P. v. Morris

Filed 10/27/06 P. v. Morris CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Andrew C. Kauffman, Judge. Affirmed.

________

Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

_________

A jury acquitted Mardellas Morris of attempted premeditated murder but convicted him of the lesser-included crime of attempted voluntary manslaughter during which the jury found he personally used a firearm. (Pen. Code, §§ 664, 187, subd. (a), 192, subd. (a), 12022.5, subd. (a).) In a bifurcated hearing after he waived jury trial, the court found that Morris previously was convicted of robbery, constituting a “serious” and “strike” prior felony. (Pen. Code, §§ 211; 667, subd. (a-(i); 1170.12.) After denying Morris’ motions for a new trial and to strike the “strike” finding, the court imposed an aggregate 15-year sentence, composed of an 11-year upper term for attempted voluntary manslaughter (a 5-year, 6-month upper term doubled as a second strike) plus a consecutive 4-year middle term for using the gun.^[1]

Morris appeals, contending that the trial court erred in (I) admitting evidence regarding “ghetto mentality syndrome“ and (II) imposing an upper-term sentence without a jury finding aggravating factors, in violation of Blakely v. Washington (2004) 542 U.S. 296. We reject the contentions and affirm the judgment.

FACTS

Martin M., a juvenile, had known Morris for over a year.^[2] On August 25, 2004, the two youths exchanged baseball caps, agreeing to return the caps later. Martin told the police that about 8:00 p.m. on August 27, he and Morris met outside Martin’s apartment. Martin returned Morris’ cap, but they began arguing about whether Morris could keep Martin’s hat a little longer. Morris is much larger than Martin. Both youths threw punches at each other, each connecting on one swing, with Morris striking Martin in the chest. Martin, who felt “overpowered[,]” picked up a “little wood stick” and hit Morris in the head with it. Morris, who was not bleeding, left after telling Martin, “‘I’ll be back. I’m going to get my gun. I’m gonna cap your ass[.]’” Later that evening, Martin, who was sitting outside with some friends, heard one or two gunshots fired in a nearby alley. When Martin looked in the direction of the shots he saw Morris pointing a gun at him and ran away.

Two other men who knew Morris saw the shooting. Geoff Pasek, who lived in a nearby apartment, told the police that he was on his balcony when he saw Morris and Martin arguing. Morris punched Martin, who picked up a stick and hit Morris in the head. Later that evening, Pasek saw Morris return, point a gun at Martin, fire a few shots, and run away. Pasek called the police but did not identify himself. The police responded but found no victim or evidence of a shooting and did not talk to anyone. The neighborhood is a high crime area occupied by the Shotgun Crips street gang with frequent shootings, many of which produce no witnesses.^[3]

The next morning, Terrence Birden, Martin’s older brother, telephoned the police when he saw Morris walking nearby and pulling the slide of a handgun. Birden told the responding officer that the night before, Martin and Morris got into a fight. Shortly thereafter, Morris returned with a gun, said, “‘I’ll teach you to f---k with me[,]’” and fired 2 or 3 shots at Martin. Police arrested Morris that morning and found blood drops trailing to the apartment where he lived but did not find a gun. Pasek and Birden identified him as the shooter. After his arrest, Morris received treatment for a head wound.

At trial, however, Martin, Pasek, and Birden recanted significant parts of their statements to the police. Martin testified that he did not see who fired the shots and did not see Morris during the shooting. Pasek testified that he did not see Morris punch Martin during the preshooting fight or who fired the shots, only saw Morris running away thereafter, and could not tell if Morris had a gun. Birden testified he didn’t see the preshooting fight between Martin and Morris, the shooting, or Morris with a gun the next morning, and called the police only at Pasek’s request. Birden even denied ever seeing Morris before. All three men denied making contrary statements to the police and admitted that they did not want to testify and did so only because they were subpoenaed. Martin denied being afraid and offered no explanation for recanting his statements to the police or reluctance to testify. On the other hand, Pasek testified that he “fear[ed] . . . retaliation” because he was “testifying in an attempted murder trial with somebody who uses guns and shoots towards little kids. So what is to say that somebody wouldn’t shoot towards me or my daughter? Makes sense.” Birden explained that although he was not afraid of Morris, his family, or anyone, he was “fully aware” “that in certain communities there is retaliation for people who testify in a criminal case[.]”

