Opinion
B206735
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. RODERICK MILNER, Defendant and Appellant.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
The jury found defendant Roderick Milner guilty of the first degree murder of Darnell Humphrey (Pen. Code, § 187, subd. (a)) and the attempted murder of Maurice Edwards (§§ 664, 187, subd. (a)), finding defendant committed the offenses by personally and intentionally firing a handgun (§ 12022.53, subd. (d)) and for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant received a total term of 50 years to life for the murder and the firearm enhancement, plus 10 years for the gang enhancement. A concurrent term of 25 years to life was imposed for the attempted murder.
For ease of reference, we will refer to the parties by their first names with the exception of defendant.
All further statutory references are to the Penal Code.
Before trial began, defendant entered a guilty plea to the informations third count, unlawful firearm activity (§ 12021, subd. (c)(1)), and received a two-year concurrent term.
In his timely appeal, defendant contends (1) his attempted murder conviction must be reversed because there was constitutionally insufficient evidence of defendants specific intent to kill Maurice; (2) the admission of testimony by Deputy Medical Examiner Vadims Poukens, as to the murder victims autopsy results, violated defendants right to confront witnesses under the Sixth Amendment and the state evidentiary law proscription against an expert witness testifying on direct examination as to the content of reports prepared by a nontestifying expert; (3) there was constitutionally insufficient evidence to support the gang enhancement as to the attempted murder of Maurice; (4) the trial courts imposition of the 10-year gang enhancement, rather than a 15-year minimum parole eligibility date, resulted in an unauthorized sentence; and (5) the court failed to credit him with the actual time he spent in custody prior to sentencing.
We agree with defendants sentencing contentions, but otherwise affirm.
STATEMENT OF FACTS
On July 21, 2006, at approximately 9:45 p.m., Maurice Edwards was with his best friend, Darnell Humphrey, in an alley near the Humphrey familys apartment on 3381 Andy Street in Long Beach. Andy Street is a quarter mile long dead end street lined by two-story apartment buildings. It was well lighted. Defendant, an African-American male wearing a white shirt and a blue Milwaukee Brewers baseball cap, approached Maurice and Darnell, asking whether they were "from the two Ns." As Maurice understood it, defendant was referring to a gang called "Naughty and Nasty." Darnell answered that they were not. When defendant asked if he was sure, Darnell repeated his denial. Defendant walked away; Maurice and Darnell remained in the alley. Within 10 minutes, Maurice heard some people arguing on Andy Street. He and Darnell walked in that direction. Maurice saw Jerome Joseph and Richard Theus arguing. Jerome was complaining that Richard, who was dressed in the color of the Boulevard Crips, had made improper gestures at him.
A Milwaukee Brewers baseball cap found at the scene contained defendants DNA.
When interviewed in the hospital after the shooting incident, Maurice said that defendant pulled up his shirt to reveal a handgun in his waistband, before asking where they were from.
Jerome and Richards argument escalated into a fistfight. Bystanders joined in the fighting. Across the street, defendant fought with Darnells brother, Trevelle. Jerome was getting kicked in the head. Maurice and Darnell tried to pull Jeromes assailants away. They eventually did so and carried the unconscious Jerome into the Humphrey apartment. Maurice went back outside and saw defendant, Richard, and another male walking toward the apartment. They were facing Darnell, Trevelle, and their mother, who were backing up into the apartment. Maurice stood behind Darnells right shoulder. Defendant pulled out a gun and fired towards Darnell. Defendant was facing them, fewer than five steps away from Maurice. Maurice and the Humphreys "took off running." Darnell collapsed on the apartment floor, bleeding from his chest and stomach. As Maurice began applying first aid, he noticed that he himself had been shot in the arm.
