P. v. Allison

Filed 4/27/07 P. v. Allison CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,
Michelle R. Rosenblatt, Judge. Affirmed in part, reversed in part, and modified and remanded for further proceedings.

J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant Terrell Allison.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant Ollie James Bledsoe, Jr.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendants and appellants Terrell Allison and Ollie James Bledsoe, Jr., appeal from the judgment entered following a jury trial that resulted in their convictions for second degree robbery, assault with a firearm, and commercial burglary. Allison was sentenced to a term of 62 years in prison. Bledsoe was sentenced to a term of 76 years four months in prison.

Allison, joined by Bledsoe where applicable, contends the trial court erred by precluding him from calling his accomplices attorneys as witnesses; failing to exclude testimony as a sanction for the prosecutions purported discovery violations; and denying his motion to bifurcate trial on the gang enhancement. He further asserts that the use of his prior juvenile adjudication as a strike violated his rights to jury trial and due process; the evidence was insufficient to support a Penal Code section 186.22^[1]gang enhancement; and section 654 precluded imposition of sentence on count 18 (second degree commercial burglary).

Bledsoe, joined by Allison where applicable, contends his counsel was ineffective for failing to submit a pinpoint instruction regarding plea bargains; the trial court erred by allowing him to be impeached with the facts underlying his prior juvenile adjudication for robbery; there was insufficient evidence to corroborate his accomplices statements regarding the crimes; and the cumulative effect of the alleged errors requires reversal.

Both appellants assert the evidence was insufficient to support their convictions for the robbery of Suwen Cui.

We reverse Bledsoes convictions on counts 19 through 30, related to the North Hills Citibank robbery. We order Allisons sentence on count 18 stayed pursuant to section 654. In all other respects, we affirm

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Peoples evidence.

(i). North Hills Citibank Robbery.

Shortly after 9:00 a.m. on June 16, 2003, three African-American men robbed a Citibank branch located in North Hills. The three robbers entered the bank and loudly ordered employees and customers to the floor. One of the robbers jumped over the teller counter and took $3,000 from head teller Maria Ortega, as well as cash from the teller station drawers, and placed it into a bag. Meanwhile, another robber pulled a mask over his face, put a semiautomatic gun to bank employee Armen Sebastians neck, and ordered Sebastian to the floor. The third robber accosted customer Timothy Prescott at the teller counter and pulled Prescotts cellular telephone from his hand. One of the tellers, while crouched on the floor near her teller station, pressed the silent alarm button.

The robber who had jumped the counter looked at the tellers and exclaimed, You pressed the alarms. Did you just press the alarms? The robber who was holding the gun shouted, Time, time, lets go. The robbers left the building, driving away in a white, early 1990s Honda Accord. They made off with approximately $13,281.

(ii) South Pasadena Bank of the West robbery.

On September 8, 2003, at approximately 10:40 a.m., appellant Allison, Leiron Daniels, and Keishawn Watts, wearing nylon stocking masks, entered a South Pasadena Bank of the West branch and ordered customers and employees to the ground. One of the robbers forced unarmed security guard Alejandro Alviar to the ground at gunpoint. The gunman then stayed near the door. The other two jumped over the teller counter and took money from the teller drawers. One of the robbers put the money in his pocket. The gunman demanded money from customer Suwen Cui.

Suddenly one of the robbers yelled, Lets go, lets go, and all three men ran from the bank. The robbers drove off in a stolen, gray, 1992 Honda which had been parked outside. One of the customers wrote down the vehicles license plate number, and the car was later found abandoned in a nearby alley. Approximately $9,000 was taken in the robbery.

During the robbery, Watts dropped his Nextel cellular telephone in the bank. The telephone contained contact information for Bledsoe and other persons. Information in the telephone ultimately led police to Watts, Daniels, and appellants.

(iii) La Crescenta Citibank robbery.

Evidence of a third, uncharged robbery was admitted against appellant Bledsoe only, pursuant to Evidence Code section 1101, subdivision (b), as evidence of motive, intent, preparation, plan, knowledge, and identity. On June 24, 2003, at approximately 9:30 a.m., Daniels, Watts, and a third man known as Drawers entered a La Crescenta Citibank branch yelling, its a robbery, everybody on the floor. They were wearing nylon stocking masks over their faces. One robber jumped over the teller counter, told tellers to open the vault, took money from one of the tellers, and jumped back over the counter. A second robber asked other tellers for money in large bills, and they complied by placing cash into the robbers duffle bag. A third man, armed with a gun, stayed near the banks entrance.

A white car was parked near the Citibank, with the engine running; more than one person was inside. A stolen 1991 Honda Accord sped up and came to a screeching halt across the street from the white car. The driver of the Accord ran and entered the white car, followed by a passenger who entered the white cars trunk. The white car then sped off. The Accord, which was left abandoned on the street, had a punched ignition. Wattss fingerprint was found inside the Accord.

(iv) Bledsoes involvement in the robberies.

