P. v. Holmes

 

 

 

 

 

 

 

 

 

Filed 6/3/13  P. v. Holmes CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   REGINALD HOLMES,               Defendant and Appellant.

B236128         (Los Angeles County       Super. Ct. No. TA090560)

 

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Ronald S. Coen, Judge.  Reversed and remanded.

______

            John
Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.

______

 

            An amended information, filed on June 27, 2011, charged
Reginald Holmes with two counts of murder
(Pen. Code, § 187, subd. (a))href="#_ftn1"
name="_ftnref1" title="">[1]
and one count of being a felon in possession
of a firearm (former § 12021, subd. (a)(1)).  As to the murder counts, the amended
information alleged (1) firearm use enhancements under section 12022.53,
subdivisions (b), (c) and (d); (2) the special circumstances of multiple first
or second degree murders (§ 190.2, subd. (a)(3)) and lying in wait (§
190.2, subd. (a)(15)); and (3) a prior conviction for shooting at an inhabited
dwelling (§ 246) that qualified as a serious felony under section
667, subdivision (a)(1).  As to all three
counts, the amended information alleged that Holmes had (1) committed the
offenses for the benefit of, at the direction of or in association with a
criminal street gang within the meaning of section 186.22, subdivision
(b); (2) served four prior prison terms pursuant to section 667.5,
subdivision (b); and (3) suffered the prior conviction under section 246, which
constituted a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)).

            The
People’s theory at trial was that Holmes, a member of the Six Deuce Harvard
Park Brims, a Blood gang, obtained two firearms, a Colt .45 and a .380
semiautomatic, from a fellow gang member in the early morning of April 22,
2006, and several hours later either shot or had shot by his protégé in the
gang Patrick Hemingway and Michael Taylor, who had taken Holmes to buy
marijuana.  Holmes’s theory in defense
was mistaken identification based on descriptions of the assailants that did
not match Holmes’s characteristics, conflicting eyewitness testimony and the
absence of forensic evidence connecting him to the crimes. 

            The jury
found Holmes guilty on all three counts and found true the two
special circumstances, the firearm use enhancements under section
12022.53, subdivisions (b) and (c), and the gang allegation.  The jury found not true the firearm
use enhancement under section 12022.53, subdivision (d).  In a bifurcated proceeding, the trial
court found that Holmes had a prior serious felony conviction under section 246
that qualified him for sentencing under section 667, subdivision (a)(1), and the
Three Strikes law and had served four prior prison terms within the meaning of
section 667.5, subdivision (b). 
The court sentenced Holmes to state prison on counts 1 and 2 to
consecutive terms of life without the possibility of parole, plus on each count
20 years for the section 12022.53, subdivision (c), enhancement, and 10
years for the gang allegation.  The court
imposed an additional five years for the section 667, subdivision (a)(1),
enhancement and three years for the section 667.5, subdivision (b), prior
prison terms.  As to count 3,
the court imposed a sentence to run concurrently to that on count 1.  The court imposed 10 years for the
section 12022.53, subdivision (b), enhancement on counts 1 and 2 but
stayed execution of those terms pursuant to section 12022.53, subdivision
(f).  It also imposed and stayed
execution of a one-year term for the remaining section 667.5, subdivision (b),
prior prison term because that conviction had been used for the
section 667, subdivision (a)(1), enhancement.

            On appeal,
Holmes argues evidentiary errors, prosecutorial misconduct and ineffective
assistance of counsel, either each independently or some or all cumulatively,
require reversal of the judgment for a new trial.  He also argues sentencing error with respect
to the gang allegation.  We agree with
Holmes that evidentiary errors require reversal of the judgment.  We thus reverse the judgment and remand the
matter to the trial court.

