Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. YA060852, BA300263, Mark V. Mooney, Judge.
Dennis L. Cava, 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, Assistant Attorney General, Susan D. Martynec, and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Emerson Paul appeals from the judgment entered upon his convictions by jury of shooting at an inhabited dwelling (Pen. Code, § 246, count 2), shooting at an occupied vehicle (§ 246, count 3), and possession of a firearm by a felon (§ 12021, subd. (a)(1), count 7). As to all counts, the jury found to be true the gang allegation within the meaning of section 186.22, subdivision (b)(1)(A), and, as to counts 2 and 3, the firearm use allegation within the meaning of section 12022.53, subdivisions (b) and (c). The trial court sentenced appellant to a state prison term of 17 years to life. Appellant contends that his constitutional rights were violated because (1) the trial court erroneously denied his suppression motion, (2) there is insufficient evidence to support the jury’s true finding on the criminal street gang allegation, (3) the trial court allowed a former codefendant to testify as a witness despite his having invoked the Fifth Amendment privilege against self-incrimination prior to trial and having refused to answer questions despite a grant of immunity, (4) the trial court allowed into evidence at trial the codefendant’s testimony at an Evidence Code section 402 hearing, (5) the trial court failed to hold an in camera Pitchess hearing, and (6) the cumulative effect of the errors of law resulted in a miscarriage of justice.
All further statutory references are to the Penal Code unless otherwise indicated.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We affirm and remand with directions.
FACTUAL BACKGROUND
The prosecution’s case
The shooting
Oscar Portillo
On March 23, 2006, at approximately 3:30 p.m., Oscar Portillo (Portillo), a bus driver, was driving his bus east on 41st Street, with two passengers, when there was “a shootout” at the intersection of 41st and Naomi Streets. He saw a young, frightened Black male run in front of his bus to a brown house “right in front of Naomi.” He also saw a Black female running and then heard four gunshots. As a result of the shooting, the bus sustained three bullet holes and a flat tire. The passengers were uninjured.
Tanae Richards (Tanae)
At the time of the shooting, Tanae and her cousin, Mishay Williams (Mishay), were standing on the porch outside Tanae’s house. Tanae saw Frank Talbert (Talbert) and Rayvonta Vince (Vince), both of whom she recognized from the neighborhood, fighting on the corner of Hooper and 41st Street. Talbert was pulled away from Vince, who said he was coming back with a “burner,” meaning a gun. Talbert and Vince left the scene.
Tanae was 14 years old and Mishay 12 years old at the time of trial.
Five or 10 minutes later, Tanae saw Talbert and Corey Price (Price) standing at a pay phone on the corner. Price appeared to make a call on his cell phone. Tanae’s 16-year-old brother, Deron Calhoun (Calhoun), and their mother walked to an ice cream truck at the corner of 41st and Naomi Streets. A few minutes later, Tanae saw Vince walking up Naomi Street toward the ice cream truck, holding a “long black gun.” Tanae ran into the house with Mishay, got on the floor, and heard gunshots. Tanae did not see Talbert with a gun, nor did she see anyone fire a gun. After the shooting, there was a hole in the front window of her house.
Mishay Williams
On the day of the shooting, Mishay saw Price standing by the pay phone using his cell phone and making sure there were no police. She recognized him from the neighborhood. When he put the cell phone away, someone she did not recognize appeared with a gun and began firing. She had never seen appellant in the neighborhood, but saw him for the first time at trial.
Deron Calhoun
Calhoun, the alleged victim of the shooting, was an unwilling witness. He was transported to trial by the police. At one point during his testimony, he stated on the record that for the rest of the day he would only respond that he did not recall. Consequently, much of his trial testimony consisted of his preliminary hearing testimony used to impeach him.
Calhoun lived in the house at the intersection of 41st and Naomi Streets. He claimed not to be a gang member. On March 23, 2006, he saw a friend, Kerry Smith (Smith), being arrested on the corner of Hooper and 41st Street. Smith told Calhoun he had been in a fight. Five minutes later, Calhoun was on his front porch and saw Price and Talbert, both of whom he recognized, at a pay phone across the street, looking towards his house. Price was speaking on a cell phone. Talbert had just been in a fight. He was wearing a baseball cap. Although Calhoun did not recall it at trial, at the preliminary hearing, he testified that Talbert threw a gang sign at him, and turned his hat around to reveal an “H,” which stood for the Five Deuce Hoover Crips (Hoovers).
An ice cream truck stopped at the corner. Calhoun and his mother walked over to it. Talbert and Price left and were walking south on Naomi Street. A male was walking north on Naomi Street, holding what looked like an AK47. Suddenly, shots rang out. The shooter shot at Calhoun, who began running with his mother to their house.
Five to 10 minutes after receiving a radio call of shots fired, Officers Jesse Oropeza and his partner, Officer Craig Mattison, responded to the scene. Officer Oropeza interviewed Calhoun, who was frightened and crying. Calhoun identified the gunman to the police as “Emerson,” whom he recognized from a previous incident, and described him as a Black male, six foot to six foot two inches tall, 175 pounds, with green or hazel eyes, wearing a black shirt and dark colored pants or shorts.
A half hour later, Officer Oropeza drove Calhoun to a field showup. On the way, Calhoun hid behind the car seat and refused to look up. When they arrived, he viewed appellant from inside the police vehicle and identified him as the gunman. He said he knew appellant and that appellant had changed his clothes. The officers showed Calhoun a black shirt with the Anaheim Angels logo on it which Calhoun identified as the shirt appellant wore during the shooting.