The evidence of Bledsoes involvement in the robberies came primarily from Daniels and Watts, who testified for the People as a condition of their plea agreements. Both men testified that Bledsoe was a shot caller, i.e., a high-ranking member, of the Rollin 60s gang. Bledsoe organized and facilitated the Bank of the West robbery, which both Watts and Daniels admitted committing with appellant Allison, at Bledsoes direction. Watts testified that in the summer of 2003 he stole Hondas for Bledsoe, with the understanding they would be used in bank robberies. At Bledsoes direction, Watts stole a Honda the night before the Bank of the West robbery and parked it near the bank. The next morning, Bledsoe telephoned Watts to wake him up. Bledsoe then drove, or arranged transportation for, Watts, Daniels, and Allison to the site where the stolen Honda had been parked. Bledsoe then provided Allison, Watts, and Daniels with gloves, nylon stocking masks, and a bag or backpack for the loot. Bledsoe provided a gun to Allison. Bledsoe instructed the men to don their masks as soon as they were in view of surveillance cameras; to take loose cash and avoid the blow-up money, i.e., dye packs used to assist in the detection of stolen cash; and to leave the bank after approximately 30 seconds. Bledsoe also orchestrated the robbers actions during the robbery and getaway, dictating which man would jump the teller counter and which one would hold the floor with the gun, and telling the robbers to get in the trunk, or lie down in the back seat, of the getaway car to avoid detection. Bledsoe had a police scanner in his car and used it to monitor police communications regarding the robbery. He was to use his cellular telephone to notify the robbers in the bank when too much time had elapsed, using a chirp feature on the phone. Bledsoe told Daniels he had had others conduct surveillance of the bank, and that an elderly, unarmed security guard was stationed inside. Bledsoe instructed Daniels not to let the security guard activate an alarm button located on his belt.

After the men carried out the robbery as instructed, they returned to Allisons residence where, along with Bledsoe, they divided the robbery proceeds. Watts informed Bledsoe that he had dropped his cellular telephone. That evening, Bledsoe and Watts drove back to South Pasadena, hoping to find it in an alley behind the bank. It was not there.

Watts testified at trial that he had only committed one robbery at Bledsoes direction, the aforementioned Bank of the West robbery.

Daniels testified that he committed three bank robberies at Bledsoes direction: the South Pasadena Bank of the West robbery with Watts and Allison; the La Crescenta Citibank robbery with Watts and Drawers; and a robbery of another Citibank with Allison and Drawers, in which a dye pack exploded in the trunk of the car while the group was making their getaway. Daniels described the circumstances of, and Bledsoes participation in, the La Crescenta Citibank robbery.

When Daniels initially spoke with police, he mistakenly stated that the robbery in which the dye pack exploded was the June 16, 2003 robbery of the North Hills Citibank. It was subsequently determined that Allison was in custody on June 16, and therefore could not have been a participant; and that no dye pack had been taken from the North Hills bank. Daniels was then taken by a detective to view various banks at which robberies had occurred, to enable him to identify the third bank he, Allison, and Drawers robbed. Daniels did not recognize the North Hills Citibank and realized that he had mistakenly confused it with another Citibank branch.

Both Watts and Daniels described threats they had received regarding their testimony in the case from Bledsoe and other inmates. They each testified that they had initially lied to authorities, and were testifying in hopes of avoiding prison time.

(v) Cellular telephone records.

Bledsoes cellular telephone contained an address for Daniels. Telephone company records established that the user of Bledsoes cellular telephone traveled from South Central Los Angeles to South Pasadena, where Bledsoe resided, and back again during the morning of the Bank of the West robbery. Telephone records indicated that that evening, Bledsoes telephone again traveled to South Pasadena and then back to South Central Los Angeles.

(vi) Gang enhancement.

The People presented evidence to prove a section 186.22 criminal street gang enhancement.^[2]

2. Defense case.

Defendant Allison presented evidence that he had been released from prison in July 2003, and that Daniels had therefore been mistaken when he told police Allison had committed the June 16, 2003 North Hills Citibank robbery.

Defendant Bledsoe presented evidence that in 2001 he had become a boxer and had been offered professional boxing contracts. He was also enrolled in college and was receiving financial aid. Bledsoe denied involvement in the robberies. He had ceased being a gang member in 2002.

3. Procedure.

Trial was by jury. Allison was convicted of eight counts of second degree robbery ( 211), nine counts of assault with a semi-automatic firearm ( 245, subd. (b)), and one count of second degree commercial burglary ( 459). The jury found true allegations that the crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); that Allison personally used a handgun during commission of the crimes ( 12022.5, subd. (a)(1)) (all counts); 12022.53, subd. (b) (counts 1 8)); and that a principal personally used a handgun during commission of the robberies ( 12022.53, subd. (e)(1)). In a bifurcated proceeding, the trial court found true the allegation that Allison had suffered a prior strike conviction ( 667, subds. (b) (i), 1170.12, subds. (a)-(d)). Pursuant to the Three Strikes law, the trial court sentenced Allison to a term of 62 years in prison. It imposed a victim restitution award, a restitution fine, a suspended parole revocation fine, a court security assessment, and a crime prevention fine.

Bledsoe was convicted of 13 counts of second degree robbery ( 211), 9 counts of assault with a semi-automatic firearm ( 245, subd. (b)); 6 counts of assault with a firearm ( 245, subd. (a)(2)); and 2 counts of second degree commercial burglary ( 459). The jury found true allegations that the crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) and that a principal personally used a handgun during commission of the robberies ( 12022.53, subds. (b), (e)(1)). Bledsoe admitted suffering a prior strike conviction. ( 667, subds. (b) (i), 1170.12, subds. (a)-(d)). Pursuant to the Three Strikes law, the trial court sentenced Bledsoe to a term of 76 years 4 months. It imposed a victim restitution award, a restitution fine, a suspended parole revocation fine, a court security assessment, and a crime prevention fine.

