Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of San Diego County, Marguerite L. Wagner, Judge, Super. Ct. No. SCN183576
McINTYRE, J.
Jordan Andrew Potts and United Levao (together Defendants) appeal from judgments entered upon their convictions of murdering Jesse Watson for the benefit of a criminal street gang. Defendants jointly assert that the trial court erred by refusing to accept a stipulation to the gang furtherance allegation. Alternatively, they argue that the allegation should have been removed from the trial by a motion to bifurcate and that their respective counsel provided ineffective assistance by not seeking to bifurcate the issue. They also argue that the trial court erred when it stayed the ten-year gang enhancement, rather than striking it.
Potts also contends that the trial court erred when it: (1) erroneously admitted certain evidence, and (2) instructed the jury. Levao contends that his counsel provided ineffective assistance by failing to request that his trial be severed from Potts's trial and that the trial court erred when it denied his motion to suppress incriminating statements he made to his mother and the police.
We agree that the ten-year gang enhancements must be stricken and the judgments modified so as to impose a 15-year minimum parole eligibility term. We affirm the judgments as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The Deep Valley Bloods (Bloods) and Deep Valley Crips (Crips) are rival criminal street gangs in Oceanside, California. Bloods members wear red to show gang affiliation and Crips members wear blue. Defendants are members of the Bloods.
On the evening of August 31, 2004, Watson, his foster mother, Anita Garcia, and his two siblings, Lisa and David, were moving out of a condominium located in an area of Oceanside, California claimed by the Crips. Lisa and Anita were cleaning the condominium while Watson and his friend, Kenny Brown, were loading belongings into a truck. Although Watson was not a Crips gang member, he was wearing blue at the time and had friends affiliated with the Crips.
As Watson placed an item into the truck, Levao approached from the front of the truck and fired a shotgun at him. Potts also approached and fired multiple shots from a handgun at Watson, with one shot hitting Levao in the left arm. Watson died at the scene, having suffered two shotgun wounds to his back that collapsed his lungs and a gunshot wound to his arm that severed both arteries.
Defendants fled to a waiting red Nissan Sentra driven by Maurice Christiansen. Neighbors observed the car leaving, with one person recording the license plate number. After driving away, Potts and Christiansen dropped Levao off and then abandoned the Sentra, which had been stolen, near an elementary school. While still at the school, Potts fired a round from the shotgun and then dumped it along with the jacket previously worn by Levao into some bushes behind the school grounds. Police later recovered blood matching Levao's DNA profile from the Sentra and the jacket.
Potts shot himself in the leg with the handgun, but told police that he had been shot during a drive-by shooting. Levao also called the police and reported that he had been shot in a drive-by shooting. Police quickly connected Defendants to Watson's murder based on witness descriptions.
Defendants and Christiansen were charged with first degree murder and it was alleged that they personally used a firearm causing great bodily harm and committed the crime for the benefit of a gang. Christiansen pleaded guilty to involuntary manslaughter, with a maximum sentence of four years in prison, in exchange for his truthful testimony. A jury found Defendants guilty and found true the enhancement allegations. The trial court sentenced each of them to state prison for 25 years to life for the murder conviction, added a consecutive term of 25 years to life for the personal use of a firearm enhancement, and stayed the sentence on the gang enhancement. Defendants timely appealed.
DISCUSSION
I. Joint Contentions
A. Introduction of Gang Evidence
Defendants join in each other's arguments regarding admission of gang evidence to prove the gang enhancement allegation against them. They assert the trial court erred by refusing to accept a stipulation to the gang furtherance allegation. Alternatively, they argue that the allegation should have been removed from the trial by a motion to bifurcate and that their respective counsel provided ineffective assistance by not seeking to bifurcate the issue because absent the gang evidence, the jury would have not returned a guilty verdict against them. Finally, they claim they received ineffective assistance when counsel failed to advise them to admit the gang enhancement and that the trial court violated their due process rights by admitting the gang evidence because the enhanced term could not have been imposed due to the sentence for the other charges against them. We reject their contentions.