Jaunte Humphrey testified that the fistfight began between Jerome and Richard. Richard said, "Fuck 2 Ns" and made other gang-related statements. When Jerome got "the best of Richard," the latters friends came to his aid and others joined in. Jaunte saw defendant fighting with his younger brother Trevelle. Jaunte threw defendant off his brother. Defendant said, "Let me go. Thats my Mafia Crip." Jaunte understood him as referring to a neighborhood gang. Just before the shooting, Jaunte was standing in front of the Humphrey apartment with his mother and Maurice. Defendant walked up to Darnell and called Darnell a "bitch." Darnell punched defendant in the face and knocked him down. Defendant got up and began shooting. Defendant initially fired seven shots.
Deidre Humphrey, Darnells mother, was inside the family residence when she heard arguing outside. From her balcony, she saw "a bunch of guys" in the street and Darnell in the alley, close to the apartments front door. Deidre went outside. Richard was upset that "homies" from down the street had pointed at him. When he and Jerome began to argue, she went inside and called the police. After doing so, she came back outside, but when she saw Richard and Jerome fighting, she returned to her apartment called again. When she reemerged a few minutes later, there was "a bunch of commotion" on the street. Deidre saw defendant and Richard looking at Darnell. Thinking they were going to "jump her son," she stood in front of Darnell and warned them away. Richard repeatedly said, "Boulevard Crip. This is on Boulevard Crip." She replied, "Take that gang banging mess away from my house." She was backing up toward her apartment, trying to shield Darnell from defendant and Richard. When the two advanced toward her and her son, Darnell told them, "Get that gang banging shit away from my moms house." Darnell struck defendant with his fist, causing him to fall. Defendant got up and threatened Darnell, who replied in kind. Defendant pulled up his shirt, took a gun out of his waistband, and immediately began to fire at the unarmed Darnell. She saw three shots hit her son in the chest.
Officer Daniel Mendoza interviewed Deidre after the shooting incident. She told him that defendant identified himself as being associated with the Mac Mafia gang.
Latisha Marston saw Jerome and Richard arguing and fighting that evening before the shooting began. She knew Richard as "G Rich." Richard was the aggressor. She saw defendant speaking disrespectfully to Deidre prior to Darnells punching him. Latisha knew defendant as "Lil Toons." Defendant was a member of the Mac Mafia gang.
Officer Corey Lapworth and his partner responded to 3381 Andy Street in Long Beach just before 10:00 p.m. Officer Lapworth was directed to apartment No. 1. Darnell had been shot and was receiving treatment from paramedics. Darnell eventually died from multiple gunshots.
Detective Mark McGuire was familiar with the Mac Mafia Crips, a Long Beach gang. He arrested gang member Cameron "Tiny Slim" Mitchell in June 2007. A search of McGuires home uncovered McGuires cell phone. The phones contact list included "Lil Toons," which was defendants gang moniker. The phones contact list included more than 10 members of the Mac Mafia Crips, listed by gang monikers.
Officer Jorge Marquez had responded to the 3400 block of Andy Street concerning a report of gambling on February 15, 2006. One of the persons there was defendant.
Officer Gregory Crabbe took part in the July 25, 2007 arrest of defendant and the search of 1283 William McGrath Street in Colton. The same car that Latisha saw defendant driving on the day of the shooting was parked in the driveway. Inside a bedroom closet, the officer found a shoebox containing photocopies of newspaper articles concerning murders, along with papers with handwritten poems or lyrics. The newspaper articles concerned violent crimes in Long Beach, including the Darnell/Maurice shooting. During booking, defendant said he was an active member of the Mac Mafia gang and his moniker was "Lil Toons."
Criminalist Troy Ward testified that four cartridge cases and two bullets found at the shooting scene had been fired from a Glock handgun. The two bullets were nine-millimeter caliber projectiles. A bullet retrieved by the coroner from Darnells autopsy was the same kind as those two and could have been fired from the same Glock handgun.