At trial, Calhoun testified that he did not see anything, but only heard gunshots. He did not know the man with the gun, and did not tell police that appellant was the shooter. Calhoun also denied knowing, or telling officers, that appellant was a member of the 40 Avalons Gangster Crips (40 Avalons), giving a description of appellant to police, or identifying him at a field showup.
Calhoun’s preliminary hearing testimony differed radically. He testified that appellant was the person who shot at him and that he told this to responding police, as well as telling them where appellant might be found. Although he did not see the face of the man with the gun, he identified him from his clothing and information he had been told by a woman in the ice cream truck.
Appellant’s arrest and search
Based on information obtained at the crime scene, Officer Gerald Harden went with other officers a block away, to appellant’s apartment on 41st Place, where they saw appellant through a window. Appellant was startled at seeing the officers, ran out the front door and was detained as he tried to jump over a fence. The officers searched him, confiscating keys to his apartment, which they proceeded to search. In a dresser drawer, they found a live 7.62 by 39-millimeter round of ammunition manufactured by T.C.W, generally used in an AK47, and four live rounds of .38-caliber ammunition. The police also recovered a black shirt with the Anaheim Angels logo.
After his arrest, appellant waived his Miranda rights. At the police station, he told Officer David Torres that on the day of the shooting, he was home working on his car when he was “chirped” on his phone by a friend, who told him there had been a fight. Appellant rode his bicycle to 41st and Naomi Streets and saw a commotion. He then went to another person’s house and then back to his home.
Miranda v. Arizona (1966) 384 U.S. 436.
The investigation
At the scene of the shooting, Officer Mattison recovered four expended 7.62 by 39-millimeter rifle casings manufactured by T.C.W. Seven 9-millimeter, handgun casings were also recovered.
On the day of the shooting, Officer Juan Gonzalez, an investigating officer, interviewed Tanae at the police station. From a school yearbook, she identified Talbert’s photograph and wrote that she saw him standing by the pay phone with Price.
Five days later, Officer Gonzalez conducted several interviews. He interviewed Calhoun, who said that when he saw Price and Talbert across the street from Calhoun’s house, Talbert made a Hoovers gang hand sign at Calhoun and turned his hat around revealing the letter “H,” which stands for “Hoovers.” During the interview, Calhoun identified appellant from a photographic six-pack, writing “Emerson had the gun.” He also identified Talbert and Price from six-packs. Officer Gonzalez also showed Mishay and Tanae a photographic six-pack, including a photograph of Price. Mishay identified him and wrote, “Corey was by the phone booth and he was making sure there were no police” and then “chirped somebody.” Tanae also identified Price.
Prior to the preliminary hearing, Officer Gonzalez showed all of the witnesses a six-pack that included Vince’s photograph, but none of them identified him. Subsequently, on September 8, 2006, Tanae identified Vince in a six-pack. She said she had not previously identified him because she was afraid.
Gang evidence
The area around 41st and Naomi Streets was a hotbed of gang activity. The 40 Avalons was active in that area, and the 30 Pirus, a Bloods gang and a rival of the Crips, claimed that intersection. Within two blocks, three or four gangs operated. Bloods had been seen congregating at Calhoun’s house. Crips and Bloods gangs are generally enemies. The 40 Avalons principal activities included loitering, gambling, vandalism, robbery, assaults, shootings and murder. It used the Anaheim Angels and Milwaukee Brewers logos as gang logos.
Officer Harden testified that in his opinion appellant and Price, who were next door neighbors, were active members of the 40 Avalons. Appellant had the moniker “Green Eyes.” Officer Harden’s opinion regarding appellant was based upon appellant’s previous admission to him of membership, the Angels and Brewers tattoos he wore, the people with whom he associated and his being seen in the territory of the 40 Avalons. Talbert was a member of the Hoovers, allies of the 40 Avalons.
Officer Harden opined that a hypothetical consistent with the facts of this case indicated that the shooter fired the gun for the benefit of, at the direction of, or in association with, a criminal street gang. The shooting promoted the gang by letting residents in the area know that the gang was not to be challenged.
Officer Alfred Garcia, a gang officer, testified that the 40 Avalons and the Five Trey Avalon Gangster Crips (Five Treys) are interchangeable subsets of the Avalon Gangster Crips. He testified to the felony convictions of two Five Treys members; Samory McQueen of robbery committed on October 6, 2004, and Jonathan Longmyer of possession of cocaine for sale committed on February 10, 2004.
The defense’s evidence
On March 23, 2006, Elias Garcia (Garcia) was at appellant’s house with appellant, working on appellant’s car from 8:00 a.m. until appellant’s arrest. Garcia did not remember if appellant went anywhere on his bicycle, did not hear any gunshots that day and did not see appellant carrying a gun.
Maribel Cortez (Cortez) lived two houses from appellant. On the day of the shooting, she saw appellant the whole day, as she left her children in his backyard so that she could clean her house. As she did so, she could see appellant in his backyard. She did not see him carrying a gun. Cortez heard gunshots and ran to the back of appellant’s house where her children were playing. Appellant and Garcia were working on appellant’s car. Cortez witnessed appellant’s arrest. The police put a black shirt over him and “put like something on his shirt like a bullet or something like that.”
DISCUSSION
I
SUPPRESSION MOTION
A. The evidence
Appellant filed a motion to suppress the evidence seized at his home. He also sought to suppress his statements to police, arguing that they were the fruit of the alleged illegal search. A hearing on the motion was conducted at which the following evidence was presented.