Any felony committed for the benefit of a criminal street gang is subject to enhanced punishment (Pen. Code, § 186.22, subds. (b)(1), (f)) and it is well-established that expert opinion testimony about gang culture and habits is admissible to prove a gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1049 (Hernandez).) (All undesignated statutory references are to the Penal Code.) A gang enhancement is attached to the charged offense and inextricably intertwined with that offense; accordingly, evidence of gang affiliation "can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Id. at p. 1049.) Nonetheless, a trial court has the discretion to bifurcate the trial of the gang enhancement from the trial of guilt if it determines that the gang evidence is "so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Ibid.)
As a preliminary matter, we reject Defendants' argument that the trial court erred by refusing to accept a stipulation to the gang furtherance allegation because the record reveals that they offered to stipulate only as to gang membership and not all elements necessary to establish that they committed the alleged crime for the benefit of a criminal street gang. (See generally CALCRIM No. 1401.)
We also reject Defendants' argument that their respective counsel provided ineffective assistance by not advising them to admit the gang furtherance allegation or seeking to remove this allegation from the trial by a motion to bifurcate.
To establish ineffective assistance of counsel, Defendants bear the burden of showing that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and that absent counsel's error, it is reasonably probable that the verdict would have been more favorable to them. (Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) "We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions" (People v. Holt (1997) 15 Cal.4th 619, 703) and will reverse on the ground of inadequate assistance of counsel only if the record affirmatively discloses that counsel had no rational tactical purpose for his act or omission (People v. Zapien (1993) 4 Cal.4th 929, 980).
We reject Defendants' claim that counsel provided ineffective assistance by not advising them to admit the gang furtherance allegation when it became clear from the evidence that there was no viable basis for a manslaughter conviction. First, admitting this allegation would have seriously undercut Defendants' defense that they were not the shooters. Moreover, although the evidence of gang membership was strong, the jury could have rejected the evidence suggesting that Defendants committed the crime for the benefit of a gang, a necessary element in proving the gang enhancement allegation, particularly since it was not entirely clear why Defendants choose this victim. (CALCRIM No. 1401.) Thus, it was a reasonable tactical decision for counsel to not admit the gang enhancement.
Finally, even if Defendants had admitted the gang enhancement allegation, at least some of the gang-related evidence would have been admissible on the issues of motive and intent. (Hernandez, supra, 33 Cal.4th at p. 1049.) While motive was not an element of the crimes, its presence tends to establish guilt (CALCRIM No. 370) and describes the reason a person chooses to commit a crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 503-504.) Here, the gang evidence provided some context to what would otherwise appear to a lay jury to have been a random and senseless murder. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551). In any event, as discussed below, Defendants cannot show that counsel's performance prejudiced them.
We similarly reject Defendants' claim that counsel was ineffective in failing to seek bifurcation of the gang allegation because such a motion would have likely been unsuccessful and thus Defendants suffered no prejudice due to the omission. Evidence of Defendants' gang membership, the manner in which gangs operate and the rivalry between the Bloods and the Crips was relevant to show a motive to kill Watson, a person in rival gang territory, wearing rival gang's color, and who associated with rival gang members, in order to compel respect for the gang and to enhance their standing within the gang. (People v. Martin (1994) 23 Cal.App.4th 76, 81 [where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial].) The evidence was not particularly inflammatory as it did not suggest that Defendants had previously been involved in any gang-related crimes. Because it was not reasonably probable that the trial court would have granted a motion to bifurcate the gang allegation, Defendants have failed to establish prejudice flowing from the failure to bring such a motion.
We reject Defendants' assertion that admission of the gang evidence was merely a tactical ploy to prejudice them because the enhanced term could not have been imposed due to the sentence for the other charges against them. This argument presupposes that the gang evidence was only admissible as to the gang enhancement allegation, an argument we have rejected.
Even if Defendants could show that counsel's performance was deficient in any respect, they provided no evidence showing the outcome of the case would have been different because the case against them was very strong.
Descriptions of the suspicious individuals seen on the night of the murder given by three of Watson's neighbors matched Potts (African-American with a large afro) and Levao (Latino or Hispanic, short hair and flannel shirt or jacket). Brown saw Levao shoot Watson with a shotgun and Anita identified Levao as the person carrying the shotgun. Additionally, Brown's description of the second man standing where the gunshots originated matched Potts.