Officer Chris Zamora testified as the prosecutions gang expert. His current assignment was directed to gang activity in North Long Beach. He was familiar with the Mac Mafia Crip gang, which was primarily comprised of African-American males and claimed Andy Street as its territory. Officer Zamora had spoken to approximately 20 of its 40 members. The gangs rivals include the Naughty Nasty Crips, with which they are engaged in an active war. A particular item of clothing used to identify Mac Mafia members is a Milwaukee Brewers baseball cap because it is blue, which corresponds to the Crips identifying color, and it displays the letter "M" which corresponds to the first letters of the gang name. Officer Zamora opined that defendant was a member of the Mac Mafia, based in part on defendants admission during booking. According to Officer Zamora, the writings found in the shoebox at defendants home contained numerous gang references, including statements proclaiming membership in the Mac Mafia Crips and using gang terminology, which would bolster his opinion as to defendants affiliation with the gang. Richard is a member of the Boulevard Crips, known by the monikers "G Rich" and "Danger Rich." The Boulevard Crips and the Mac Mafia Crips are allies.
In the relevant gang culture, asking whether a person was from the "Two Ns," would be a gang-related inquiry. Similarly, if a person committing a crime said, "this is on Boulevard Crips or this is on Mac Mafia Crips," it would be gang terminology meaning that the gang member wanted it known in the neighborhood that his gang was responsible for the crime. Respect, notoriety, and fear are very important within gang culture. The notoriety for a willingness to commit violent acts is believed to instill fear in the community, which benefits the gang by dissuading community members from reporting gang activity to the police.
Based on a hypothetical that reflected the prosecution case, the expert opined that the shooting would have been committed to benefit the Mac Mafia Crips. Officer Zamora found the following factors most salient: The shooter wore a cap identifying him as a member of that gang at the time he made a gang-related inquiry concerning a rival gang; the shooting occurred just after the shooter was punched by the victim; the shooter was in the company of a member of a gang that was aligned with the Mac Mafia; the shooting occurred in territory claimed by the gang. From the gang perspective, it would have been important to show that a community member who stood up to a gang member would suffer violent retribution. This would "instill a tremendous amount of fear within the community," including "the regular citizens that live and work in this area." The gangs primary activities are committing crimes. By intimidating citizens from reporting such activities to the authorities, the gang can operate more freely.
Dr. James Shaw testified as a gang expert for the defense. Having interviewed defendant and reviewed the trial testimony and investigative reports, Dr. Shaw opined that the underlying shooting was not gang related. Rather, it was the culmination of "a neighborhood squabble."
DISCUSSION
Evidence of Concurrent Intent to Kill Both Victims
Defendant contends there was constitutionally insufficient evidence of his specific intent to kill the surviving victim, Maurice. More specifically, he argues the evidence showed only an intent to kill Darnell, with no substantial evidence of a concurrent intent to kill both Darnell and Maurice. As we explain, the jurys verdict was well supported by the facts, reviewed in light of the relevant Supreme Court precedent.
"In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that 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.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
As defendant points out, "`[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) It follows that to support a conviction for a surviving victim, the prosecution must prove each defendant "acted with specific intent to kill that victim." (Ibid.) At the same time, however, direct evidence of an intent to kill the surviving victim is not required. Rather, it is recognized that "`the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon `"in a manner that could have inflicted a mortal wound had the bullet been on target" is sufficient to support an inference of intent to kill." (Smith, supra, 37 Cal.4th at p. 742, quoting People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 (Chinchilla).)
Thus, an attempted murder conviction will stand even when a single gunshot failed to strike either victim in the same line of fire. "[E]vidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both." (Smith, supra, 37 Cal.4th at p. 743.) In Chinchilla, we "affirmed two convictions of attempted murder based on the firing of a single bullet at two police officers who were crouched, one behind the other, in the shooters line of fire," holding "`intent to kill two different victims can be inferred from evidence that the defendant fired a single shot at the two victims, both of whom were visible to the defendant." (Smith, supra, 37 Cal.4th at p. 744, quoting Chinchilla, supra, 52 Cal.App.4th at p. 685.)