On March 23, 2006, at approximately 3:50 p.m., Officer Harden responded to a shots-fired call near 41st Street and Zamora. He understood there to be two suspects based upon information he received in the radio call. Officer Harden spoke with Calhoun, and, based on the description and location of one of the suspects given by Calhoun, went with other officers to 1192 East 41st Place, where he observed appellant, matching the description given, in the rear residence, standing inside an open window. After appellant looked in the direction of the officers, he ran out of the residence. Officers apprehended him near the front door.
Officer Harden asked appellant if he was on parole or probation. Appellant said that he was on probation and that he lived alone in the residence where the officers saw him. Officer Harden searched appellant and confiscated keys which he used to open the security door to appellant’s apartment. The officers believed they could enter the premises “to clear the location for additional suspects,” because of the type of crime involved and because appellant was on probation.
From outside the apartment, through the window and open door, Officer Harden observed a Ziploc baggie sitting on top of a dresser just inside the front door. It contained a large amount of a “green plant material resembling marijuana.” Before seizing anything, the officers cleared the location for other possible suspects. After doing so, Officer Harden observed on the top of the television three large off-white solids resembling rock cocaine, some white crystalline substances resembling methamphetamine and some white powder resembling cocaine and seized the controlled substances.
After observing what was believed to be narcotics, the officers conducted a more thorough search for more narcotics. Inside the top drawer of the dresser just inside the front door, Officer Saenz found four .38-caliber and one 7.62 by 39-millimter live rounds. Inside an open closet, he found a black shirt with an air brushed “A” on it. Officer Harden seized the shirt because Calhoun had indicated that one of the shooting suspects was wearing a black shirt.
The trial court took judicial notice of Los Angeles Superior Court case No. YA060852, which showed that appellant was on probation with a search condition.
B. The ruling
The trial court denied the suppression motion, stating: “We do have a report of shots fired. We have two suspects involved in this matter. When you add to that the contraband that was even in plain view, that could have possibly easily have been destroyed had there been another person in the location. And the fact that the individual did identify that he was on probation for a 487, although there is no testimony that the defendant did say that he had search or seizure conditions. . . . And I think that is not an unjustifiable inference to make in this case.” The court noted that it had never seen a person on probation without a search or seizure condition.
C. Contentions
Appellant contends that the trial court erred in denying his suppression motion with respect to the seized ammunition and statements he made to police. He argues that neither the protective sweep, discovery of narcotics in plain view nor other exigent circumstances justified the warrantless search into drawers containing the bullets. He further argues that the search cannot be justified as a probation search because even though Officer Harden was aware that appellant was on probation, there was no evidence that he or any of the officers knew that appellant was subject to a search condition. Finally, appellant argues that his extrajudicial statements were the fruit of the illegal search.
Respondent contends that appellant forfeited the latter claim, and, in any event, there is no indication the statements to police were the fruit of the search.
D. Standard of review
“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there had been an unreasonable search and/or seizure. [Citation.]” (People v. Miranda (1993) 17 Cal.App.4th 917, 922; People v. Glaser (1995) 11 Cal.4th 354, 362.)
E. Exigent circumstances
“Exclusion of ‘relevant, but unlawfully obtained evidence’ is permitted under article I, section 28, subdivision (d) of the California Constitution ‘only if exclusion is required by the United States Constitution.’ [Citation.] ‘The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”’ [Citation.] ‘[T]he “prime purpose” of the [exclusionary] rule, if not the sole one, ‘‘is to deter future unlawful police conduct.” [Citations.]’” (People v. Sanders (2003) 31 Cal.4th 318, 324 (Sanders).) “‘[T]he “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”” (People v. Camacho (2000)23 Cal.4th 824, 831.) Warrantless searches within the home are proscribed unless exigent circumstances exist. (People v. Ray (1999) 21 Cal.4th 464, 484.)
The exigent circumstances here justified the officers entering appellant’s home to search for an additional suspect, but did not justify the broad search which yielded the challenged ammunition. Officer Harden had information that there were two suspects involved in the shooting. After Calhoun provided a description of appellant and information as to where he might be found, Officer Harden began his pursuit of the suspects, going to appellant’s residence. When appellant saw the officers from his window, he attempted to flee, only to be detained not far from his front door. Officer Harden was reasonably concerned that the other suspect might be hiding inside appellant’s apartment. Entering the apartment for the limited purpose of determining if another suspect was present was within the fresh pursuit exception to the warrant requirement. (People v. Smith (1966) 63 Cal.2d 779, 797; People v. Block (1971) 6 Cal.3d 239 [search reasonably undertaken to find additional suspects on premises].) There were two armed and dangerous suspects at large who presented a grave and serious risk to the public.
Because the officers were justified in entering the apartment, they could properly seize contraband in plain view, including the baggie of what appeared to be marijuana and other visible narcotics. (People v. Block, supra, 6 Cal.3d at p. 243.) “[O]bservations of things in plain sight made from a place where a police officer has a right to be does not amount to a search in the constitutional sense.” (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634.)
But the protective sweep to find suspects could not justify a full search of the premises, “but [could] extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” (Maryland v. Buie (1990) 494 U.S. 325, 336, fn. omitted.) The search for another suspect did not justify the officers rummaging into appellant’s closed drawers.