Christiansen described the events of the evening, including how he and Potts stole the Nissan, picked up Levao and drove to the complex where Watson resided. At the complex, Christiansen heard Levao state "there he goes," saw Defendants leave and then return to the car after gunfire erupted with Levao complaining that Potts had shot him. Christiansen described how Levao gave Potts his bloody jacket for disposal, watched Potts dispose of the jacket and shotgun and later helped the police recover the jacket. DNA recovered from the jacket and the inside of the stolen Nissan matched Levao.
Finally, in recorded telephone calls from jail, Potts described where he hid the shotgun and the police then recovered the shotgun. A firearms expert concluded that it had been used during the crime. In these calls Potts also claimed that any witnesses who identified him at the scene had to be lying because all they could have seen was his big afro and red hat he had been wearing, but then described how Watson had run and how he ran "because I was you know, clicking [the gun] and shit, it was empty."
Accordingly, even assuming defense counsels' performance was deficient, there was no prejudice in light of the strong evidence inculpating Defendants.
B. Sentence for the Gang Enhancements
Defendants contend the ten-year gang enhancement imposed and stayed for the first degree murder count under section 186.22(b)(1) should be stricken because the enhancement does not apply where a defendant is sentenced to a life term. The People admit that the trial court "mistakenly" imposed the ten-year gang enhancement, but assert that nothing needs to be done because the abstracts of judgment properly reflect that the sentences were stayed.
Subdivision (b) of section 186.22 establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang. (People v. Lopez (2005) 34 Cal.4th 1002, 1004 (Lopez).) Subdivision (b)(1)(C), which provides for a ten-year enhancement for a defendant who has committed a violent felony, does not apply when the violent felony is "punishable by imprisonment in the state prison for life . . . ." (§ 186.22, subd. (b)(5).) Instead, subdivision (b)(5) applies and requires imposition of a minimum term of 15 years before the defendant may be considered for parole. (Lopez, supra, 34 Cal.4th at p. 1007.) This is true even though it will have no practical effect on a first degree murder sentence, which has a minimum parole eligibility term of 25 years. (Id. at pp. 1008-1009.)
Accordingly, the trial court erred in imposing and staying the ten-year enhancements under section 186.22, subdivision (b)(1)(C). We modify the judgments by striking the ten-year gang enhancements and imposing 15-year minimum parole eligibility terms under section 186.22, subdivision (b)(5). (Lopez, supra, 34 Cal.4th at pp. 1004, 1011.)
II. Potts's Appeal
A. Admission of Attempted Prison Escape Evidence
1. Facts
Before trial, the prosecution sought to introduce evidence that Potts tried to escape from jail to demonstrate consciousness of guilt. The trial court granted the motion after defense counsel admitted that the evidence could be interpreted as suggestive of consciousness of guilt, expressed hope that the prosecutor would not introduce the evidence, and stated that he had not filed any opposition because he was "at a loss to come up with anything that would not be frivolous."
At trial, the prosecution presented evidence that Potts tried to escape from jail in April 2006. While investigating a broken window in the jail cell that Potts shared with another inmate, detectives found a hammer, chisel, jail-made knife, rope made with sheets inside the cell and a cell phone on Potts's cell mate. The detectives also noticed a depression dug in the cinder block wall of the cell. Potts admitted that he hit the window with a metal object in an attempt to escape from jail. Potts was courteous and respectful during the investigation and the detectives later determined that he was not responsible for bringing the contraband into the cell.
The following week, another search of Potts's jail cell prompted by a beeping smoke alarm revealed that an air vent had been covered with paper and some rivets holding a large metal plate to the wall had been removed. A search of the cell uncovered non-jail issue clothing, a first aid kit and some metal pipe.
2. Analysis
Potts claims the admission of this evidence was irrelevant, unduly prejudicial and deprived him of due process and, to the extent his claims have been waived by defense counsel's failure to object, he argues ineffective assistance of counsel. Potts asserts there was no overwhelming evidence showing he was one of the shooters and there was a reasonable possibility the jury would have returned verdicts of a lesser offense and found one or both allegations untrue had it not been exposed to this uncharged crimes evidence. We conclude on the merits that there was no error.