Defendant errs in asserting that the evidence supported a single inference—that defendant solely intended to kill Darnell. According to Maurice, at the time defendant fired, he was facing both Darnell and Maurice, with the latter standing almost directly behind Darnell. Defendant was only five steps away from Maurice and fired as many as seven shots in quick succession, striking Darnell in the torso and Maurice in the arm. As the area was illuminated and both victims were in defendants direct line of fire, defendants case cannot be meaningfully distinguished from Smith and Chinchilla. Indeed, the evidence below provides a stronger case for transferred intent, as in those cases the defendants had fired a single shot. In contrast, the prosecution below presented evidence that defendant fired multiple shots from a semi-automatic handgun in the direction of both Darnell and Maurice, bolstering the inference that defendants lethal intent extended beyond the primary victim. Moreover, there was solid evidence of a gang-related motive that applied to both victims. When defendant first approached Darnell and Maurice, he made a gang threat to both of them while displaying the handgun he would use minutes later to shoot them. Various witnesses testified that Richard and defendant acted as allies throughout the incident, and both made statements of gang affiliation just prior to the shooting. Therefore, it would have been reasonable to infer that defendant directed his act of violent retribution not only to Darnell, but also to Maurice—the person whom he had seen in Darnells close company at the time he made his initial gang threat.
Defendants record citations do not support his assertion that he "never took his eyes off [Darnell]" prior to and during the shooting incident.
Those same facts amply justified the jurys verdict based on the "kill zone" theory recognized by our Supreme Court in People v. Bland (2002) 28 Cal.4th 313 (Bland). "Bland simply recognizes that a shooter may be convicted of multiple counts of attempted murder on a `kill zone theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the `kill zone) as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. (Bland, supra, 28 Cal.4th at pp. 329-330.) As we explained in Bland, `This concurrent intent [i.e., "kill zone"] theory is not a legal doctrine requiring special jury instructions . . . . Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others. (Bland, supra, 28 Cal.4th at p. 331, fn. 6.)" (Smith, supra, 37 Cal.4th at pp. 745-746.)
Defendants jury was instructed on this theory.
In arguing that defendants weapon of choice—a nine-millimeter semi-automatic handgun—is inconsistent with the kill zone theory, defendant commits the same misreading of Bland that our Supreme Court criticized in Smith. Application of that doctrine is not limited to weapons, such as bombs or machine guns, which are designed to kill multiple victims. Rather, because the relevant determination is whether the "shooter used lethal force designed and intended to kill everyone in an area around the targeted victim . . . as the means of accomplishing the killing of that victim," the kill zone theory is applicable to the firing of a single bullet from a semi-automatic handgun. (Smith, supra, 37 Cal.4th at pp. 745-746.) By firing multiple shots in quick succession from a semi-automatic directly at a primary and secondary target, defendant placed himself within the parameters of the kill zone rationale.
Right to Confront and Cross-Examine the Medical Examiner
Defendant contends the admission of testimony by Dr. Poukens as to the murder victims autopsy results violated defendants right to confront witnesses under the Sixth Amendment and the state evidentiary law proscription against an expert witness testifying on direct examination as to the content of reports prepared by a nontestifying expert. Recognizing that his failure to object on those grounds below resulted in their forfeiture on appeal, defendant seeks to have them reviewed under the rubric of ineffective assistance of counsel.
E.g., People v. Burgener (2003) 29 Cal.4th 833, 869 (a claim based on a purported violation of the confrontation clause must be timely asserted at trial or it is waived on appeal).
At the start of trial, the prosecutor informed the court and defense that the deputy medical examiner listed on her witness list was no longer employed by the coroners office, and she would be calling instead the medical examiner designated by that office to give trial testimony. There was no objection. On the third day of trial, Dr. Poukens testified that he had extensive autopsy experience and was familiar with the way in which doctors from the department conducted autopsies. Immediately after performing an autopsy, the medical examiner would dictate his or her report. After the report was transcribed, the examiner would review it and correct any errors. Dr. Poukens was one of the examiners who exercised custody over the coroners reports in that department.
Dr. Changsri performed the autopsy on Darnell. Dr. Poukens reviewed Dr. Changsris report, which had determined the cause of death to be multiple gunshot wounds. The victim had suffered six such wounds. Dr. Poukens agreed with that determination. Based on his review of the report and photographs taken during the autopsy, Dr. Poukens discussed each wound with regard to entry and exit locations and opined as to whether it would have been fatal. The examiner testified that three gunshots had entered Humphreys chest area. The defense interposed no objections during the doctors direct examination.