Allison and Bledsoe appeal.

DISCUSSION

1. Denial of bifurcation of gang allegation.

Prior to trial, Allison and Bledsoe moved to bifurcate the section 186.22 gang allegations from trial of the substantive crimes, on the ground the gang evidence was more prejudicial that probative (Evid. Code, 352). The trial court denied the bifurcation motion, finding the gang evidence was highly relevant and more probative than prejudicial. Allison, joined by Bledsoe, argues that denial of their bifurcation motion violated their due process rights. We disagree.

a. Additional facts.

At trial, the Peoples gang expert testified, inter alia, to the following. The Rollin 60s Crips was the largest African-American criminal street gang in south Los Angeles, with 1200 documented members. Appellants, as well as Daniels and Watts, were members of the Rollin 60s gang. Bledsoe was known as a shot caller, i.e., a high ranking gang member who directs the activities of younger gang members. Allison was a rider, i.e., a gang member willing to travel to a rival gangs territory and put in work as in shooting with guns. The experts described the territory claimed by the Rollin 60s gang and the major subsets of the gang. The Rollin 60s gang identified their territory with particular symbols and graffiti. Gangs sometimes feud with, or form alliances with, other gangs.

In gang culture, loyalty to the gang is everything. Persons join the gang by being beaten by gang members or committing a crime as part of their initiation. Gang members are expected to do what the gang wants them to do. In the gang lifestyle, fancy cars, jewelry, wheel rims, and the like are status symbols. Gang members are expected not to speak to police or snitch on other gang members. Gang members who break this code are beaten, shot, or killed by the gang. Gangs often intimidate witnesses.

The gang expert testified that he had investigated hundreds of crimes committed by persons claiming to be Rollin 60s gang members, including murder, attempted murder, carjacking, robbery, narcotics sales, vehicle theft, vandalism, and witness intimidation. The gangs primary activities were robberies and narcotics sales. In the experts opinion, the charged bank robberies were committed for the benefit of the Rollin 60s gang because the gang would derive monetary benefit from the crimes and because commission of the crimes would enhance the gangs reputation. The robberies were committed in association with, and at the direction of, a criminal street gang because they were carried out by younger gang members, and were organized and directed by Bledsoe.

To prove the predicate crimes required by section 186.22, the expert testified about the convictions of two Rollin 60s members who had been convicted of attempted murder of three rival gang members, and assault on a police officer, respectively.

b. Discussion.

To prove a section 186.22 gang enhancement, the prosecution must prove that the crime for which the defendant was convicted was 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. ( 186.22, subd. (b)(1); People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) The prosecution must prove (1) the gang is an ongoing association of three or more persons with a common name, identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who have engaged in a pattern of criminal gang activity by committing, attempting, or soliciting two or more enumerated offenses (the predicate offenses) during a statutorily defined period. (People v. Hernandez, supra, at p. 1047.)

Some of the evidence produced to establish the enhancement -- for example, evidence of the predicate offenses offered to establish the pattern of criminal activity -- may be inadmissible to prove the underlying crime charged against the defendant. (People v. Hernandez, supra, 33 Cal.4that p. 1049.) Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendants actual guilt. (Id. at p. 1049.) Thus, a trial court has discretion to bifurcate trial of the gang enhancement from trial of guilt where appropriate. (Ibid.)

On the other hand, unlike a prior conviction allegation, a criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) Therefore, less need for bifurcation generally exists with a gang enhancement than with a prior conviction allegation. (Ibid.) The trial courts discretion to deny bifurcation of a charged gang enhancement is broader than its discretion to admit gang evidence when a gang enhancement is not charged. (Id. at p. 1050.) To the extent evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice is dispelled, and bifurcation is unnecessary. (Id. at pp. 1049-1050.) Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged a court may still deny bifurcation. (Id. at p. 1050.) We review the trial courts ruling for abuse of discretion. (Ibid.)

We discern no abuse of discretion here. Gang enhancements were charged on the crimes and were found true by the jury. Moreover, the gang allegations were inextricably intertwined with the crimes. The Peoples theory was that Bledsoe, a senior gang member, used his position in the gang to recruit younger gang members to carry out bank robberies for him. Evidence about defendants gang membership, the gangs primary activities, and the gangs hierarchy, for example, helped explain why defendants were acting together in the commission of the crimes and how Bledsoe was able to recruit numerous people to carry out the robberies (see generally People v. Hernandez, supra, 33 Cal.4th at p. 1051). The evidence thus bolstered the Peoples theory that Bledsoe was the robbery mastermind. Thus, much of the gang evidence was probative on the issue of appellants guilt of the charged robberies. Certainly, evidence that another gang member had been found guilty of attempted murder in an unrelated incident would not have been admissible at a trial limited to guilt, but that evidence was also not particularly inflammatory. Those convictions were offered to prove the charged gang enhancement, so no problem of confusion with collateral matters would arise, and they were not evidence of offenses for which a defendant might have escaped punishment. (Ibid.)

Appellants argue that they did not inject their gang status into the crime, in contrast to People v. Hernandez. But Hernandez does not hold that gang evidence is proper only if the defendants referenced their gang status during the crime; to the contrary, Hernandez simply holds that such circumstances may militate against bifurcation. Here, as we have explained, the gang evidence was directly relevant to the circumstances of the commission of the crimes. In short, the trial court did not abuse its discretion by denying the bifurcation motion.