DISCUSSION

1.         The
Failure to Redact References About Holmes in a Recorded Statement of           a Witness Interview Constituted Error

            a.         Proceedings
regarding witness recorded statements

            Theresa
Cherry, an affiliate of the Six Deuce Harvard Park Brims and Holmes’s friend,
was stopped by police two days after the shooting when she was riding in a car
as a passenger of Holmes’s wife.  The
police arrested Holmes that day in connection with the killing of Hemingway and
Taylor.

            The
following year, police detectives interviewed Cherry, who was in custody
on unrelated charges.  Cherry
reported that on the morning of the shooting she heard that two men had been
killed.  She learned this information
from “Baby G.S.” or Baby Gunsmoke, Holmes’s protégé in the gang.  Holmes was known as “Big G.S.” or Big
Gunsmoke.  Holmes told Cherry that he had
concluded that the two men who were killed were trying to set him up to “smoke
him.”  Cherry believed that Holmes had
shot the men because he thought that they were going to kill him.

            The next
month, a polygraph examiner interviewed Cherry. 
Although no polygraph examination was administered, Cherry gave a
statement to the examiner in which she said that Holmes had told her that “the
guys that he killed were trying to kill him. 
He said that they were trying to set him up some kind of way to have him
go to the . . . hood” of a rival gang.  According to Cherry, “I guess the two guys
were in the front and passenger seat, the driver and passenger seat, and I
guess [Holmes] was in the back.  You
know, he said he had them pull over . . . and he shot both of them in the back
of the head.  I don’t know how they died,
but this is what he said.  I don’t know
how those guys died, but the detectives said they were executed so maybe they
were shot in the back of the head or something. . . . Well, he said he shot
them both in the back of the head and his wife followed and he got out of that
car and got in the car with his wife and they drove off.  And the same car that they drove off in was
the car that they were in that Sunday when they came and got me and my friend.”


            Later that
day, police detectives interviewed Cherry again.  During that interview, Cherry said Holmes had
told her that he “smoked two dudes.” 
“Baby G.S.” was at the scene, and Holmes left the area with his
wife.  Cherry saw Holmes at his residence
the day after the shooting wiping off two firearms, a “revolver, a chrome one,”
“a .38 or .32 or something like that” with “a wooden handle” and a black one.

            At trial,
Cherry, who still was in custody on unrelated charges, admitted to testifying
at the preliminary hearing that Holmes had told her that he killed two people
who he believed were attempting to set him up. 
Cherry also admitted to testifying at the preliminary hearing that after
the shootings she saw Holmes wiping off two firearms.  Nevertheless, at trial, she testified that
Holmes had not told her that he killed anyone. 
She also testified that she had not seen Holmes wiping off firearms
after the shootings.  Cherry claimed that
she had lied in her interviews with police detectives and the polygraph
examiner and at the preliminary hearing. 
Cherry said that she feared for her safety as a witness in this case
because someone could try to kill her.

            Given the
inconsistencies between Cherry’s trial testimony and her earlier statements and
preliminary hearing testimony, the prosecutor sought to impeach Cherry by
playing for the jury recordings of the interviews she had given to the police
detectives and the polygraph examiner. 
Defense counsel objected, “It’s my understanding with this witness[,]
Ms. Cherry, that the People were going to attempt to play the entire taped
interviews of her interviews with officers. 
If that’s the case, I would be objecting to certain portions as there is
double hearsay throughout that. 
Statements that should not be allowed to come in.”  The trial court responded, “First of all, I
overruled the objection because [the statements were] offered for different
purposes [to go to Cherry’s state of mind as to why she feared testifying at
trial].  The redaction of such would be
at this time too complicated, as I take it just from listening to the witness,
she said different things at different times. 
I would be glad to give a limiting instruction, and if you want to
proffer one, I will consider it, or I can give my own.  But just that I can say relates to statements
of others, other than the defendant, are not to be received for their truth. .
. . And again, I’m basing it just on the testimony of the witness herself,
understanding that the request for a redaction will be too much.”  Defense counsel expressed concern that with
the statements played to the jury, and on the transcripts that the jury would
have with it during deliberations, he did not know that a limiting instruction
would “un-ring the bell.”