"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; see Williams v. Taylor (2000) 529 U.S. 362, 390-391; People v. Kraft (2000) 23 Cal.4th 978, 1068.) "`A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)" (People v. Cunningham, supra, at p. 1003.)
"A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. `If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citations.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
In assessing whether the Sixth Amendment required trial counsel to object to on confrontation and hearsay grounds to Dr. Poukenss testimony, we begin by noting that our Supreme Court rejected precisely these arguments in People v. Clark (1992) 3 Cal.4th 41, 159. In Clark, the doctor who performed the autopsy had died before the trials penalty phase and another doctor from the coroners department testified in his stead. As in defendants case, the substitute medical examiner testified that he "was personally familiar with the manner of preparation of autopsy reports in the medical examiners office, that it was [the original doctors] duty at the time of the examination to make a report of the . . . autopsy, that the report was made at or near the time of the autopsy examination, and that the report so prepared was an official record of the coroner/medical examiners office." (Ibid.) The Clark court held "[t]his was sufficient to establish the report as an official record and to permit [the substitute doctors] testimony" pursuant to Evidence Code section 1280. (Ibid.) Clark also rejected the defendants confrontation clause claim: "The contents of [the original doctors] report were admitted under a `firmly rooted exception to the hearsay rule that carries sufficient indicia of reliability to satisfy the requirements of the confrontation clause. [Citations.]" (Ibid.)
Moreover, our Supreme Court has made it clear that expert testimony may "be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions." (People v. Gardeley (1996) 14 Cal.4th 605, 618.) "So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an experts opinion testimony." (Ibid., citing In re Fields (1990) 51 Cal.3d 1063, 1070 [expert witness can base "an opinion on reliable hearsay, including out-of-court declarations of other persons"].) "And because Evidence Code section 802 allows an expert witness to `state on direct examination the reasons for his opinion and the matter . . . upon which it is based, an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion." (People v. Gardeley, supra, at p. 618; People v. Geier (2007) 41 Cal.4th 555, 608, fn. 13 ["As an expert witness, Dr. Cotton was free to rely on Yatess report in forming her own opinions regarding the DNA match"]; People v. Campos (1995) 32 Cal.App.4th 304, 308 ["On direct examination, the expert witness may state the reasons for his or her opinion, and testify that reports prepared by other experts were a basis for that opinion."].) Of course, there can be no violation of a defendants confrontation rights where the challenged statement was not admitted for its truth. (Tennessee v. Street (1985) 471 U.S. 409, 414; Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 ["The [confrontation c]lause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Citation.]"].)
Nor would research at the time of trial have uncovered California authority supporting a confrontation clause challenge to prosecution experts use of the autopsy records under Crawford v. Washington, supra, 541 U.S. 36. In Crawford, the United States Supreme Court held that the admission of hearsay that is testimonial in nature constitutes a violation of the Sixth Amendment right of confrontation where the declarant is unavailable to testify at trial and the defendant had no prior opportunity to cross-examine the declarant. (Id. at p. 68.) As of this date, there is no binding federal Supreme Court or California authority for the proposition that Crawford precludes a prosecution medical expert from relying on an autopsy report or otherwise finding such a report to be testimonial for confrontation clause purposes. "Since Crawford, courts have struggled to determine what types of `business records can be considered testimonial and what types are not testimonial. For example, courts [from other jurisdictions] have agreed latent fingerprint reports are business records but have split on whether such reports are testimonial. Similarly, courts have categorized blood-alcohol reports and autopsy reports as public records or business records, since they are made in the course of a laboratorys business, but they have admitted such records as nontestimonial evidence for a variety of other reasons." (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1222, fns. omitted; see also People v. Johnson (2004) 121 Cal.App.4th 1409, 1413 [holding a laboratory report was not a substitute for live testimony but was "routine documentary evidence" that did not amount to "testimonial" hearsay under Crawford].)
