his motion in limine . . . [and] also failed to make a sufficient constitutional objection when the People introduced the specific evidence . . . , he may not raise the underlying claim here." (Benson, supra, 52 Cal.3d at p. 788.) B. Hussein Did Not Meet His Burden of Establishing Reversible Error in Sentencing
Hussein contends that, because the trial court erroneously believed that he was statutorily ineligible for probation, the court was unable to exercise an informed discretion when deciding whether to grant probation. Hussein asks that we remand the matter for a new sentencing hearing. As we explain, the record does not support Hussein's contention that the court relied on the erroneous information in exercising its discretion; and, even if we assume the court erred, any such error is harmless on the present record.
1. Additional Background
Both the People's sentencing statement and the probation department's report advised the trial court that Hussein was presumptively ineligible for probation under section 1203, subdivision (e). Relying on subdivision (e)(1), the People stated that Hussein had previously been convicted of robbery, but failed to discuss, let alone substantiate, whether he was armed. Relying on subdivision (e)(3), the probation department failed to explain how, or even whether, Gowolo willfully inflicted great bodily injury during his attack on the Victims.
Section 1203, subdivision (e) provides in part: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:
"(1) . . . [A]ny person who has been convicted of . . . robbery . . . and who was armed with the weapon at either of those times. [¶] . . . [¶] (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted."
In sentencing Hussein, the court began its remarks by commenting that "there are certain things the Court has to take into consideration. First of all, he is presumptively ineligible for probation." (Italics added.) The court then described the seriousness of the crimes—including the number of victims and the extent of the physical violence the victims suffered—and Hussein's involvement as "an active participant." The court concluded by stating that, although Hussein did not have a significant criminal record, "this is not a probation case. It's a prison case. The question is, how long?" (Italics added.) In answering its question, immediately before imposing the prison sentence, the court again commented on the extent of the physical assault and the number of victims, emphasizing that "this is the type of crime that society cannot tolerate."
2. No Reversible Error
We review for an abuse of discretion a trial court's decision whether to grant or deny probation, and " '[a]n order denying probation will not be reversed in the absence of a clear abuse of discretion.' " (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091 (Ferguson).) In our appellate review of a sentence, " 'a trial court is presumed to have acted to achieve legitimate sentencing objectives in the absence of a clear showing the sentencing decision was irrational or arbitrary.' " (Ibid.) Nonetheless, "a discretionary sentencing decision rendered by a judge who did not understand what he was doing would not be sustainable as a proper exercise of discretion." (In re Large (2007) 41 Cal.4th 538, 550.)
The People argue that, based on the court's description of the physical violence suffered by the victims, the court "agreed with the probation department's determination" that Hussein willfully inflicted great bodily injury for purposes of section 1203, subdivision (e)(3). The People further argue that the court also "could have found" that Hussein was armed with a weapon during the robbery for purposes of section 1203, subdivision (e)(1), and the People's sentencing statement. The problem with People's presentation is that, regardless what the court may have agreed with or could have found, the record contains no evidence that Hussein—as opposed to any of the other assailants—inflicted great bodily harm or was armed with a weapon. Accordingly, we agree with Hussein that both the People's sentencing statement and the probation department's report erroneously state that Hussein is presumptively ineligible for probation under section 1203, subdivision (e). Thus, we also agree with Hussein that the court began the sentencing hearing with the erroneous statement that Hussein was presumptively ineligible for probation under section 1203, subdivision (e).
Contrary to the Attorney General's argument, the fact that Hussein was convicted of assault by means likely to produce great bodily injury does not establish, or even provide a basis for inferring, that he in fact did produce great bodily injury. --------
Nonetheless, we cannot say that the court abused its discretion by ruling that "this is not a probation case. It's a prison case." Very simply, there is no indication that the court relied on the erroneous application of section 1203, subdivision (e), in denying probation. To the contrary, immediately prior to denying probation, the court made detailed findings as to the seriousness of the crimes and Hussein's active involvement in the crimes—findings that do not support probation. Consistently, the court ruled that this was a "prison case," stressing that these crimes are "the type . . . that society cannot tolerate."
We find support for our position in Ferguson, supra, 194 Cal.App.4th 1070. There, the court sentenced the defendant to state prison while under the erroneous belief that he was ineligible for probation under section 12022.53, subdivision (g), which at the time provided that "probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person found to come within the provisions of this section." (Ferguson, at p. 1092; see Stats. 2010, ch. 711, § 5.) The appellate court nonetheless affirmed the prison sentence, since the record also contained other valid reasons for denying probation. (Ferguson, at p. 1092 ["A single valid reason suffices to justify a sentencing choice."].) Likewise, here, independent of a presumptive ineligibility for probation under section 1203, subdivision (e), the record also contains other valid reasons for denying probation—namely, the sentencing court's findings regarding Hussein's active involvement in serious crimes against multiple defendants.
We find further support for our position based on the argument Hussein asserts on appeal. We begin with the understanding that " ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was [an abuse of discretion]." '" (People v. Carmony (2004) 33 Cal.4th 367, 376.) Hussein, the party with this burden, tells us that the case should be remanded for a new sentencing hearing because "it cannot be determined whether . . . [the court's] sentencing choices were influenced by this mistake of law" regarding presumptive ineligibility for probation. (Italics added.) Thus, according to Hussein, because "it cannot be determined" whether the sentencing court abused its discretion (by applying an incorrect legal standard), Hussein has not established error on appeal. " ' "In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (Carmony, at pp. 376-377.)
For these reasons, Hussein did not meet his burden of establishing that the trial court abused its discretion in denying probation.
In any event, even if we assume that the court denied probation based on the erroneous statement that Hussein was presumptively ineligible for probation, any such error is harmless. Error requires a reversal only if it results in a miscarriage of justice or affects a defendant's substantial rights. (Cal. Const., art. VI, § 13; § 1258.) Applying that standard here, we must affirm Hussein's sentence unless we are convinced there is a reasonable probability that a result more favorable to Hussein would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Fisher (1965) 234 Cal.App.2d 189, 192-193 [application of Watson standard to review of a sentence following error by the sentencing court].) Hussein has the burden of demonstrating the requisite prejudice. (Nero, supra, 181 Cal.App.4th at p. 510, fn. 11.)
As urged by Hussein, we acknowledge the various facts in the record that might support a more favorable outcome. However, the sentencing court did not cite or rely on those facts in denying probation. To the contrary, the court twice emphasized Hussein's active involvement in serious crimes against multiple defendants, concluding that "society cannot tolerate" crimes like Hussein committed. On this record, even if the court denied probation by erroneously applying the presumption in section 1203, subdivision (e), Hussein did not meet his burden of establishing that there is a reasonable probability that, upon a remand for a new sentencing hearing, he would receive a more favorable sentence.
IV. DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: O'ROURKE, Acting P. J. GUERRERO, J.