            Three
recordings were played to the jury, and the trial court instructed the jurors
with respect to each of the recordings that it could not consider statements by
third parties other than the defendant for their truth.  During one of her recorded interviews with
police detectives, Cherry stated regarding Holmes that “[h]e’s on parole.  I guess the guy has two strikes and he’s on
parole . . . .”  Later in the interview
Cherry reported that Holmes had “said that he went to jail for murder.  But see, before he told me that, I had
already heard that from other people anyway so I wasn’t tripping. . . . And I
heard that he was on probation for a gun . . . .” The detective asked,
“But he has talked . . . about his . . . rap? . . .  You know, he’s . . . originally, from, like,
the Blood Line.”  Cherry responded that
Holmes had said, “‘Yeah, I’ve been in jail for murder before, and you
know, I did eight years for that . . . .’” 
Cherry also said referring to Holmes that “he’s on parole, a strike . .
. .”  And the detective referred to
Holmes as “this [p]arolee, been . . . in the prison for killing
people, . . . he’s Blood Line. . . . You don’t just . . . walk up
into the Blood Line, like, ‘Hey, I’m here.  Let’s go.’ . . . There’s a . . . process to
get up to the Blood Line . . . [.]”  The
detective told Cherry that “you said yourself [Holmes’s] on parole for guns,
he’s . . . been [i]n prison for murder . . . from the Blood Lines, he’s got,
you know, . . . a good reputation. . . . He’s talking all this stuff.  He’s steady with a gun, correct?”

            After the
playing of this recording, defense counsel stated, “Notwithstanding court
admonition to the jury, I believe that those statements are so egregious as it
relates to this case involving my client who allegedly went to prison for
murders[,] which he did not, he was never convicted of murders . . . [.]  Again, bad acts, nothing to support it.  There is no reason for the
mischaracterization of my client, and I don’t believe that the jury can
separate all of that, especially when it’s coming from a police officer
claiming to have the authority of the courts and discussing this with the
jury.  I know what the court has said,
but I just don’t believe that they could possibly ignore what has been given to
them by the police.”  The trial court
responded, “Well, I’m somewhat disappointed in that [prosecutor] you should
have seen this coming and given me a warning, but you didn’t.  I don’t feel that this was as egregious
a matter that would call for a mistrial, if that’s what you’re moving for. . .
. I gave a complete and full admonition, and I got a verbal response from every
single one of the jurors they are going to follow that admonition.  Motion for a mistrial is denied.  [Prosecutor] don’t do this again.”  The prosecutor stated her belief that the
statements were relevant to Cherry’s state of mind to which the court replied,
“Well, I think that she mentioned it as to her state of mind that would be one
thing the fact that the officers stated to her. . . . But in any event, the
record is made.  The motion is denied.”

            b.         >Prejudicial error in admitting the unredacted
recorded statements

            Holmes
contends that playing the unredacted version of Cherry’s interview with police
detectives with the references to Holmes as someone who had been in prison for
murder, had two prior strike convictions, was on parole and was a member of the
Blood Lines constituted prejudicial error. 
The People, on the other hand, contend that the statements on the
recording were relevant to Cherry’s state of mind, helping to explain why her
trial testimony was different from the information she had given to the police
detectives, and that in any case they did not prejudice Holmes.  We agree with Holmes. 