While we agree with Potts's general contention that an innocent person is as likely to desire freedom from incarceration as a guilty person, it is well settled that evidence of an escape attempt is admissible to demonstrate consciousness of guilt. (People v. Kipp (2001) 26 Cal.4th 1100, 1126; People v. Terry (1970) 2 Cal.3d 362, 395, overruled on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381.) Accordingly, the evidence was relevant and we reject the suggestion that the prejudicial effect of the evidence outweighed its probative value. (Evid. Code, § 352.) In the exercise of its broad discretion, the trial court could reasonably conclude that the impact of evidence suggesting that Potts planned to escape from jail paled in comparison to the senseless shooting of another person in the back. Potts has failed to establish that an objection to the evidence would have been sustained, and thus has failed to establish that his counsel was ineffective. (See People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make meritless objection does not constitute ineffective assistance of counsel].) In any event, any possible error was harmless given the strong evidence again Potts. (See section I.A., supra.)
B. Limiting Instructions
Potts contends that even if we conclude that the trial court properly admitted the escape and gang evidence, reversal is still required because the jury was not instructed on the limited purpose of this evidence. (See CALCRIM Nos. 372 & 1403.) We disagree.
On request, the trial court must instruct the jury as to the limited purpose for which evidence is admitted when such evidence "is inadmissible as to another party or for another purpose[.]" (Evid. Code, § 355.) There is no sua sponte duty, however, to give a limiting instruction on gang evidence. (Hernandez, supra, 33 Cal.4th at p. 1051.) Potts argues that Hernandez was wrongly decided and should be reconsidered by that court. Be that as it may, we are bound by the Supreme Court's decision and therefore reject Potts's contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In any event, the gang evidence was admissible to prove the gang enhancement and show a motive for the murder. Indeed, the prosecutor told the jury during closing argument that the motive for the murder was "two Deep Valley Blood gang members looking to kill a Crip." The prosecution never suggested that Defendants were guilty just because they were gang members and none of the evidence of prior gang violence pertained to Defendants. A limiting instruction regarding the gang-related evidence simply would not have affected the outcome of the trial. (Hernandez, supra, 33 Cal.4th at p. 1054 [any failure to give limiting instruction on gang-related evidence harmless when it "would not have significantly aided defendants under these facts or weakened the strength of the evidence of guilt the jury properly could have considered"].) (To the extent Levao joins in Potts's argument regarding the lack of a limiting instruction for the gang evidence, we reject his claims for the reasons stated above.)
Similarly, the trial court had no duty to provide a limiting instruction regarding the uncharged attempted escape evidence. (People v. Benavides (2005) 35 Cal.4th 69, 93-94.) Moreover, the escape evidence was brief and innocuous given the facts of the crime and the prosecutor properly argued that the evidence should be considered as to Potts's consciousness of guilt. On this record, there is little likelihood that the jury improperly relied on the escape evidence to prove Potts's guilt of the charged crimes or that the outcome of trial was affected by the lack of this additional instruction.
III. Levao's Appeal
A. Ineffective Assistance of Counsel
Levao contends his trial counsel was ineffective in failing to move for severance of his trial from that of Potts because evidence solely pertaining to Potts prejudiced the jury against him. Specifically, he asserts that the prosecution presented highly prejudicial evidence regarding Potts's escape attempts and played redacted recordings of telephone calls made by Potts where Potts described the events at Watson's house, used obscenities and terms later identified as gang terminology and admitted to a gang affiliation. He further contends counsel was ineffective in failing to present an eyewitness identification expert because Brown and Anita identified him as the person with the shotgun with varying degrees of certainty. Assuming, arguendo, that reasonably competent counsel would have moved to sever and presented an eyewitness identification expert, Levao has failed to show prejudice.