The prosecution asked to call a police gang expert to testify that gang presence in a neighborhood causes witnesses to be unwilling to cooperate with law enforcement and testify at trial. At a hearing outside the presence of the jury (Evid. Code, § 402), Officer Erick Lee, a gang expert familiar with the area where the shooting occurred and its gangs, testified that in areas like those in which the shooting occurred which are dominated by gangs and have high crime rates, retaliation against witnesses who report crimes to the police and testify in court is common, whether or not the particular crime is gang related. Moreover, in such neighborhoods, gang culture influences most youths, whether or not they are gang members, to seek to appear tough and able to defend themselves, rather than need help to do so. Thus, both to avoid reprisals for cooperating with law enforcement and to enhance or maintain their status, youths who are crime victims likely would not report crimes to the police; instead, they either would do nothing or would retaliate against the perpetrator themselves. If witnesses do report crimes to the police, they often recant their reports at trial to avoid assisting in the suspect’s conviction. When such a witness recants an earlier report, he likely will avoid retribution or more than minimal loss of esteem. Adults in such neighborhoods generally do not accept this gang culture, but likewise are reluctant to testify because of the likelihood of retaliation. Lee testified that he did not know Morris or any of the non-police witnesses in this case, and had no information suggesting that any of them were gang members.

Morris objected to admission of Lee’s testimony, arguing that it was cumulative, prejudicial, and not properly the subject of expert testimony. The court granted the motion in part and denied it in part, ruling: “The court is not going to permit Officer Lee to render any opinion as to the nature and character of the conduct of the defendant in this case. However, the court is prepared to permit Officer Lee to testify in a very limited way. To the environment created in the community by gang activity, so called street credibility, as Officer Lee has characterized it, to that extent only.”

Officer Lee testified at trial consistent with his hearing testimony. In response to the court’s question regarding street culture in the area of the shooting, the officer stated: “It’s often referred to as a ghetto mentality. If you’re seen cooperating with the police, you’re going to . . . be labeled a snitch. You possibly will be retaliated against. And they don’t want anybody to cooperate with the police. . . . That mentality also lends itself to taking care of business on your own. . . . [I]f a crime occurs, they won’t call the police, but they’ll oftentimes retaliate against that person because they’ll take care of it themselves.” Morris’ counsel did not object to this testimony or move to strike it. Later, also without objection, Lee elaborated on the potential consequences of a witness’s identifying a non-gang member criminal suspect in court: “. . . [Y]ou can be retaliated against by neighbors or family members of the suspect. You’ll also be seen as a social pariah amongst your neighborhood. You won’t have that street credibility. So when you walk down the street, people will call you a punk. People won’t be your friends, and you’re going to be seen as a punk. And so it means a lot to these youths to maintain that street credibility, that tough-guy mentality; that if someone messes with me, I’m going to mess back with them.” Lee was not asked any hypothetical questions and offered no opinion regarding Morris’ or any witness’s conduct or motives. The court later instructed the jury regarding Officer’s Lee testimony pursuant to CALJIC No. 2.80 (Apr. 2006 ed.).^[4]

In defense, Morris testified that as he and Martin were arguing about the caps, he advanced toward Martin “like [he was] going to hit” Martin when Martin hit him in the head with a pipe. Morris, bleeding and dazed, went home, where he lived with his grandmother and uncle. He persuaded his grandmother not to call the paramedics because he did not want Martin arrested. He stayed home the rest of the evening while his grandmother treated his wounds. He was arrested the next morning. Morris’ grandmother testified consistently with Morris, and his uncle testified he heard gunshots that night.

During his opening argument to the jury, while discussing his theory that Morris committed attempted premeditated murder after losing the preshooting fight, the prosecutor stated without objection: “The argument was [Morris] wanted the hat. And he wanted to get it back, and he didn’t want to turn the other one over. And he was the bigger guy, and he was going to get his way. And when he got smacked over the head, he didn’t appreciate that. And instead of calling 911, he goes to get a gun to take care of business himself. [] Because even though [Morris] testified to you that he was a victim, not scared, he didn’t call 911. Why not? . . . For other reasons. Well, other reasons are you don’t call 911, as Officer Lee told you. People know, you don’t call 911. You either take care of it on your own, or you don’t do anything about it. Otherwise, you’re a punk, and that’s the way it is.” (Italics added.) The prosecutor further argued that the other witnesses recanted their statements to the police at trial because they reasonably feared retaliation.

