Opinion
G044053 Super. Ct. No. 08NF3566
12-23-2011
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP ANTHONY SANDERS, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Glenda Sanders, Judge. Affirmed.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Phillip Anthony Sanders of one count each of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and evading a peace officer while driving recklessly (Veh. Code, § 2800.2) and found true the allegation he committed those crimes for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1) (section 186.22(b)(1)). Sanders admitted serving a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced him to an aggregate prison term of seven years.
Further code references are to the Penal Code unless otherwise indicated.
Sanders argues (1) the gang expert's testimony was insufficient to establish the gang's primary activities, as required to prove the enhancement under section 186.22(b)(1); (2) the trial court erred by allowing the gang expert to testify to the hearsay statements forming the basis for his opinion that two suspects involved in the crimes were gang members; and (3) the jury instruction for the gang enhancement was erroneous because it did not require the prosecution to prove Sanders knew the two suspects were gang members. We disagree with each argument and affirm.
FACTS
I.
The Robbery and Police Chase
At around noon on May 9, 2008, Okjin Lee made a $1,600 deposit at her bank in Buena Park and left the bank with $938 in her purse. In her purse, she also carried credit cards, a cell phone, jewelry, and membership cards for Costco and Sam's Club. She walked to her car and, as she opened the car door, a young, tall, and slim African-American man wearing "loud" black-and-white baggy shorts approached her from behind and grabbed her purse. As Lee struggled to hold on to her purse, the man dragged her about two feet.
A silver- or gray-colored, American-made, four-door sedan pulled up and stopped. The man who took Lee's purse got into the driver's side rear passenger seat, and the car sped off. A witness dialed 911 to report the robbery.
Undercover narcotics detective Christopher Nyhus, who was driving within a few miles of the bank, heard a radio dispatch of the crime. As Nyhus drove toward the crime scene, he saw a car (a silver Pontiac Grand Am) matching the description given in the radio dispatch. Three African-American men were inside the car. Nyhus called for backup and followed the car as it drove onto the 91 Freeway. As the car travelled westbound on the freeway, the front seat passenger rolled down his window and threw out a cell phone and what appeared to be credit or identification cards.
As Nyhus followed the suspects as they travelled westbound on the 91 Freeway, numerous patrol cars soon arrived as backup and joined the pursuit. The patrol cars activated their lights and sirens and attempted to conduct a traffic stop. The suspects' car did not pull over but sped up, leading the police on a high-speed chase over several miles. One of the police officers involved in the chase identified Sanders as the driver of the car, which made abrupt and unsafe lane changes, tailgated other cars, and reached speeds of up to 100 miles per hour.
Sanders exited the freeway at Central Avenue. One police officer used a "pursuit intervention technique" to force the suspects' car to stop, by causing the suspects' car to spin out of control and come to rest with its left side pinned against some shrubbery. The man in the front passenger seat (Suspect 1) and the man in the rear passenger seat (Suspect 2) hopped out of the car and ran. Sanders, who had been driving, got out of the car and, ignoring repeated commands to stop, fled to a nearby fast food restaurant where he was arrested after a struggle. Police officers apprehended and arrested Suspect 1 and Suspect 2 nearby.
Police officers conducted a patdown search of Suspect 2 and found a total of $380 inside of his socks, and conducted a patdown search of Suspect 1 and found $301 in his right front pocket of his trousers. When Sanders was in the holding cell at the police station, police officers found a roll of money totaling $304 near his feet. Inside the car, police officers found Lee's purse, inside of which was her checkbook, credit cards, and California identification card. No cash was found in the purse. Police officers found Lee's Costco and Sam's Club membership cards along the side of the 91 Freeway.
II.
Gang Expert Testimony
Aaron Gutierrez, a gang detective with the Los Angeles County Sheriff's Department, testified as an expert witness on street gangs in general and a gang called the Nutty Blocc Crips in particular. After establishing his credentials and relating his experience, Gutierrez testified that at the time of the robbery, Nutty Blocc Crips was a criminal street gang with about 240 members, of whom 160 to 190 were active. Nutty Blocc Crips claimed as its territory the area of Compton in which the police pursuit ended. The gang's common symbol was the "NY" logo of the New York Yankees, which to the gang represented "Young Nutty," and the gang color was blue.
Gutierrez testified the primary activities of the Nutty Blocc Crips gang were robberies and shootings. Based on his investigation, Gutierrez testified Suspect 1 and Suspect 2 were active members of Nutty Blocc Crips at the time of the robbery. Gang members, Gutierrez testified, typically do not commit crimes with persons who are not gang members.
When presented with a hypothetical set of facts based on the facts of this case, Gutierrez concluded the crimes were committed for the benefit of, at the direction of, or in association with the gang, and promoted or assisted in criminal conduct by other gang members. By committing the crimes, the gang members could boost their status within the gang and enhance the gang's reputation within the community.
DISCUSSION
I.
The Gang Expert's Testimony Was Sufficient to Establish the
Gang's Primary Activities.