When two or more defendants are jointly charged with a crime, they must be tried jointly unless the trial court orders separate trials. (§ 1098.) Separate trials are the exception. (People v. Alvarez (1996) 14 Cal.4th 155, 190.) In essence, Levao claims he was prejudiced by being associated with Potts because Potts attempted to escape, admitted being at the scene, and gang affiliation. As discussed above, the evidence of Potts's escape attempts was not inflammatory (see section II.A., supra) and given the strong evidence of Levao's guilt (see section I.A., supra), it is not likely that evidence suggesting Potts's consciousness of guilt impacted the jury's verdict as to Levao.
Additionally, because the prosecution redacted Potts's telephone calls from jail to eliminate any reference to Levao and the trial court instructed the jury that it could not use the statements of one of the defendants against the other, we fail to see how Levao was prejudiced by being associated with a person who belonged to a criminal street gang given the evidence of Levao's own gang involvement. Under these circumstances, it is not reasonably likely that the jury based its verdict on Levao's association with Potts, rather than on the evidence presented at trial establishing Levao's guilt.
Finally, the record does not support Levao's assertion that he was prejudiced by defense counsel's decision to not have an identification expert testify regarding how memory works, attention, coding, storage retrieval, suggestive lineups and the impact of stress on memory recall. Although Brown and Anita identified Levao as the person with the shotgun and Lisa described an individual matching Levao's description as the person carrying the shotgun, this was not the only evidence connecting him to the crime.
Hill heard an individual exclaim that he had been "hit" and gave the license plate number of a suspicious vehicle to police. Levao suffered a gunshot wound on the night of the murder and police found his blood inside a car with a matching description and license plate number. Police also found Levao's blood on the jacket discarded by Potts after the murder and described by Lisa and three other witnesses. Accordingly, any assumed error by defense counsel in not calling the expert resulted in no prejudice and the lack of prejudice defeats Levao's claim of ineffective assistance of counsel.
B. Incriminating Statements to Mother and Police
1. Facts
On the night of the murder, Levao, then 15-years old, was hospitalized for his gunshot wound and the following day police took him into custody and transported him to the Oceanside Police station to be interviewed. Levao's mother was present and followed the police to the station. The police advised Levao of his Miranda rights, but did not tell him he was a suspect in a murder case. (Miranda v. Arizona (l966) 384 U.S. 436.) Levao initially denied involvement in the crime, but ultimately began to make incriminating statements to police.
During the questioning, Levao asked to speak with his mother. The police ultimately complied with the request, told Levao that he could have "some private time" with his mother, left the room and closed the door, but monitored and recorded the conversation between Levao and his mother. During the conversation, Levao admitted that he and Potts shot the "guy" who died because "those guys [were] always shoot[ing] at us . . . ."
The People moved to introduce these statements and Levao moved to suppress them. After an evidentiary hearing, the trial court denied the motion to suppress Levao's incriminating statements to the police and his mother. Thereafter, the prosecutor stated that she intended to use the statements Levao made to his mother and reserved the option of introducing the videotaped police interview, indicating that if she decided to use the videotape, she would give counsel sufficient time to redact any reference to Potts. At trial, however, the prosecution never introduced this evidence.
2. Analysis
Levao argues that the trial court erred in denying his motion to suppress and that the erroneous denial of the motion prejudiced him because the ruling impacted his counsel's trial strategy and deprived him of a fair trial. Specifically, he claims that defense counsel decided to not call an identification expert because the prosecution threatened to present his incriminating statements during rebuttal should the identification expert testify. He also claims he may have testified in his own defense had the motion been denied.
As a threshold matter, we agree with the Attorney General's argument that Levao's claims of prejudice are speculative. Additionally, we fail to see how general expert testimony regarding possible weakness in eyewitness identification testimony would have opened the door to the introduction of Levao's incriminating statements. In any event, even assuming the denial of the suppression motion caused his counsel to not call an identification expert, Brown and Anita's eyewitness testimony was only part of the evidence connecting Levao to the crime. (See section III.B., supra.) On this record, there is no merit to Levao's speculative prejudice contentions.
DISPOSITION
The judgments are modified to strike that portion of the sentences on the ten-year gang enhancements and to impose 15-year minimum parole eligibility terms under section 186.22, subdivision (b)(5). As so modified, the judgments are affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting the striking of the gang enhancement and imposition of the 15-year minimum parole eligibility term and to forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.