2. Issues related to pretrial discovery and attorney testimony.

After entering into negotiated dispositions of their cases, and shortly before or during trial, Watts and Daniels provided additional information to the prosecutor, primarily regarding the additional bank robbery Daniels committed at a Granada Hills Citibank, and Wattss theft of a car for use in the La Crescenta Citibank robbery. The information was disclosed during interviews with the prosecutor, one or more detectives, and, with one exception, in the presence of counsel for Watts or Daniels. These circumstances gave rise to two issues at trial. First, Allison sought to call Wattss and Danielss attorneys as witnesses to Wattss and Danielss interviews with the prosecutor. The trial court refused to compel the attorneys testimony. Second, appellants sought exclusion of portions of Wattss and Danielss testimony on the ground the prosecutor had committed discovery violations. The trial court excluded some of Danielss testimony related to the additional uncharged robbery of the Granada Hills Citibank on the ground it was provided too late.

On appeal, appellants challenge both of the trial courts rulings. They assert that Danielss and Wattss testimony should have been entirely excluded as a discovery sanction. They further assert that the trial court erred by refusing to compel testimony from Danielss and Wattss attorneys. We conclude both arguments lack merit.

a. Additional facts.

Because the circumstances related to both issues are intertwined, we recite the factual basis underlying both contentions together.

(i) Discovery of new information near and during trial.

In his initial statement to police, Daniels identified Allison as one of the participants in the June 16 North Hills Citibank robbery, and Allison was charged accordingly. On October 7, 2004, Allisons counsel informed the parties that Allison had been incarcerated on that date, and therefore could not have committed the crime. That charge against Allison was dismissed.

On October 21, 2004, Daniels pleaded guilty pursuant to a negotiated disposition to one count of robbery related to the Bank of the West robbery and one count of commercial burglary related to the North Hills Citibank robbery. Defense counsel was provided with a transcript of the plea.

On November 15, 2004, the prosecutor learned for the first time that Wattss fingerprint had been found on one of the cars used in the uncharged La Crescenta Citibank robbery. The information, including all existing reports regarding the La Crescenta robbery, was turned over to the defense on November 19, 2004. Prior to this date, the prosecutor had been unaware of the La Crescenta Citibank robbery. Information regarding Wattss fingerprint was verbally relayed to defense counsel prior to November 19, 2004.

Late on the afternoon of November 18, 2004, Watts pleaded guilty to one count of robbery and one count of commercial burglary in regard to the Bank of the West robbery, pursuant to a negotiated disposition.

When the parties appeared before the court on November 19, 2004, defense counsel complained that he had not received any discovery regarding any conversations with Daniels since Danielss October 21 plea. The prosecutor represented that her only interview with Daniels was memorialized in a one-page report which did not concern the circumstances of the robberies but related solely to a letter the People had received, apparently from Danielss girlfriend. Unsurprisingly, given that he had pleaded only the day before, the People had conducted no interview of Watts.

On November 22 and 23, 2004, the People provided to the defense various additional materials related to the La Crescenta Citibank robbery, and a supplemental report regarding an interview with Daniels. The trial court ordered the People to make Daniels and Watts, with their counsel, available for interview by the defendants.^[3]On November 23, the prosecutor stated she had not had a chance to interview Watts. The trial court opined it was critical the prosecutor do so and provide the information to appellants. The trial court tentatively ruled the evidence of the uncharged La Crescenta Citibank robbery was not admissible in the Peoples case-in-chief.

The People interviewed Daniels and Watts on the first date their attorneys were available, November 30 and December 2, respectively. Reports of those interviews were provided to the defense, and included the fact that Watts denied involvement in the La Crescenta Citibank robbery. Watts, however, admitted stealing the car used in the crime at Bledsoes direction.

Voir dire commenced on December 6, 2004.

A jury was empanelled on December 15, 2004. During the lunch hour on that date, Daniels admitted to the prosecutor that he had participated in at least one other bank robbery with Allison. Present at that interview were two detectives, a custodial officer, the prosecutor, and Danielss attorney, Rodriguez. The prosecutor explained that during an earlier interview with police, Daniels stated he had participated in one robbery in which a dye pack exploded in the trunk of the getaway car. There had been a series of approximately seven or eight bank robberies in the summer of 2003 with the same modus operandi. Using a process of elimination and information regarding which robberies involved a dye pack, the prosecutor concluded the robbery to which Daniels referred was of a Granada Hills Citibank. The prosecutor sought to offer evidence of the uncharged Granada Hills Citibank robbery to explain Danielss confusion about which robberies he had committed with Allison. The trial court deferred ruling on the issue, observing that the discovery was late.

On December 16, 2004, after opening statements, counsel for Allison indicated he wished to call Wattss and Daniels attorneys to testify about what transpired when Watts and Daniels were interviewed by the prosecution. Attorney Rodriguez, counsel for Daniels, and Attorney Bennett, counsel for Watts, appeared and, perceiving a potential conflict of interest, requested counsel. The parties were instructed to confer regarding a suitable time for an Evidence Code section 402 hearing.