Once appellant was apprehended and handcuffed and it was determined that there were no additional suspects in his apartment, there was no danger, no risk of destruction of evidence and no reason why the officers could not have secured the location and obtained a warrant before conducting a thorough search.
F. Probation search
Because there were no exigent circumstances justifying the broad search of appellant’s residence, that search can be justified, if at all, only as a probation search. Appellant argues that although he was on probation, the search was not a valid probation search because the officers did not know whether he was subject to a search condition. We agree.
In Sanders, supra, 31 Cal.4th 318, police officers responding to a disturbance call entered the apartment of Kenton McDaniel and Arlene Sanders, whom they heard yelling. Sanders had an abrasion on her face, and the officers saw McDaniel place something behind the couch. When McDaniel and Sanders demanded the officers leave and began moving toward them, they were handcuffed. One of the officers then conducted a “protective sweep” to make certain there was no one else in the apartment who might present a danger. In one of the bedrooms, in an open closet, the officer saw a boot with a number of plastic bags stuffed in it and “little white chunks of cocaine base knotted into the corners.” After completing the sweep, one of the officers contacted the police department and learned that McDaniel was on probation and subject to a search condition. The Officer then seized the baggies he had previously seen in the boot. (Id. at pp. 322-323.)
After the defendants’ motion to suppress was denied, Sanders pled guilty to a reduced charge of possession of a controlled substance and McDaniel pled guilty as charged to possession of cocaine base. On appeal, the defendants did not challenge the validity of the officers’ entry into the apartment, but argued it was unlawful for the officers to search the apartment after the suspects were handcuffed. The California Supreme Court granted review to decide whether the search was lawful because McDaniel was on parole, despite the fact that the officers were unaware of his parole status when they conducted the search. (Sanders, supra, 31 Cal.4th at pp. 323-324.)
The Supreme Court held that “an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted.” (Sanders, supra, 31 Cal.4th at p. 335, fn. omitted.) “[T]he admission of evidence obtained during a search of a residence that the officer had no reason to believe was lawful merely because it later was discovered that the suspect was subject to a search condition would legitimize unlawful police conduct,” the deterring of which is a major rationale for the exclusionary rule. (Ibid.)
The principle announced in Sanders, a parolee case,was extended to a probationer in a juvenile proceeding in In re Jaime P. (2006) 40 Cal.4th 128, 130 (Jaime P.). There, our Supreme Court concluded that a juvenile’s probationary search condition cannot justify an otherwise illegal search and seizure if the officers conducting the search are then unaware that the juvenile is on probation and subject to the search condition. It reiterated that persons on “probation or parole who are subject to a search condition nonetheless retain some residual expectation of privacy.” (Id. at p. 136.)
In both Sanders and Jaime P., the officers conducting the search were unaware of the suspects parole/probation status, and hence that they might be subject to a search condition. Unlike in those cases, the matter before us presents the novel question of whether an otherwise unlawful search can be justified as a probation search when the officer conducting it knows that the suspect is on probation, but does not know whether the suspect is subject to a search condition. We conclude that the officers must be aware of the search condition.
In Sanders and Jaime P.,the justification for a parole/probation search was not the mere status of the suspect as a parolee/probationer, but whether the suspect was subject to a search condition. The right to search derives from the search condition, not the suspect’s status as a parolee/probationer. Moreover, the scope of a permissible probation search is determined by reference to the probation order. (See People v. Bravo (1987) 43 Cal.3d 600, 606-607.)
Every parolee, by virtue of section 3067, must be subject to a statutorily required search condition, the scope of which is set forth in the statute. As a result, knowing that a person is on parole is at least presumptive knowledge that the person is subject to such a condition. The same cannot be said of a probationer for whom there is no equivalent statutory requirement. Being a probationer does not automatically, though it may frequently, mean that the person is subject to a search condition, nor does it suggest the scope of any such condition. Hence, knowing that a suspect is a probationer is not synonymous with knowing whether that person is subject to a search condition.
Section 3067, subdivision (a) states: “Any inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.”
Respondent argues that the trial court’s statement that it had never seen a probationer without a search condition justified Officer Harden’s assumption that appellant had one. But the trial court’s experience, not established by any evidence, is not necessarily the knowledge of the police officer conducting the search. It is the officer’s knowledge when the search is conducted that is germane. (Jaime P., supra, 40 Cal.4th at p. 133.) Additionally, there was no evidence at the suppression hearing as to the prevalence of search conditions for probationers so as to permit an inference as to the likelihood that appellant had such a condition. Even if search conditions are imposed on the overwhelming majority of probationers, police officers cannot assume that they are present in every case. We find no justification for allowing the infringement of the rights of privacy of even a few probationers without search conditions, because most may be subject to such conditions.
Respondent also argues that “[a]ppellant is incorrect [that the search cannot be justified as a probation search because Officer Harden did not know whether he had a search condition] . . . because [appellant] was in fact subject to a search condition.” Respondent is wrong. The reasonableness of a search must be determined by the circumstances known to the officer when the search is conducted. (In re Jaime P., supra, 40 Cal.4th at p. 133.)
Because the search which yielded the challenged evidence can be justified by neither exigent circumstances nor a probation condition, the trial court erred in failing to suppress the bullets found in appellant’s dresser drawer.