            Even if, as
the People argue, the statements bore some relevancy to Cherry’s state of
mind, the trial court should have excluded them, pursuant to Evidence Code
section 352 (section 352), by redacting them from the recording.  Under section 352, “[t]he court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will . . . create substantial
danger of undue prejudice.”  “‘A
careful weighing of prejudice against probative value under . . . section 352
is essential to protect a defendant’s due process right to a fundamentally fair
trial.’  [Citation.]”  (People
v. Miramontes (2010) 189 Cal.App.4th 1085, 1097.)  The court did not undertake that careful
weighing.  Although defense counsel
objected to the playing of the recording on the ground that it contained
prejudicial hearsay statements, the court did not listen to the recording
before the prosecutor played it to the jury. 
It declined to excise any statements from the recording on the ground
that doing so would be “too complicated.” 
The jury thus heard the numerous statements on the recording referring
to Holmes as having a criminal past, including being in prison for murder, on
parole, a two-striker and a member of the Blood Lines gang—even though those
statements were not true.  Although the
court instructed the jury not to consider the statements for their truth, such
instruction did not cure the failure of the court to listen to the recording
and exercise its discretion under section 352 as to statements regarding Holmes
that admittedly were not true.  (>People v. Finch (1963) 216 Cal.App.2d
444, 453 [“There can be no doubt that before permitting recordings to be played
to the jury the court should satisfy itself that they are substantially
complete and substantially correct as to matters that are material and
important”].)href="#_ftn2" name="_ftnref2"
title="">[2]  Given the connection between the murder charges
against Holmes and the statements that he had been in prison for murder, was on
parole and had two prior strike convictions, the probative value of the
statements was substantially outweighed by the probability that they would
create substantial danger of undue prejudice. 
Admission of the statements thus constituted error.

            The error
was prejudicial, whether harmless error is judged under the state standard in >People v. Watson (1956) 46 Cal.2d 818,
836 or the federal constitutional standard in Chapman v. California (1967) 386 U.S. 18, 24).  Holmes defended the case on the theory of
mistaken identification.  Playing
statements to the jury that Holmes had been in prison for murder, was on parole
and had two prior strike convictions set the tone that Holmes was the type of
person to commit the charged crimes.  In
addition, one of the prosecution’s key witnesses on identification was
equivocal in his testimony and suffering from mental and physical problems.  Moreover, no forensic evidence tied Holmes to
the shootings.  And, as noted, the
subject of the statements was closely connected to the charges against
Holmes.  Under these circumstances,
reversal of the judgment is required.

2>.         The
Scope of the Gang Expert’s Testimony Contributed to the Erroneous and        Prejudicial Admission of Evidence

            Los Angeles
Police Department Officer Everardo Amaral testified as an expert on the Six
Deuce Harvard Park Brims, a Blood gang formed in the 1970s and claiming about
240 active members in 2006 at the time of the murders in this case.  According to Officer Amaral, the gang had a
hierarchy, “different levels.  You have
what you call your O.G. gangsters, which are your older members of the gang.  You have shot callers, . . . a shot caller is
a person within a gang who organizes crimes, plans out crimes and has the
younger or more active gang members commit those crimes.  And you have your wannabe[]s, or your
associates or [y]our affiliates.  An
affiliate is somebody [who] identifies or doesn’t claim or doesn’t have a
moniker, but still commits crime with the gang.”

            Officer
Amaral knew Holmes to be a member of the gang in 2006 with the moniker “Big
Gunsmoke, or Big G.S.”  Holmes’s role in
the gang was as an “older member, so he would be either O.G. or be a shot
caller.”  Holmes had several tattoos
representing the gang, including one that said “C.K. Finest,” which the officer
interpreted to mean that Holmes is a “member of a Blood gang” and “a Crip
killer.”  The term “C.K.” is short for
“‘Crip killer.’”  Officer Amaral
knew Abadji Franklin as a member of the gang in 2006 with “the moniker of Baby
G.S.[,] which is [short for] Baby Gunsmoke.” 
The officer had two contacts with Holmes, and both times Franklin was
with Holmes.  “Their relationship was
like a father and son relationship.  Mr.
Holmes was teaching the young member how to be, you know, a gang member.  He was teaching him everything he knows as he
can be as successful as a gang member.” 
According to the officer, “based on [his] experience from talking to
other gang members as how they bring up these younger gang members[,]” although
he did not know firsthand, Holmes “possibly had some influence on actually
motivating [Franklin] to go out and commit these crimes.”  Given a hypothetical question containing the
evidence presented to the jury, Officer Amaral opined that the crimes were
committed for the benefit of the Six Deuce Harvard Park Brims.