On December 17, 2004, the prosecutor informed the court and defense counsel that over the last several days, she had spoken to Daniels and Watts in the presence of their attorneys, and the men had been more forthcoming with new information regarding the crimes. Daniels was being taken by officers to view various robbery locations, to attempt to determine which ones he participated in at Bledsoes direction. The trial court queried why the interviews had not transpired before trial. The prosecutor replied that she had interviewed the men, but they had not been as forthcoming. The trial court stated that if the prosecutor intended to offer any new information, it would have to conduct a hearing on the issue.

On December 21 and 22, 2004, the prosecutor provided information to defense counsel regarding supplemental interviews with Daniels conducted on December 15, 16, and 22, 2004, including information on which banks Daniels had recognized when taken to various locations by a detective. During the December 16 interview, Danielss counsel had been absent for the first hour.

(ii) Trial courts ruling.

On January 3, 2005, the trial court conducted an Evidence Code section 402 hearing to address discovery issues and the question of whether Danielss and Wattss attorneys could be called as witnesses. Allisons counsel indicated he was interested

in . . . the representations made, the discussions between counsel, regarding the testimony, the statements that were witnessed by the attorney, when other people were present . . . . as well as any influences brought to bear upon Watts and Daniels that would cause them to give a different version of events. Counsel for attorneys Rodriguez and Bennett objected to the attorneys being called as witnesses. They argued, inter alia, that the attorneys would be testifying basically against [their] client[s]; that plea negotiations were privileged, and the interviews were precisely within the scope of plea negotiation; that policy considerations prohibited invading the attorney-client privilege and the attorney-client relationship; that requiring such testimony could create a conflict; and that other persons were present at the discussions with Daniels and Watts who could testify thereto.

The trial court ruled, inter alia, that the potential for a conflict existed because the attorneys might be placed in the position of testifying to their clients inconsistent statements. The court accordingly employed a balancing test to determine whether the attorneys could be compelled to testify. It pointed out that other witnesses, i.e., the investigating officers, were available to testify; that the only basis upon which defense counsel claimed the investigating officers testimony was insufficient was that the investigating officers were on the prosecutions side; and that testimony by the attorneys might create a conflict and destroy the attorney-client relationship.

Subsequently, the trial court excluded evidence of the Granada Hills Citibank robbery. It concluded that, whether or not the prosecutor had been diligent in interviewing Daniels, the information came too late to give defendants a fair chance to defend against it. Daniels, however, was allowed to explain he was confused about which robbery Allison participated in and reference the dye pack robbery, but could not say anything further than that.

b. The trial court did not abuse its discretion by failing to order exclusion of the entirety of Wattss and Danielss testimony as a sanction for purported discovery violations.

Appellants assert that the prosecutor failed to comply with the courts discovery orders in a full and timely fashion and that as a result, Wattss and Danielss testimony should have been suppressed in toto. They urge the prosecutor consistently played hide-the-ball and did what she could to prevent Allisons attorney from learning the salient details of the accomplices impending testimony. In support, appellants assert the prosecutor: (1) waited for a month after Danielss plea to reveal a one-page report regarding Daniels; (2) failed to timely interview Watts; (3) withheld copies of physical evidence which implicated Bledsoe in the June 24th Citibank robbery and (4) provided a mere two-or three-page report after interviews had been conducted. We are unpersuaded.

First, appellants did not request that the trial court exclude the accomplices testimony in toto. Instead, they requested that Danielss testimony and other evidence about the circumstances of the Granada Hills Citibank robbery be excluded. That request was granted in large part. Therefore, appellants cannot now complain that the trial court failed to grant a remedy they did not request. (Cf. People v. Hayes (1990) 52 Cal.3d 577, 619 [counsels failure to obtain a ruling is fatal to defendants appellate contention, for a party objecting to the admission of evidence must press for an actual ruling or the point is not preserved for appeal.].)

Moreover, even assuming arguendo that counsels remarks could be construed as a request for complete exclusion, appellants argument fails. The obligation of the People to disclose information to the defense is dependent upon whether that obligation has a constitutional or statutory basis. As articulated by the United States Supreme Court in Brady v. Maryland (1963) 373 U.S. 83, the prosecution has a sua sponte obligation, pursuant to the due process clause of the United States Constitution, to disclose to the defense information within its custody or control which is material to, and exculpatory of, the defendant. [Citations.] This constitutional duty is independent of, and to be differentiated from, the statutory duty of the prosecution to disclose information to the defense. (People v. Bohannon(2000) 82 Cal.App.4th 798, 804; see also People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471-1472.) Brady exculpatory evidence is the only substantive discovery mandated by the United States Constitution. A criminal defendant does not have a general constitutional right to discovery. (People v. Superior Court (Barrett)(2000) 80 Cal.App.4th 1305, 1314.) Here, because no exculpatory evidence was withheld, no constitutional violation is at issue. Thus, we are concerned only with the prosecutors statutory duties under section 1054.1.

Californias criminal discovery statutes, section 1054 et seq., set forth an almost exclusive procedure for discovery in criminal cases. (People v. Jordan (2003) 108 Cal.App.4th 349, 357.) Under this statutory scheme, the prosecutor must disclose: (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [] (b) Statements of all defendants. [] (c) All relevant real evidence . . . of the offenses charged. [] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. [] (e) Any exculpatory evidence. . . . (Id. at p. 357.) These disclosures must be made 30 days prior to the trial, or immediately if the information becomes known within 30 days of trial, unless good cause is shown why disclosure should be denied, restricted, or deferred. (Id. at p. 358.) A trial court may enforce the discovery provisions by ordering immediate disclosure, contempt proceedings, continuance of the matter, and delaying or prohibiting a witnesss testimony or the presentation of real evidence. (Ibid.; People v. Superior Court (Barrett), supra, 80 Cal.App.4th at p. 1313.) The exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial. (People v. Jordan, supra, at p. 358; People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758.) We review the trial courts ruling on discovery sanctions for abuse of discretion. (See People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.)