We need not decide whether appellant forfeited the claim that his statements to police must be suppressed as the fruit of the illegally obtained evidence, as that claim is meritless. In determining whether to admit fruit-of-the-tree evidence, ‘“defendant bears the burden of making a prima facie case that such evidence was “tainted” by i.e., causally linked to -- the primary illegality.”’ (People v. Mayfied (1997) 14 Cal.4th 668, 760.) Appellant has made no such showing regarding his statements to police. The officers had grounds to arrest him based upon Calhoun’s identification and appellant’s attempt to flee, without any of the evidence obtained in the search. Appellant makes no showing that his statements would not have been made but for the illegal actions of the police.
G. Harmless error
We must still consider whether admission of the unlawfully obtained bullets was prejudicial. We conclude beyond a reasonable doubt that appellant would not have realized a more favorable result if the illegally seized evidence had been excluded. (People v. Cahill (1993) 5 Cal.4th 478, 509; People v. Jackson (2005) 129 Cal.App.4th 129, 165; Chapman v. California (1967) 386 U.S. 18, 24.)
Even without the 7.62 by 39-millimeter bullet in evidence, the evidence tying appellant to the shooting was overwhelming. Frightened and crying, Calhoun identified appellant, who he knew by name, as the shooter to the responding officers immediately after the crime, when his emotional state undermined any intent to fabricate. He provided officers with a detailed description of appellant and directed them to the location where he was found. When the officers arrived at appellant’s residence, he fled, evidence of consciousness of guilt. (See People v. Hill (1967) 67 Cal.2d 105, 120.) During the search of appellant’s apartment, officers seized a black shirt, which seizure is not challenged here, which matched the description Calhoun had given of the shirt appellant wore during the shooting. Calhoun also identified appellant at a field showup less than an hour after the shooting. When Calhoun was transported to the showup, he cowered in the back of the police car, fearing to be seen. Five days later, he again identified appellant by name as the shooter in a photographic six-pack. Appellant admitted to the police after his arrest that he was at the scene of the shooting, although he denied having anything to do with it. There was evidence that appellant was a 40 Avalons gang member, providing a strong motivation for him to shoot at the residence where rival Bloods had sometimes been seen congregating in an area rife with gang activity.
II
SUFFICIENCY OF EVIDENCE
Appellant contends that the evidence fails to support the gang allegation. He argues that “other than appellant’s gang membership, the prosecution presented only uncertain and speculative evidence as to whether the alleged offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.”
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) “‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
The evidence that the shooting was committed for the benefit of, at the direction of, or in association with a criminal street gang was sufficient to permit the jury to find the gang allegation to be true. The location of the shooting was a hotbed of rival gang activity. Three or four gangs operated within two blocks of 41st and Naomi Streets. The 30 Pirus, a Bloods gang and rival of the 40 Avalons, claimed that corner, and the 40 Avalons frequented just south.
Appellant and Price were members of the 40 Avalons. Talbert was a member of the Hoovers, an ally of the 40 Avalons. The evidence supports an inference that after Talbert was in a fight, he and Price telephoned appellant who appeared minutes later carrying an AK47. Shots were fired at Calhoun’s residence, a known location where Bloods congregated. The shooting occurred in broad daylight, in the presence of local residents, all highly suggestive of gang motivation. Additionally, Officer Harden opined, without objection, that the facts presented established that the shooter fired the gun for the benefit of, at the direction of, or in association with a criminal street gang.
III
EVIDENTIARY ISSUES
A. Compelling Talbert to testify
Appellant, Talbert and Price were all charged in connection with the shooting. At the time of trial, Talbert had pled no contest to, and been sentenced for, assault with a firearm, but his right to appeal was still in effect. Although the district attorney was prepared to offer Talbert use immunity, Talbert’s attorney said that Talbert would not testify regardless.
At an Evidence Code section 402 hearing, Talbert was questioned under oath. He testified that he was in prison and had safety concerns about testifying. He refused to say why, responding, “No comment.” Talbert said he did not intend to answer any questions. When he asserted his privilege against self-incrimination, the trial court granted him use immunity. It explained that nothing he testified to could be used against him. He therefore had no privilege to refuse to testify and could be cited for contempt for refusing. After receiving use immunity, Talbert answered a few questions. He acknowledged that he had tattoos on his body, but claimed they were not gang related, he denied present and past gang membership and claimed not to know appellant. He still refused to answer most of the questions.
The testimony on this point is set forth verbatim in part IIIB, post.
The prosecutor requested that the trial court allow him to put Talbert on the stand to answer questions in front of the jury, and, if he refused, for the court to inform the jury that he had been granted immunity. Defense counsel objected, arguing that it was clear Talbert would not answer questions, and he should not be forced to refuse to answer in front of the jury.
Talbert was then called as a witness and refused to answer most of the questions posed. He confirmed that at the Evidence 402 hearing, he said, “No, no comment,” to the question of whether he knew appellant. He refused to indicate whether he earlier testified that he was not in a gang and that he knew appellant, each time responding, “No comment.” The trial court ordered Talbert to answer because he was granted immunity and therefore did not have a Fifth Amendment privilege. After a series of “No comments” to cross-examination questions, Talbert said that would be his response to all defense questions.
Appellant contends that the trial court erred and denied him due process in allowing the prosecution to call Talbert as a witness when Talbert had previously unequivocally indicated that he would be invoking his Fifth Amendment right and would refuse to testify at trial despite the grant of use immunity. He argues that just as it is prejudicial to allow a witness to assert the privilege against self-incrimination in front of the jury, it is equally prejudicial to allow Talbert, after being granted use immunity, to assert the privilege and refuse to answer in front of the jury. This contention is meritless.