Finally, defendant requests that we consider his claim in light of the United States Supreme Courts recent confrontation clause decision, Melendez-Diaz v. Massachusettes (June 25, 2009, No. 07-591) 557 U.S. ___ (Melendez-Diaz), issued after appellate briefing was completed. As we explain, the high courts recent decision does not change our analysis or conclusion.
In Melendez-Diaz, the defendant was charged with distributing and with trafficking in cocaine. To prove the substance found by police was cocaine, the prosecution "submitted three `certificates of analysis showing the results of the forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and stated that the bags `[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine. [Citation.] The certificates were sworn to before a notary public by analysts . . . as required under Massachusetts law." (Melendez-Diaz, supra, ___ U.S. at p. ___ .) Indeed, that states law authorized the use of such affidavits to provide prima facie evidence of the analyzed substances composition, quality, and net weight. (Id. at p. ___ .) According to Melendez-Diaz, under such circumstances—where the prosecution proved an element of the offense by a sworn certificate, rather than by live testimony at trial (or a showing of witness unavailability and the prior opportunity for cross-examination)—the admission of the certificates amounted to error under a straightforward application of Crawfords holding: "The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits . . . ." (Id. at p. ___ .)
Melendez-Diaz does not affect the forfeiture aspect of our ruling. The recent opinion made it clear the defendant timely objected to the certificates admission on the ground that the Confrontation Clause "required the analysts to testify in person." (Melendez-Diaz, supra, ___ U.S. at p. ___ .)
For purposes of our Strickland analysis, it must be noted that trial counsel cannot be found constitutionally remiss for having to anticipate the ruling in Melendez-Diaz. The relevant standard must, of course, be applied with regard to the state of the law at the time of trial. Moreover, the four dissenting justices agreed with Justice Kennedy that the courts holding swept away a 90 year old rule concerning the admission of scientific evidence that extended across 35 states and 6 federal appellate courts. (Melendez-Diaz, supra, ___ U.S. at p. ___ , dis. opn. Kennedy, J.) Additionally, the lead opinion speaks for the court only on the narrow basis set forth in Justice Thomass concurring opinion—"that `the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." (Ibid., conc. opn. Thomas, J.) As such, there is only a plurality opinion to support the broader interpretation that would potentially apply to defendants case.
More importantly, even if Melendez-Diaz had been issued at the time of defendants trial, its application to defendants case is problematic at best because the prosecution did not rely on an out-of-court affidavit to prove its case: Darnells autopsy report was not admitted in evidence. Instead, Dr. Poukens offered live expert testimony, subject to cross-examination as to the basis for his opinions. In so doing, Dr. Poukens merely relied on the other medical examiners report and photographs as the basis for his opinion as to the cause of Darnells death. The Melendez-Diaz decision did not reach the question of whether such expert testimony runs afoul of Crawford. (See, e.g., United States v. Richardson (8th Cir. 2008) 537 F.3d 951, 960 [no confrontation clause violation where DNA expert testified as to her conclusions based her review of DNA tests conducted by another scientist, even though other scientist did not testify, where the expert testified about her own conclusions and was subject to cross-examination].) As the dissenting opinion explained, the lead opinion left open the potentially vexing questions of whether every analyst or technician participating in the ultimate scientific findings must be made subject to cross-examination, or whether live testimony by a supervising analyst will suffice. (Id. at pp. ___-___ [2009 WL 1789468 at pp. *15-*16], dis. opn. Kennedy, J.)
We note another potential bases for distinguishing Melendez-Diaz: Where the drug analysis certificates in that opinion were created solely for the purpose of trial, a medical examiner is required to issue reports regardless without regard to any potential criminal prosecution. Moreover, because there was no timely Confrontation Clause objection, the issue of witness unavailability and opportunity to cross-examine was never litigated.
MOSK, J., Concurring
I concur.