Here, appellants failed to make such a showing. First, we are unconvinced the record shows any discovery violation in the first instance. Certainly the trial court never made such a finding. Allisons contention that the prosecutor played hide-the-ball is merely argument with little or no support in the record.

The record before us does not demonstrate that the single-page letter referenced by Allison was either a defendants statement, exculpatory evidence, or particularly relevant. In any event, it appears the report was provided to the defense at least by November 21, 2004, and a jury was not empanelled until December 15, approximately three weeks later. Therefore, even assuming arguendo the document should have been turned over sooner, appellants have made no showing of prejudice.

Nor does the record suggest the People failed to timely interview Watts. Watts did not plead until the afternoon of November 18, 2004; thus, the People could not have interviewed him prior to that date. The prosecutor interviewed him on December 2. Given the intervening Thanksgiving holiday and the necessity of conducting an interview when Wattss counsel was present, we do not view this lapse of approximately eight working days as demonstrating willful conduct motivated by a desire to obtain a tactical advantage at trial.

Although appellants imply that a report memorializing interviews was deficient because it was only two or three pages long, they provide no factual basis or legal authority in support of this assumption.

Finally, appellants contention that the prosecutor withheld copies of physical evidence which implicated Bledsoe in the June 24th Citibank robbery appears to reference Wattss fingerprint being found on a vehicle used in the La Crescenta Citibank robbery. The prosecutor first learned of the fingerprint on Monday, November 15, 2004. The prosecutor had not known of the La Crescenta Citibank robbery until that time. The prosecutor provided the information regarding the fingerprint, and all reports on the La Crescenta Citibank robbery, to the defense on Friday, November 19. Thus, the information was first discovered within 30 days of trial. While there was a lapse of a few days between the prosecutors discovery of the information and disclosure to the defense, nothing about the circumstances suggested the brief delay was undertaken to obtain a tactical advantage at trial. Further, as we have noted, a jury was not empanelled until approximately three weeks later. Thus, appellants have made no showing of prejudice. (See generally People v. Hammond (1994) 22 Cal.App.4th 1611, 1624 [a trial is not a scripted proceeding, and there is no general obligation to gather evidence].)

Thus, even assuming arguendo that the prosecutor committed discovery violations, the extreme remedy of exclusion of Wattss and Danielss testimony was unwarranted. As noted, the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial. (People v. Jordan, supra, 108 Cal.App.4th at p. 358; People v. Gonzales, supra, 22 Cal.App.4th at p. 1758.) Based on our review of the record, neither has been shown here. Indeed, the trial court excluded evidence of the Granada Hills Citibank robbery in order to ensure the defendants suffered no prejudice. Further exclusion of the witnesses testimony was unwarranted. There was no abuse of discretion.

c. Failure to compel the testimony of Wattss and Danielss attorneys.

We likewise find no merit in the contention that denial of Allisons request to present testimony from Danielss and Wattss attorneys violated their Sixth Amendment confrontation rights.

Evidence Code section 954 provides that a client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . . . A confidential communication means information transmitted between a client and his or her lawyer in the course of the attorney-client relationship, which discloses the information to no third persons other than those present to assist the defense. (Evid. Code, 952.) The interviews at issue were conducted by the prosecutor, with an investigating officer and the witnesss attorneys present. Because the prosecutor and an investigating officer were present, the communications were not protected by the attorney-client privilege. (See People v. Snow (2003) 30 Cal.4th 43, 87 [defendants statement was not a confidential communication because it was meant to be communicated by the attorney to the prosecutor]; Gonzales v. Municipal Court (1977) 67 Cal.App.3d 111, 118.)

Nor did California Rules of Professional Conduct, rule 5-210, require exclusion of the attorneys testimony. That rule provides, A member shall not act as an advocate before a jury which will hear testimony from the member except in circumstances not present here. Rule 5-210 is not directly applicable, because the attorneys for Daniels and Watts were not acting as advocates before a jury. Moreover, despite Rule 5-210, there is no categorical rule preventing a party from calling an attorney as a witness in a criminal proceeding in which the attorney is acting as counsel. (People v. Earp (1999) 20 Cal.4th 826, 879.) An attorney acting as counsel in a case is as competent to testify as any other witness. (People v. Guerrero (1975) 47 Cal.App.3d 441, 444; Romeo v. Jumbo Market (1967) 247 Cal.App.2d 817, 820 [an attorney participating in a trial is competent to give testimony; the real objection to such testimony is not one of competence, but of legal ethics].) For example, under some circumstances a defendant may call his own attorney or the prosecutor as a witness. (People v. Marquez (1992) 1 Cal.4th 553, 574 [a trial court may not deny the defendant the right to present impeaching evidence through the testimony of his counsel, notwithstanding the provisions relating to testimony by counsel in the Rules of Professional Conduct].)