Sanders argues the jury's true finding on the gang enhancement allegations under section 186.22(b)(1) must be reversed because there was insufficient evidence the Nutty Blocc Crips gang engaged in one of the primary activities listed in subdivision (e) of section 186.22. For the same reason, he argues, the trial court erred by denying his motion under section 1118.1 to dismiss the gang enhancement.
Section 186.22(b)(1) states, in relevant part: "[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . ."
The phrase "criminal street gang" is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Among the criminal acts listed in section 186.22, subdivision (e) are assault with a deadly weapon, robbery, shooting at an inhabited dwelling or occupied motor vehicle, discharging a firearm from a motor vehicle, theft, and prohibited possession of a firearm. (§ 186.22, subd. (e)(1), (2), (5), (6), (25) & (31).)
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Evidence of past or present criminal acts listed in section 186.22, subdivision (e) is admissible to prove a criminal street gang's primary activities. (People v. Sengpadychith, supra, at p. 323.) A criminal street gang's primary activities may be established through expert testimony. (Id. at p. 324.)
Here, evidence of the primary activities of the Nutty Blocc Crips came from detective Gutierrez. Based on his personal investigation of 20 to 40 crimes, and conversation with another sheriff's deputy, he testified the primary activities of the Nutty Blocc Crips were robberies and shootings.
Citing In re Alexander L. (2007) 149 Cal.App.4th 605, Sanders argues Gutierrez's testimony lacked foundation and was not substantial evidence of the primary activities of the Nutty Blocc Crips. In In re Alexander L., the petition alleged the juvenile committed vandalism (tagging) for the benefit of a criminal street gang. (Id. at p. 609.) At trial, the gang expert's complete testimony on the gang's primary activities was this: "I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.'" (Id. at p. 611.) The court, reversing the true finding on the gang enhancement, concluded the expert's testimony lacked an adequate foundation and "[the expert]'s conclusory testimony cannot be considered substantial evidence as to the nature of the gang's primary activities." (Id. at p. 612.)
Gutierrez did reveal the basis for his opinion on the Nutty Blocc Crips' primary activities. Sanders argues Gutierrez's testimony was insufficient to establish the primary gang activities were robberies and shootings. We disagree. Gutierrez testified his research disclosed three shootings committed by Nutty Blocc Crips members and one shooting in which a Nutty Blocc Crips member was a victim. Three of the shootings were committed in 2008. When he testified, Gutierrez has been investigating criminal street gangs in Compton, including the Nutty Blocc Crips, for over 13 months. Based on his investigation into 10 robberies, Gutierrez testified he formed the opinion that Nutty Blocc Crips members were involved in robberies. This foundation was adequate to support Gutierrez's opinion.
Gutierrez was cross-examined and his opinions were tested. His testimony revealed crimes committed by gangs with similar names ending in "Crips" and uncertainty over which Crips gang committed which crimes. In addition, he testified that in some of the crimes, members of the Nutty Blocc Crips were only "potential suspects." Nevertheless, on balance, Gutierrez's testimony was sufficient to meet the statutory requirements.
II.
The Trial Court Did Not Err by Permitting the Gang Expert
to Reveal the Basis for His Opinions That Suspect 1 and
Suspect 2 Were Gang Members.
The gang enhancement under section 186.22(b)(1) does not require the defendant to be a gang member but only that the defendant committed the felony "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(b)(1).) Here, the prosecutor asserted the gang enhancement allegations were true because Suspect 1 and Suspect 2 were active members of the Nutty Blocc Crips gang and Sanders promoted, furthered, or assisted in their criminal conduct.
Sanders argues the trial court erred and denied him the right to confront witnesses under the Sixth Amendment to the United States Constitution by permitting Gutierrez to reveal the basis for his opinion that Suspect 1 and Suspect 2 were active members of the Nutty Blocc Crips gang. Sanders contends the prosecutor improperly used the hearsay statements in closing argument to prove the truth of the matter asserted.
Gutierrez testified his opinion was Suspect 1 and Suspect 2 were active members of Nutty Blocc Crips at the time the charged crimes were committed. Gutierrez testified his opinion that Suspect 1 was an active member of the Nutty Blocc Crips was based on the following: (1) in a police interview soon after the charged crimes were committed, Suspect 1 admitted he was a Nutty Blocc Crips gang member; (2) Suspect 1 had tattoos on his body which he admitted were gang tattoos; (3) in a consensual encounter with Gutierrez during the summer of 2008, Suspect 1 admitted he was a Nutty Blocc Crips gang member; and (4) Suspect 1's girlfriend told Gutierrez in an interview soon after the charged crimes were committed that Suspect 1 was a Nutty Blocc Crips gang member. Gutierrez testified his opinion that Suspect 2 was an active member of the Nutty Blocc Crips was based on the following: (1) during an investigation following a shooting at a sheriffs deputy, Suspect 2 was found with other gang members and detained in a "stronghold" area of the Nutty Blocc Crips claimed territory; and (2) in a consensual encounter with Gutierrez during the summer of 2008, Suspect 2 admitted he was a Nutty Blocc Crips gang member.