The jury deliberated for approximately 4 hours and 45 minutes over 2 days before acquitting Morris of attempted murder but convicting him of attempted voluntary manslaughter with personal firearm use. Before sentencing, the court denied Morris’ new trial motion which argued, among other things, that the court erred in admitting Officer Lee’s testimony. The court then imposed an 11-year upper term for attempted voluntary manslaughter.

DISCUSSION

I. The Court Properly Exercised its Discretion in Admitting Expert Testimony Regarding the Effect of Gang and Other Violence on Witnesses Recanting Reports to Police.

Morris contends that the court abused its discretion in admitting Officer Lee’s testimony regarding “ghetto mentality syndrome” because it was cumulative, not properly the subject of expert testimony, and prejudicial. Morris also argues that even if the court’s ruling was proper, that portion of Lee’s testimony asserting that youths would retaliate themselves rather than calling the police violated the court’s ruling prohibiting testimony regarding Morris’ conduct. In a related claim, Morris argues the prosecutor’s argument quoted above likewise was improper, and his attorney was ineffective for not objecting. In addition to disputing Morris’ arguments, the Attorney General contends that Morris waived his latter two arguments by failing to object to that portion of Lee’s testimony or the prosecutor’s argument. Morris’ contentions lack merit.

Courts generally have discretion to control the admission of evidence. (People v. Hall (1986) 41 Cal.3d 826, 834.) All relevant evidence is admissible subject to statutory exceptions including if its probative value is outweighed by its substantial prejudicial effect. (Evid. Code, § 352.) We review the trial court’s Evidence Code section 352 rulings for abuse of discretion. (People v. DeSantis (l992) 2 Cal.4th 1198, 1226.) Regarding gang evidence, we will not find the trial court abused its discretion in admitting evidence if substantial evidence supports the trial court’s decision. (People v. Champion (1995) 9 Cal.4th 879, 921-925, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860 [upholding admission of gang evidence].)

Regarding expert testimony, an expert may give an opinion if it is “[r]elated to a subject . . . sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); People v. Gardeley (1996) 14 Cal.4th 605, 617.) The admissibility of expert opinion is a question of degree. When “‘the jury has some knowledge of the matter, expert opinion may be admitted [if] it would “assist” the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.”’ [Citation.]” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.)

The decision whether to admit expert opinion is confided to the trial court’s sound discretion. (People v. McAlpin, supra, 53 Cal.3d at p. 1299.) Opinions are not inadmissible simply because they “embrace[] the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805; People v. Doss (1992) 4 Cal.App.4th 1585, 1596.) The “culture and habits of criminal street gangs” is a proper subject of expert opinion. (People v. Gardeley, supra, 14 Cal.4th at p. 617.)

Applying these principles to our case, we conclude the trial court properly exercised its discretion in admitting Officer Lee’s testimony. It was relevant to an issue in controversy: whether the prosecution witnesses were telling the truth when they recanted their earlier statements that Morris had fired shots at the victim. Those recantations were the crucial contested issue in the case, with Morris arguing that their trial testimony was true and their statements to the police were fabricated.

Lee’s testimony also was a proper subject of expert opinion. He testified that retaliation was likely in such neighborhoods whether or not the crime was gang-related, and that the “ghetto youth culture” provided an additional motivation beyond avoiding retaliation to not involve the police. This relevant testimony would assist the jury in deciding whether the trial testimony or the earlier statements to the police should be believed.

Contrary to defendant’s contention, Lee’s testimony was not cumulative. Of the three recanting witnesses, only Pasek testified he feared retaliation. Martin said he was not afraid and offered no explanation for recanting, while Birden, although acknowledging that retaliation was possible, denied being afraid. Thus, at least as to Martin and Birden, Lee’s testimony was not cumulative. Moreover, even as to Pasek, Lee’s testimony provided independent and broader evidence regarding retaliation, thus showing that Pasek’s subjective fear was objectively reasonable and strengthening the conclusion that his recantation was untrue. In addition, no other witness described the “ghetto youth culture” explanation for recanting (to maintain or enhance status among peers) which, while related, was different from recanting out of fear of retaliation. Lee’s testimony was the only evidence on that topic.