Nonetheless, here the trial court properly recognized that requiring the attorneys to testify could have jeopardized the attorney-client relationship between Daniels and Watts and their attorneys. Daniels and Watts were originally charged as defendants. They were entitled to conflict-free representation. (Wood v. Georgia (1981) 450 U.S. 261, 271; People v. Dunkle (2005) 36 Cal.4th 861, 914; Vapnek, et. al, California Practice Guide: Professional Responsibility (The Rutter Group 2006) [] 6:820, p. 6-136.) An attorney owes absolute and complete fidelity to his or her client. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 288-289; Vapnek, et. al, California Practice Guide: Professional Responsibility (The Rutter Group 2006) [] 3:187, p. 3-73.) An attorney must withdraw from representation, absent the clients informed written consent, whenever he or she knows or should know he or she ought to be a material witness in the clients cause. (People v. Dunkle, supra, at p. 915.) An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.  (People v. Guerrero, supra, 47 Cal.App.3d at p. 445; cf. People v. Rodriguez (1981) 115 Cal.App.3d 1018, 1021 [To require a criminal defendants attorney to testify against his client on a material issue so diminishes the attorneys effectiveness on behalf of his client that it infringes on the right to counsel].)

According to the terms of Danielss and Wattss plea agreements, the trial court was to determine whether Daniels and Watts upheld their end of the deal and testified truthfully. Attorneys Rodriguez and Bennett had been involved in negotiating the plea deals. During the interviews in question, Rodriguez and Bennett were apparently negotiating to ensure that the newly disclosed crimes would also be covered by the immunity agreement. Requiring the attorneys to testify to the substance of conversations between the prosecutor, investigating officer, and their clients, regarding at least in part the truthfulness of their clients statements at various times, could have put the attorneys in the untenable position of impeaching their own clients impeachment which could, in turn, potentially have jeopardized the efficacy of the plea agreements which the attorneys had negotiated. Under these circumstances, there was a significant possibility the attorneys would have been compelled to withdraw from representing Daniels and Watts.

Because of the potential for interference with the relationships between Daniels and Watts and their attorneys, the trial court properly balanced the interests at stake. The determination whether an attorney ought to testify ordinarily is based on an evaluation of all pertinent factors, including the significance of the matters to which the attorney might testify, the weight the testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established. [Citation.] (People v. Dunkle, supra, 36 Cal.4th at p. 915.) In the instant case, these factors militated against calling the attorneys as witnesses. An investigating officer was present at the interviews and was always available to testify about them, as is the norm in the vast majority of cases. Defense counsels only argument as to why the investigating officers testimony would be insufficient was that the officer was on the prosecutors side. This was an insufficient basis upon which to require the attorneys testimony. Under these circumstances, there was no violation of appellants Sixth Amendment rights. (See generally People v. Brown (2003) 31 Cal.4th 518, 545-546.)

Moreover, exclusion of the attorneys testimony was clearly harmless. (People v. Earp, supra, 20 Cal.4th at pp. 880-881 [erroneous exclusion of evidence requires reversal only when there has been a miscarriage of justice, i.e., it is reasonably probable that upon hearing the excluded evidence, the jury would have reached a result more favorable to the defendant].) The jury was well aware of the weaknesses in Wattss and Danielss testimony, including that both men were not originally forthcoming with prosecutors and that Daniels was confused about which robberies he committed, and with whom. Appellants cross-examined Daniels and Watts at length. Allison ultimately called Detective Richard Lee to testify regarding the December interviews of Daniels. Thus, the evidence elicited at trial showed that both Daniels and Watts had changed their stories; that Daniels incorrectly told authorities Allison took part in the June 16 crimes; and that both Watts and Daniels initially lied, or were not forthcoming about, many facts, in order to minimize potential punishment.

Additionally, the evidence clearly showed Daniels and Watts were testifying in order to take advantage of favorable plea agreements, by which they might receive only probation for their roles in the crimes. Daniels, for instance, testified he knew he had been originally charged with many more counts and could face a lot more prison time if he did not accept the plea agreement. Additional testimony by counsel could have added little, if anything, to the evidence already before the jury.

Littlefield v. Superior Court (1982) 136 Cal.App.3d 477, 482-483 is instructive. There, the court reasoned that the fact that a witness testifies under some grant of whole or partial immunity is itself a basis for an argument on credibility. In Littlefield, it was undisputed that a witness had given several different versions of the facts. Under such circumstances, calling the witnesss attorney to further attack his credibility was unnecessary. (Ibid.; see also People v. Earp, supra, 20 Cal.4th at pp. 878-879 [any error in precluding defendant from calling attorney was harmless where the evidence in question was refuted by other evidence]; People v. Flores (1977) 71 Cal.App.3d 559, 565 [where accomplice testified against defendant, his bias was clearly made known to the jury through disclosure of the immunity from prosecution for the crime, and by the very nature of his testimony and his acknowledged participation in the attack, obviating any need to invade attorney-client privilege]; People v. Goldstein (1982) 130 Cal.App.3d 1024, 1033 [error in precluding attorney from testifying about witnesss prior inconsistent statements was harmless beyond a reasonable doubt, where the attorneys proposed testimony had already been elicited during cross-examination of the witness].) In sum, no constitutional violation occurred, and any purported error in precluding the testimony was harmless.

3. Sufficiency of the evidence.

Appellants challenge the sufficiency of the evidence in two respects: first, to prove the gang enhancement; and second, to prove the robbery of one of the victims, Suwen Cui. We conclude the evidence was sufficient to support the verdicts.

a. Standard of review.