Section 913 of the Evidence Code provides in part: “(a) If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.”
“It is well settled that the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense.” (Bowles v. U.S. (1970) 439 F.2d 536, 541.) This rule derives from the constitutional notion that guilt may not be inferred from the exercise of the Fifth Amendment privilege, and the danger that invoking the privilege in the jury’s presence will have a disproportionate impact on their deliberations. (Ibid.) “Allowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference. [Citation.] Therefore, ‘it is the better practice of the court to require the exercise of the privilege out of the presence of the jury.’ [Citation.]” (People v. Frierson (1991) 53 Cal.3d 730, 743; see also People v. Smith (2007) 40 Cal.4th 483, 516.) A prosecutor’s request to compel a witness to invoke the privilege against self-incrimination in front of the jury is a direct violation of section 913. (People v. Mincey (1992) 2 Cal.4th 408, 441.)
Appellate decisions noting the impropriety of requiring a person to assert the privilege against self-incrimination in front of a jury have been based upon the underlying assumption that the assertion of the privilege is proper. (See, i.e., People v. Mincey, supra, 2 Cal.4th at pp. 440-441; People v. Frierson, supra, 53 Cal.3d at pp. 743-744; Bowles v. U.S., supra, 439 F.2d 536.) A different rule applies where there is no privilege to assert.
People v. Lopez (1999) 71 Cal.App.4th 1550 (Lopez) is instructive. There, to establish a pattern of criminal gang activity, the prosecutor called a gang member to testify about a gang-related assault he committed a month before the assault by the defendant. The gang member had already pled guilty to the charge, and his time to appeal had run, without him having done so. (Id. at p. 1553.) Before he took the stand, the witness made clear that he had no intention of testifying against Lopez. When told of this, the trial court conducted a hearing outside the jury’s presence, appointing counsel to advise the witness. The trial court informed the witness that he had no right to withhold testimony and no Fifth Amendment privilege left to invoke, but was required to answer questions about the events underlying his plea, under threat of contempt. (Ibid.) The trial court believed that it did not have a right to prevent the prosecutor from calling the witness to the stand, and allowed the prosecutor to do so.
On appeal, the defendant claimed that it was reversible error to put the witness on the stand because it is improper for a court to require a witness to claim the Fifth Amendment privilege in the presence of the jury when it has already determined he will refuse to testify. (Lopez, supra, 71 Cal.App.4that p. 1554.) The Court of Appeal agreed, “[a]ssuming, of course, the witness has a valid Fifth Amendment privilege to claim.” (Ibid.) But it found that the witness had waived that privilege and explained that while a witness should not be put on the stand to assert his Fifth Amendment privilege, “where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” (Ibid.)
Where there is no privilege to assert, there is no risk that the jury will draw a negative inference from the assertion of the privilege and refusal to answer questions. Rather, the only danger presented is that the jury will draw a negative inference from the witness’s attempt to avoid providing testimony by the improper assertion of the privilege. A jury may consider a witness’s improper refusal to answer questions because “[a] witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give.” (Roberts v. United States (1980)445 U.S. 552, 560, fn. 7.)
Here, Talbert was given use immunity which provides sufficient protection to overcome a Fifth Amendment claim of privilege. (People v. Cook (1993) 16 Cal.App.4th 1361, 1366; Kastigar v. United States (1972) 406 U.S. 441, 453.) He therefore had no privilege against self-incrimination to assert or on which to base a refusal to answer questions, and the trial court properly permitted the prosecutor to call him to the stand over defense objection. When Talbert refused to answer questions in front of the jury, the trial court also properly ordered him to do so, because he had been granted immunity which trumped his privilege.
B. Use of Talbert’s prior testimony
When Talbert refused to answer questions when testifying before the jury, the prosecutor requested to impeach him with the transcript of his Evidence Code section 402 hearing testimony. Appellant objected that this was improper impeachment because Talbert’s “no comment” responses before the jury were not inconsistent with any statements he made during the Evidence Code section 402 hearing.
The trial court concluded that Talbert was being purposefully evasive which qualified as an inconsistent statement. The portion of Talbert’s Evidence Code section 402 hearing testimony that was read to the jury was as follows: ‘“Q Let me move to another question. The gentlemen in the blue all the way to the right, do you know him? A I don’t know him like that. Q You don’t know him in the blue jails or not the way he looks today? A I don’t know him. Q You don’t know him at all? A No. Q Have you ever seen him before today’s date? A What do you mean? Q Have you ever seen the defendant before today? And when I use the word ‘defendant’, the gentleman I am standing behind, Mr. Paul. Emerson Paul for the record, Your Honor. THE COURT: The record will so reflect. Q Do you know this gentleman in blue here today? A No, no comment. No, no comment.”’
Appellant contends that his rights to confront witnesses against him and to due process under the state and federal constitutions were violated by the introduction of the portion of Evidence Code section 402 hearing transcript of Talbert’s testimony. He argues that Talbert’s responses “permitted the impermissible inferences that [his] ‘no comments’ conveyed that true answers would have been in the affirmative,” thereby rendering his trial fundamentally unfair. He further argues that Talbert’s “no comment” responses deprived appellant of a meaningful opportunity to cross-examine and hence his right to confront the witnesses against him.