            Holmes
contends that the admission of Officer Amaral’s testimony that Holmes “is a
Crip killer” and his opinion that Holmes “possibly had some influence on
actually motivating [Franklin] to go out and commit these crimes” constituted
improper expert opinion.  We agree that
admission of these statements was error. 


            “‘California
law permits a person with “special knowledge, skill, experience, training, or
education” in a particular field to qualify as an expert witness [citation] and
to give testimony in the form of an opinion [citation].  Under Evidence Code section 801, expert
opinion testimony is admissible only if the subject matter of the testimony is
“sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.” 
[Citation.]  The subject matter of
the culture and habits of criminal street gangs . . . meets this
criterion.’  [Citation.]”  (People
v. Vang (2011) 52 Cal.4th 1038, 1044.) 
“‘Generally, an expert may render opinion testimony on the basis of
facts given “in a hypothetical question that asks the expert to assume their
truth.”  [Citation.]’  [Citation.]” 
(Id. at p. 1045.)  Nevertheless, “expert testimony regarding the
defendant’s guilt in general is improper. 
‘A witness may not express an opinion on a defendant’s guilt.  [Citations.] 
The reason for this rule is not because guilt is the ultimate issue of
fact for the jury, as opinion testimony often goes to the ultimate
issue.  [Citations.]  “Rather, opinions on guilt or innocence are
inadmissible because they are of no assistance to the trier of fact.  To put it another way, the trier of fact is
as competent as the witness to weigh the evidence and draw a conclusion on the
issue of guilt.”’  [Citations.]”  (Id. at p.
1048.)

            Officer
Amaral’s statements that Holmes “is a Crip killer” and that he “possibility had
some influence on actually motivating [Franklin] to go out and commit these
crimes” were not opinion testimony based on hypotheticals but rather
expressions of opinion on Holmes’s responsibility for the crimes.  Although an officer testifying as an expert
on a particular gang may give his opinion on the gang’s culture, including the
gang-related significance of a defendant’s tattoos (People v. Ochoa (2001) 26 Cal.4th 398, 438, abrogated on other
grounds as stated in People v. Prieto (2003)
30 Cal.4th 226, 263, fn. 14), Officer Amaral did more than state that
“C.K.” in Holmes’s tattoo stood for “Crip killer.”  The officer stated that the tattoo “C.K.
Finest” showed that Holmes “is a Crip killer.”  Such statement expressed the officer’s belief
that Holmes is a killer.  With respect to
the officer’s statement that Holmes “possibly had some influence on actually
motivating [Franklin] to go out and commit these crimes,” the testimony was
beyond the permissible scope of expert opinion because it expressed the
officer’s belief that Holmes was involved in the charged crimes.  The statements thus were not limited to
opinion based on hypothetical questions but rather improperly encompassed the
officer’s opinion that Holmes was responsible for the crimes at issue.

            Given the
prejudicial statements in Cherry’s interview with police detectives that Holmes
had been in prison for murder, had two prior strike convictions, was on parole
and was a member of the Blood Lines gang, the testimony from the gang expert
that Holmes “is a Crip killer” and possibility influenced his protégé in the
gang to commit the murders further prejudiced Holmes before the jury.  The gang expert’s testimony reinforced the
prejudicial statements in Cherry’s interview. 
The jury thus was impermissibly led to believe that Holmes had committed
previous crimes and those charged in this case.href="#_ftn3" name="_ftnref3" title="">>[3]

DISPOSITION

            The
judgment is reversed, and the matter is remanded for further proceedings not
inconsistent with this opinion.

            NOT TO
BE PUBLISHED.

 

 

 

                                                                                    ROTHSCHILD,
J.

We concur:

 

 

 

                        MALLANO,
P. J.

 

 

 

                        JOHNSON,
J.