Gutierrez properly based his opinion that Suspect 1 and Suspect 2 were gang members on hearsay information and properly revealed the factual bases for his opinion. Experts may testify to opinions based on hearsay and, if questioned, may relate the information and sources on which they relied in forming those opinions. (People v. Gardeley (1996) 14 Cal.4th 605, 618-619; see also People v. Catlin (2001) 26 Cal.4th 81, 137.) The trial court has discretion "'to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.'" (People v. Gardeley, supra, at p. 619.)
Sanders does not argue that Gutierrez could not base his opinion on hearsay; rather, Sanders argues the hearsay relied on by Gutierrez was improperly admitted and used by the prosecutor in closing argument to prove the truth of the matter asserted. The prosecutor argued to the jury: "Suspect number one . . . he's the one who admitted during this investigation in an interview at Buena Park Police Department on May 9th of 2008 that he was, in fact, a Nutty Blocc Crips gang member. His girlfriend was also interviewed and she said he's a gang member. He's got tattoos that . . . he admitted . . . stood for 'Nutty Blocc.' We also had a field identification card . . . . He admitted to Deputy Gutierrez at one point that he was, in fact, a gang member. . . . [¶] Suspect number two, we have, again, this interview from this woman named Princess Ivy, who said suspect number two is a gang member. We have the field identification card from 2007, where suspect number two is contacted with number one and with the defendant. . . . [H]e admitted that he was a criminal street gang member from Nutty Blocc to Deputy Gutierrez."
The factual bases for Gutierrez's opinion were hearsay and could not be used as independent proof that Suspect 1 and Suspect 2 were active members of the Nutty Blocc Crips when the charged crimes were committed. (People v. Gardeley, supra, 14 Cal.4th at p. 619; see Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) The prosecutor may not urge the jury to use evidence for a purpose other than that for which it was admitted. (People v. Lang (1989) 49 Cal.3d 991, 1022.) Sanders did not, however, object to the prosecutor's argument and request admonishment of the jury and, therefore, forfeited any claim of prosecutorial misconduct. (People v. Ayala (2000) 23 Cal.4th 225, 284; People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Nonetheless, to foreclose a claim of ineffective assistance of counsel, we address the merit of Sanders's assertion of prosecutorial misconduct. "'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.) We view the prosecutor's statements "in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.)
In closing argument in this case, the prosecutor reminded the jury that Gutierrez had testified Suspect 1 and Suspect 2 were Nutty Blocc Crips members on the day the charged crimes were committed. Viewed in the context of the argument as a whole, the prosecutor's challenged statements were an explanation of the bases for Gutierrez's opinion, and we infer the jury understood them as such. The jury in this case was instructed it could use the statements used to support Gutierrez's opinion "only to evaluate the expert's opinion" and not to consider those statements "as proof that the information contained in the statements is true." As a reviewing court, we presume the jury relied on the instructions, not the arguments of counsel, in reaching its verdict. (People v. Morales (2001) 25 Cal.4th 34, 47.)
Sanders also argues his Sixth Amendment right to confront witnesses was violated when Gutierrez testified about the statements forming the basis for his opinion Suspect 1 and Suspect 2 were gang members because, under Crawford, supra, 541 U.S. 36, those statements were testimonial. We disagree. "As our appellate courts have repeatedly found consistent with the Supreme Court's Sixth Amendment precedent: 'Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned.'" (People v. Sisneros (2009) 174 Cal.App.4th 142, 153, quoting People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.) "Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion. Crawford itself states that the confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' [Citation.]" (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
Acknowledging this authority, Sanders argues his Sixth Amendment rights were violated because the out-of-court statements relied on by Gutierrez in forming his opinion were "admitted, presented, and argued by the prosecutor for the truth of the matters asserted." Crawford, supra, 541 U.S. 36, holds the confrontation clause bars admission of testimonial hearsay statements to prove the truth of the matter asserted. By mentioning the hearsay bases for Gutierrez's opinion in closing argument, the prosecutor did not admit that hearsay into evidence but, at most, arguably committed misconduct which, we have concluded, was not prejudicial.
III.
The Trial Court Correctly Instructed the Jury
on the Gang Enhancement Under Section 186.22(b)(1).
Sanders argues the jury instruction for the gang enhancement was erroneous because it omitted the requirement that he knew Suspect 1 and Suspect 2 were gang members. No such requirement exists; the instruction was correct.
Section 186.22(b)(1), the gang enhancement, states in relevant part: "[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . ." Section 186.22(b)(1) does not require the defendant to know his or her coperpetrator is a gang member.
In contrast, the substantive offense under section 186.22, subdivision (a) includes a knowledge requirement by stating: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . ." (Italics added.)
The jury in this case was instructed with CALCRIM No. 1401, which mirrors section 186.22(b)(1) by stating that, to prove the gang enhancement allegation, "the People must prove that: [¶] 1. The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; [¶] AND [¶] 2. The defendant intended to assist, further, or promote criminal conduct by gang members." The statutory language defining a crime is usually an appropriate and sufficient basis for a jury instruction. (People v. Williams (2009) 170 Cal.App.4th 587, 639.)
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.