Respondent contends that appellant waived his constitutional claims because no objection was made to the evidence on these grounds. We agree. Before admission of the challenged testimony, defense counsel did not object on the grounds of appellant’s confrontation or due process rights. Constitutional objections must be interposed in the trial court in order to preserve them for appeal. (See People v. Williams (1997) 16 Cal.4th 153, 250; Evid. Code, § 353, subd. (a).) Having failed to object on the constitutional grounds now asserted, those claims were not preserved for appeal. (See People v. Burgener (2003) 29 Cal.4th 833, 869 [confrontation issue waived by failure to object in the trial court].)
Even if the constitutional claims had not been waived, we would nonetheless reject them. The United States v. Owens (1988) 484 U.S. 554 (Owens) addressed what constitutes effective confrontation. Owens found that the confrontation clause only guaranteed an opportunity for effective cross-examination, not a cross-examination that was effective from the defendant’s standpoint. “The weapons available to impugn the witness’[s] statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.” (Id. at p. 560.) When the witness takes the stand at trial, and is subject to cross-examination, “the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness’[s] demeanor satisfy the constitutional requirements.” (Ibid.) Indeed, citing California v. Green (1970) 399 U.S. 149, the United States Supreme Court recently in Crawford v. Washington (2004) 541 U.S. 36, reiterated this principle: “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” (Id. at p. 60, fn. 9.) Here, Talbert appeared at trial and was subject to cross-examination. While that examination was not effective because of Talbert’s “no comment” responses, he did provide some responses, and the jury was able to observe his demeanor. Further, the parties were free to argue the impact of his recalcitrant behavior on his credibility and on the issues in the case.
In any event, even if admission of Talbert’s prior testimony violated the confrontation clause, the violation was harmless beyond a reasonable doubt. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140; Brown v. United States (1973) 411 U.S. 223, 231-232; People v. Anderson (1987) 43 Cal.3d 1104, 1128; People v. Song (2004) 124 Cal.App.4th 973, 982.) It did not contribute to the verdict, that is, it was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
Talbert’s prior testimony was insignificant in relation to everything else before the jury. On its face, Talbert’s ambiguous response to the question of whether he knew appellant, “No, no comment,” was favorable to appellant, to the extent it was understood to mean that Talbert did not know appellant. Even if it can be implied that Talbert’s “no comment” meant that he knew appellant and simply did not wish to say so, it was redundant of other evidence and of minimal relevance to the case. Price and Talbert were together when Price placed a call, inferentially to appellant, Price’s next door neighbor and fellow gang member. Talbert was a member of a gang that was an ally of appellant’s gang. It is certainly reasonable to infer that since Price knew appellant and Talbert, appellant also knew Talbert.
Moreover, whether Talbert knew appellant was of little relevance. Appellant was tied to the shooting by Calhoun’s unequivocal identification of him to police at the scene and subsequent identification at the field showup, by the black shirt seized in the search of appellant’s apartment and by the live 7.62 by 39-millimeter bullet manufactured by T.C.W., found at his residence, matching some of the bullet casings found at the scene of the shooting. The evidence that appellant knew Price, was as likely to link appellant to the shooting as evidence of whether he also knew Talbert.
For the reasons stated, we also do not find any due process violation by admission of Talbert’s prior testimony. The challenged evidence was insignificant to the trial in terms of the time it consumed, its import and its relevance. The comparatively brief admission of evidence not directly beneficial to the prosecution did not render the trial fundamentally unfair and hence violative of due process. (People v. Goodwillie (2007) 147 Cal.App.4th 695, 735.)
IV
PITCHESS HEARING
A. Pitchess Motion
Before trial, appellant filed a Pitchess motion supported by his attorney’s declaration. The motion sought materials from the police department personnel files of Officers Harden, Saenz, Garcia and Rocha, relating to claims of their dishonesty, falsification, fabrication and planting of evidence.
More specifically, the requested materials included the identity of individuals who (1) accused any of the officers for acts of misconduct, (2) were interviewed as potential witnesses to the accusations of such misconduct, (3) accused the officers of making false, misleading or inaccurate statements or committing any other misconduct during any official internal affairs or other investigation conducted by the Investigation Department or any other agency, (4) were interviewed as potential witnesses to the misconduct. In addition, defendant sought (5) the dates and locations of all of the misconduct, (6) all statements of witnesses and other evidence pertaining to the acts of misconduct, (7) the discipline imposed as a result of such misconduct, (8) all statements and evidence obtained as a result of any internal investigation concerning the arrest of appellant, (9) the date of birth of the named officers, (10) a list of all other law enforcement agencies which had previously employed the officers, as well as information pertaining to that employment, and (11) any other material which was exculpatory or which impeached the credibility of the officers, including material which reflected acts of misconduct which occurred more than five years prior.
Defense counsel’s supporting declaration stated: The requested evidence was material and relevant. The four named officers searched appellant’s apartment and collectively lied about recovering ammunition. Officer Harden also lied by reporting that appellant admitted membership in the 40 Avalons, incorporating these fabrications into his report, and perjuring himself at the preliminary hearing. The report said that Officer Saenz found the ammunition, while Officer Harden testified at the preliminary hearing that he did.
The declaration further stated that appellant denied doing the shooting, having any ammunition in his apartment, having ever previously met Officer Harden or telling any officer he was a gang member. He claimed that the officers who searched his apartment planted the ammunition and that the prosecution would likely attempt to connect him to the shooting with the ammunition and his alleged gang membership. He asserted that the requested information was necessary to impeach the officers’ credibility. The declaration also stated that the requested files were in the exclusive possession and control of the investigating department.