When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence which 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. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) We draw all reasonable inferences in support of the judgment. [Citation.] (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

b. The evidence was sufficient to support the gang enhancements.

Allison, joined by Bledsoe, asserts the evidence was insufficient to support the gang enhancement. Appellants urge that no solid evidence showed the robbery was perpetrated with the specific intent to promote the Rollin 60s gang. We disagree.

Section 186.22 provides for an enhancement when a defendant 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 . . . . (People v. Hernandez, supra, 33 Cal.4th at p. 1047; People v. Hill (2006) 142 Cal.App.4th 770, 773.) It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930; People v. Romero (2006) 140 Cal.App.4th 15, 18 [To prove a gang allegation, an expert witness may testify about criminal street gangs.].)

Here, the evidence was sufficient. Certainly, there was ample evidence the crimes were committed in association with the Rollin 60s gang. The evidence showed appellants, as well as most of the robbery participants, were active members of the Rollin 60s gang. The crimes were planned and facilitated by Bledsoe, a powerful, high-status gang member. Bledsoe had the power to direct the activities of the more junior gang members, and used this power to recruit robbery participants. For example, Bledsoe directed Watts to steal cars for Bledsoes use in committing the robberies. In short, the evidence showed a senior gang member masterminded robberies actually carried out by other gang members as he directed. These facts provided sufficient evidence the crimes were committed at the direction of, or in association with, the Rollin 60s gang. (See, e.g., People v. Romero, supra, 140 Cal.App.4th at pp. 18-20; People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1199.)

Contrary to appellants argument, there was likewise sufficient evidence to show the crimes were committed with the specific intentto promote, further, or assist in any criminal conduct by gang members. Officer David Ross, a gang expert, testified that the bank robberies in the instant case benefited the Rollin 60s Crips gang for two reasons. First, the gang would derive monetary benefit from the robberies. Second, the robberies would enhance the reputations of the participating gang members, both within and without the Rollin 60s gang. As Ross explained, other individuals, both within [the] Rollin 60s and their enemies or rivals, would hear about this robbery, and know who did it, and that just enhances the reputation of the gang that they have the ability and the guts, so to speak, to get in a vehicle and drive all the way to South Pasadena out of their neighborhood, commit a take-over bank robbery with a gun involved, and then flee the scene and then get away with it.

Appellants, relying upon the majority opinion in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, urge that the intent element was unproven because the crimes were not committed to facilitate any other criminal acts. In Garcia, the defendant, a gang member, took money and a bicycle from a victim outside a liquor store. When committing the robbery, the defendant identified himself by gang and gang moniker. The Ninth Circuit concluded the evidence was insufficient to support the gang enhancement. (Id. at p. 1103.) Garcia explained, there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. There is nothing on the record that connects the turf-oriented nature of the gang with the commission of robberies generally, or, more importantly, with the commission of this robbery in particular. There is no testimony that protection of turf enables any other kind of criminal activity of the gang. The experts testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery . . . . (Ibid.)

Appellants argue that the same is true here. The robberies were not related to a turf war or gang retaliation, nor were they carried out to frighten residents living in gang territory. The robbers did not reference or rely upon their gang membership to intimidate victims during the crimes. Further, contrary to the gang experts testimony, Watts and Daniels testified that they used their portion of the loot to purchase items for themselves or pay rent, not buy items for the gang.

We are unconvinced. Garcia is not binding on this court. (People v. Burnett (2003) 110 Cal.App.4th 868, 882 [intermediate federal authority is not binding in matters involving state law].) Moreover, the majority opinion in Garcia has not been embraced by California courts. (See People v. Romero, supra, 140 Cal.App.4th at p. 19; People v. Hill, supra, 142 Cal.App.4th at p. 774.) These cases held that the majority opinion in Garcia misinterprets section 186.22. As People v. Romero explained, By its plain language, the statute requires a showing of specific intent to promote, further, or assist in any criminal conduct by gang members, rather than other criminal conduct. (People v. Romero, supra, at p. 19.) Thus, the statute does not require an intent to further criminal conduct beyond the charged crime. (Id. at p. 17; see also People v. Hill, supra, at p. 774 [rejecting Garcias analysis].)

The statute does not require the specific intent to benefit the gang . . . . What is required is the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .  (People v. Morales, supra, 112 Cal.App.4th at p. 1198.) Thus, where the evidence shows the defendant (1) intended to commit the crimes, (2) intended to commit them in association with fellow gang members, and (3) knew the other participants were members of the defendants gang, the evidence is sufficient to prove the defendant intended to assist criminal conduct by his fellow gang members within the meaning of the statute. (Ibid.; see also People v. Romero, supra, 140 Cal.App.4th at pp. 19-20.)

Such a showing was made here. Appellants clearly intended to commit the robberies; intended to commit them in association with fellow gang members; and knew the other participants were Rollin 60s members. The evidence was sufficient, therefore, to establish the crimes were carried outwith the specific intent to assist in criminal conduct by gang members. Appellants are of course correct that a section 186.22 enhancement may be supported by evidence crimes were carried out in the course of gang retaliation or turf wars. However, the authorities cited by appellants do not stand for the proposition that these are the only circumstances in which the gang enhancement may be established.

c. Sufficiency of the evidence to prove the ro