Based on the current state of the law, I do not believe there was a violation of the Confrontation Clause under (Melendez-Diaz v. Massachusetts (June 25, 2009, No. 07-591) 557 U.S. ___ because the pathologist who did testify gave his own opinion based on various tests and photographs. The autopsy report was not admitted into evidence. I do not express any opinion on the reach of Melendez-Diaz in general. (See, e.g., Briscoe v. Virginia (cert. granted June 29, 2009, No. 07-11191) ___ U.S. ___ [issue whether state statutory scheme that allows prosecutor to introduce a certificate of forensic laboratory analysis without presenting testimony of analyst who prepared certificate violates Confrontation Clause as it allows defendant to call analyst as own witness].) If Melendez-Diaz did apply, I am doubtful there was a forfeiture, and the issue of ineffective assistance of counsel should be decided by way of a writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
It follows that defense counsel would have had little reason to think a confrontation clause or hearsay objection would have succeeded if he had made one. Accordingly, defendant has failed to make out a sufficient showing of either aspect of the Strickland test. Given the dearth of supporting authority for the foregone objections, this cannot be considered a situation in which there "could be no satisfactory explanation" for counsels course of action. (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) The mere fact that the defense may have had "nothing to lose" in making such objections cannot form the basis for an ineffective assistance claim under the Sixth Amendment. (Knowles v. Mirzayance (Mar. 24, 2009, No. 07-1315) ___ U.S. ___, ___ [129 S.Ct. 1411, 1419].)
The Criminal Street Gang Finding
In essence, defendant argues that the prosecution case, viewed in light of Officer Zamoras expert opinion, supported a finding that the Humphrey murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), but provided no solid, credible evidence for a gang finding as to the attempted murder of Maurice. "The substantial evidence standard of review applies to section 186.22 gang enhancements." (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) Consistent with our analysis of defendants sufficiency of evidence claim as to the attempted murder verdict, we reject this claim as well.
As defendant points out, Officer Zamoras expert testimony was silent on the question of whether the attempted murder was committed to benefit the Mac Mafia Crips. Nevertheless, the jury could reasonably have found that his opinion implicated both shooting victims. According to the expert, the shooting was committed with the aim of instilling fear in the community by violently punishing those who publically humiliated gang members such as defendant. This would apply not only to Humphrey, as the person who knocked defendant to the ground, but also to Maurice because defendant had seen that Humphrey and Maurice were allied. Not only did defendant initially accost both of them with a gang threat (as Officer Zamora pointed out), but Maurice had assisted Humphrey in trying to protect Joseph during the melee that preceded the shooting. Indeed, just before the shooting, Maurice emerged from the Humphrey residence, where he had taken the injured Joseph. Defendant shot Maurice in the same series of gunshots directed at Humphrey, while Maurice was standing behind Humphrey and next to Mrs. Humphrey. Therefore, a gang-motivated shooting of Humphrey would reasonably include the shooting of Maurice.
Sentencing Issues
Defendant received two terms of 25 years to life for the Humphrey murder and firearm enhancement, plus 10 years for the gang enhancement under section 186.22, subdivision (b)(1). He received no credit for the 240 days he spent in custody pending trial. The parties agree that both aspects of his sentencing were unauthorized. First, the trial court improperly imposed the 10-year street gang enhancement under section 186.22, subdivision (b)(1)(C). Because defendant violated section 186.22 by committing a felony punishable by life imprisonment and for which he received a life with the possibility of parole term, subdivision (b)(5) applied, which provides for a 15-year minimum parole eligibility date. (People v. Lopez (2005) 34 Cal.4th 1002, 1010-1011.) Second, a defendant convicted of murder is entitled to presentence custody credit for the actual number of days in confinement up to the date of sentencing, but may not receive work time or conduct credits. (§§ 2900.5, subd. (a), 2933.2; People v. Taylor (2004) 119 Cal.App.4th 628, 645-647.) We order that the abstract of judgment be modified accordingly.
DISPOSITION
The clerk is directed to amend the abstract of judgment by (1) striking the 10-year section 186.22 enhancement on count 1 and replacing it with a 15-year minimum parole eligibility date; and (2) awarding defendant 240 days of custody credit. A copy of the amended abstract shall be sent to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed in full.
I concur:
ARMSTRONG, Acting P. J.