The trial court denied the motion, finding defense counsel’s declaration inadequate because, “[a]ll I basically have here is a bald denial that any of the things in the police reports happened without any indication of what did happen.” “[A] factual unsupported denial is not sufficient to establish the requisite plausible factual foundation.”
B. Appellant’s contention
Appellant contends that the trial court’s denial of his Pitchess motion without conducting an in camera review of the requested personnel records violated his state and federal due process rights. He argues that his claims, that (1) the officers planted the 7.62 by 39-millimeter bullet, and (2) Officer Harden lied when he stated that appellant admitted membership in the 40 Avalons, were material to the issues and warranted the requested in camera review.
C. Standard of review
We review a trial court’s ruling on a Pitchess motion for abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.) That discretion is broad. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)
D. Applicable law
In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discover an officer’s personnel records if the information contained in them is relevant to his ability to defend against the charge. To obtain disclosure of police personnel records, a defendant must submit affidavits establishing “good cause.” (Evid. Code, § 1043, subd. (b)(3); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) Good cause exists when the defendant demonstrates (1) materiality of the requested material to the subject matter of the pending action, and (2) a reasonable belief the agency has the type of information sought. (Evid. Code, § 1043, subd. (b)(3); Warrick, supra, at pp. 1016, 1019.) “This two-part showing of good cause is a ‘relatively low threshold for discovery.”’ (Id. at p. 1019.)
To show that the requested information is material, a defendant is required to “establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Warrick, supra, 35 Cal.4th at p. 1021.) A showing of materiality requires the defendant to set forth a “specific factual scenario” of officer misconduct applicable to his or her case that establishes a “plausible factual foundation” and articulates a valid theory of admissibility for the information sought. (Id. at pp. 1019; 1025.) “That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024-1025.) A “plausible scenario of officer misconduct is one that might or could have occurred.” (Id. at p. 1026.) The trial court does not determine whether the defendant’s version of events is persuasive. (Ibid.)
E. Planting evidence
The trial court did not abuse its discretion by refusing to order production of the personnel records of any of the four officers pertaining to the claim of planting evidence. While demonstrating good cause requires a low threshold (Warrick, supra, 35 Cal.4th at p. 1019), defendant’s motion did not meet even that minimal requirement.
Appellant’s claim that the identified officers planted the 7.62 by 39-millimeter bullet in his apartment is implausible on its face. As respondent points out, it depends upon the unlikely premise that, “Harden was carrying around 7.62-millimeter ammunition to plant on someone.” Officer Harden responded to the scene of the shooting. After interviewing Calhoun, he, along with other officers, proceeded directly to appellant’s home. Officer Harden detained appellant and then searched the apartment, finding one 7.62 by 39-millimeter bullet, manufactured by T.C.W., in a closed drawer. The supporting declaration fails to provide an inkling as to how Officer Harden could have possibly anticipated that a 7.62 by 39-millimeter bullet casing manufactured by T.C.W. would be found at the crime scene, that he would be involved in promptly capturing appellant minutes later, and, how he could procure that type of bullet in the brief time between his receipt of the shots-fired call and his search of appellant’s apartment. Infringing an officer’s privacy rights on so slender a thread is unjustified.
As the only claim of wrongdoing against Officers Saenz, Garcia and Rocha, pertains to planting of evidence, and this claim is implausible, no discovery against these officers is justified. Similarly, no discovery of Officer Harden’s personnel records based on the alleged planting of evidence is appropriate.
F. Lying about gang membership
In his declaration supporting appellant’s Pitchess motion, defense counsel stated that appellant “never made any admission regarding gang membership,” and Officer Harden committed perjury when he testified that appellant had admitted membership in 40 Avalon to him. “In actuality, [appellant] had never met Harden before. Moreover, [appellant] has never admitted membership [in] 40 Avalon to an LAPD officer.”
A review of Officer Harden’s testimony reveals that appellant’s alleged admission of gang membership was only one of the factors that contributed to Harden’s opinion that appellant was a member of the 40 Avalon gang. Other factors included the area in which police had had contact with appellant, the “people that he’s been associating with,” and certain tattoos on appellant’s arms. On his left tricep, appellant had the “older Milwaukee Brewers logo, which is a four-finger glove with an 0 in the center.” This logo was a common sign for the 40 Avalons; “for all intents and purposes it’s a four-finger mitt, one, two, three and four and zero signifying the 40 Avalons.” On his right tricep, appellant displayed an Anaheim Angels logo, also “a common used symbol for the A standing for Avalons.” Finally, appellant had a tattoo indicating his gang moniker, “Green Eyes.”
Officer Harden identified the tattoos from recent photographs. Defense counsel stipulated that the photographs were of appellant.
We need not determine whether the trial court abused its discretion when it denied appellant’s request for Pitchess discovery on this issue. Even assuming for the purpose of argument that appellant made a showing of good cause on this issue, any trial court error in denying Pitchess discovery was harmless in light of the fact that the ample evidence of appellant’s gang membership. (See People v. Samuels (2005) 36 Cal.4th 96, 110.)
V
CUMULATIVE ERROR
Appellant contends that even if none of the errors of law was alone sufficient to find prejudicial error, the cumulative effect of the errors denied him his federal and state Constitutional right to a fair trial guaranteed under article I, section 15 of the California Constitution and the Fourteenth Amendment to the United States Constitution.
“Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 844.) “Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Ibid.) Because we have concluded that appellant’s claims of error, other than the non-prejudicial claim that the search was illegal, are meritless, there are no errors to cumulate.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.