With regard to prejudice, that the victim and defendant lived in a gang area could not cause defendant any prejudice. Lee’s testimony was not the kind of “gang evidence” which, by linking the defendant or defense witnesses to uncharged crimes committed by criminal street gangs to explain their conduct, is likely to be highly prejudicial even if probative. Thus, Officer Lee testified that Morris was not a gang member. Indeed, Morris, not the prosecution, initially elicited evidence that the area was gang infested and controlled by the Shotgun Crips gang to buttress his theory that he was not the shooter and someone else, likely a gang member, was.^[5] Finally, the evidence was not substantially more prejudicial than probative under Evidence Code section 352. As discussed, it was highly probative to explain why the prosecution witnesses’ initial reports of the crime should be believed and no more prejudicial than the evidence Morris already had elicited that the area was a high crime area controlled by a specific gang.

We also reject Morris’ arguments that Lee’s testimony that youthful victims would do nothing at all in response to crime or retaliate themselves rather than involve law enforcement (“ghetto mentality syndrome”) and the prosecutor’s related arguments, violated the court’s ruling or otherwise were improper. Lee’s testimony did not violate the court’s ruling because Lee did not testify that the “ghetto mentality syndrome” supported an inference that Morris committed the charged crimes. And the testimony applied equally to Martin, to explain why he would recant his statements to the police. Nor did Lee’s testimony or the prosecutor’s arguments use “ghetto mentality syndrome” as prohibited profile testimony. Because the evidence did not link Morris to other uncharged crimes, and was not introduced to prove his identity as the perpetrator of the charged crimes, it was not “profile” or “propensity evidence. (Cf. People v. Castaneda (1997) 55 Cal.App.4th 1067, 1071-1072; People v. Hernandez (1997) 55 Cal.App.4th 225, 242-244; People v. Martinez (1992) 10 Cal.App.4th 1001.)^[6]

II. The Court Properly Imposed an Upper Term Without a Jury Finding Aggravated Sentencing Factors.

Morris contends the court erred in imposing an upper term without a jury finding aggravated sentencing factors in violation of Blakely v. Washington, supra, 542 U.S. 296. He concedes correctly that we must reject this claim under People v. Black (2005) 35 Cal.4th 1238 (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but raises it to preserve the issue for federal review.^[7]

We reject the Attorney General’s argument that Morris waived this issue by not raising it in the trial court. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103 (upon which the Attorney General relies), who waived a Blakely challenge by failing to raise it at his sentencing which occurred after Blakely but before Black, Morris was sentenced after Black, at which point a Blakely objection would have been futile under controlling law that the court was compelled to follow. Under these circumstances, Morris did not waive the issue. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P.J.

JACKSON, J.^*

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^[1] The prosecution did not request, and the court did not impose, an additional 5-year term for the “serious” prior felony allegation.

^[2] Morris also was a juvenile but was tried as an adult.

^[3] Although Martin and a police officer testified about frequent unwitnessed shootings in the neighborhood, Morris’ counsel elicited the information about gangs while cross-examining Martin: “Q[.] So basically a gang area? A[.] Yes. Q[.] Shotgun Crips or something; correct? A[.] Yes.”

^[4] The court instructed the jury: “A witness who has special knowledge, skill, experience, training, or education in a particular subject has testified to certain opinions. This type of witness is referred to as an expert witness. In determining what weight to give any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. An opinion is only as good as the facts and reasons on which it is based. If you find that any fact . . . has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable.”

^[5] We reject Morris’ reliance on cases holding that admitting gang evidence was prejudicial, including People v. Cardenas (1982) 31 Cal.3d 897, 904-906, and People v. Maestas (1993) 20 Cal.App.4th 1482, 1494-1501. Lee testified that Morris was not in a gang, and Morris, not the prosecution, introduced the gang evidence. Thus, those cases are inapplicable. Moreover, Cardenas, a plurality opinion of three justices, is not binding authority. (People v. Harris (1985) 175 Cal.App.3d 944, 957.)

^[6] We reject the Attorney General’s waiver argument. Morris did not waive his objection to that portion of Lee’s testimony that youths in the area would retaliate themselves rather than involve the police. Morris strenuously objected to all of Lee’s proffered testimony on the multiple grounds discussed above, and did not waive this particular point by failing to interpose a specific objection to that portion of Lee’s testimony.

^[7] The United States Supreme Court has granted certiorari in a case presenting this issue. (Cunningham v. California (cert. granted Feb. 21, 2006) No. 05-6551 [126 S.Ct. 1329].)

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)