Filed 11/4/13 P. v. Nase CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD
APPELLATE DISTRICT
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
DONYAE
NASE et al.,
Defendants and
Appellants.
C067313
(Super. Ct. No. 09F06019)
Defendants Donyae Nase, Andre Love, and William England were
driving through a residential neighborhood in the Meadowview area of
when they came upon two cars stopped in the middle of the street. Unable to pass, they pulled over, got out of
their car, and exchanged words with several people from the neighborhood. Defendants identified themselves as members
of a gang called the Meadowview Bloods (MVB) and a confrontation ensued, during
which one of the victims was punched in the head, another was choked until he
passed out, and others were threatened at gunpoint as one of the defendants
tried to force his way into a victim’s home.
The incident ended after several witnesses saw Love fire several
shots. Defendants fled, eventually dropping
Love off near an emergency room with a gunshot wound to his leg.
Defendants were tried jointly and convicted by a jury of various
charges. Among other things, Nase and England
were convicted of active participation in a
(Pen. Code, § 186.22, subd. (a) (hereafter
§ 186.22(a)); further unspecified section references are to the Penal Code), also
known as “street terrorism.†(E.g.,
v. Williams (2009) 170 Cal.App.4th 587, 625-626 (Williams).)
Defendants
appeal. Nase contends: (1) the trial court prejudicially erred in instructing
the jury that his own felonious conduct would satisfy the element of “willfully
assist[ing], further[ing], or promot[ing] felonious
by members of the gang†for purposes of proving the charge of street terrorism;
(2) the evidence was insufficient to support the street terrorism conviction;
(3) section 654 bars the sentence imposed for
the street terrorism conviction; and (4) trial counsel was prejudicially
incompetent in failing to object to evidence of uncharged acts and other
gang-related activity admitted by the prosecution’s gang expert.
Love
contends: (1) the trial court
prejudicially erred in denying his request to impeach victim/witness Damon H.
with a prior misdemeanor conviction; and (2) he is owed additional presentence custody
credit.
England
contends: (1) the evidence was
insufficient to support the street terrorism conviction; and (2) the victim
restitution fine was unauthorized, improper, and unconstitutional.
Each defendant joins in the claims of his co-defendants. (Cal.
Rules of Court, rule 8.200(a)(5).)
We direct the trial court to amend the abstract of judgment
as to Nase to stay his concurrent three-year sentence for the street terrorism
conviction pursuant to section 654. We further direct the trial court to amend
the abstract of judgment as to Love to reflect additional presentence custody
credit. We affirm the judgments in all
other respects.
Facts and Proceedings
Numerous witnesses testified at trial in this
matter. While the record contains a fair
number of inconsistencies, we recount the facts in the light most favorable to
the verdicts. (See P
In August 2009, Damon H. and his family, including his
brother Jermaine H., his father Lawrence H., and his stepmother, D.W., lived in
the Meadowview area of Sacramento. Damon’s uncle, John M., lived next door. Damon’s neighbor to the other side was D.H. Christina P. lived across the street.
On
the evening of August
9, 2009, Damon was outside his home,
along with Jermaine and John M. John M.’s
friend, Mally, drove up in front of John M.’s house in a Buick and stopped in
the middle of the street, where he chatted with John M. A Lexus came from the opposite direction,
pulled up alongside Mally’s car, and idled while the driver talked with
Mally.
Sometime later, Love drove up in a Dodge Magnum. Unable to pass due to the position of the
Lexus and the Buick, Love stopped the car and got out, followed by passengers Nase
and England. Love, who was wearing a red shirt and a
necklace with a gold AK47 medallion on it, walked over to Mally and said
something to the effect of, “This is my neighborhood.†“[W]hy are you in the middle of our street?†Mally told John M. to go inside, which he
did, and Mally drove away.
Defendants
asked Damon and Jermaine where they were from, meaning what neighborhood or
gang. Damon responded, “Nowhere, not
from here.†One or more of the
defendants said, “Meadowview Bloods,†and “This is Meadowview.â€
Lawrence,
who was wearing blue house shoes, walked out to talk with the occupants of the
Lexus. Nase yelled at him, telling him to
take off his “blue rag shoes†or go back inside. Lawrence
ignored him and headed back towards the house.
Nase walked toward Lawrence
and said, “I’ll take your phone.†Lawrence
continued to ignore him and kept walking towards the house. All three defendants followed behind Lawrence
as he walked, forming something of a half-circle around him. Nase punched Lawrence in the eye, drawing
blood and causing Lawrence to stumble.
Damon
saw Love leaning towards Lawrence. Fearing
for his father’s safety, Damon punched Love.
As England stood by and watched, Damon and Love began to fight, each taking
swings at the other. Love grabbed Damon
and placed him in a headlock, choking him until he lost consciousness. Jermaine kicked Love in the groin, causing
him to release his hold on Damon.
When
Damon came to, Jermaine helped him up and walked him partway towards the
house. At the same time, Love went back
to the Dodge and retrieved a gun from inside the car. As Love started towards the H. house with gun
in hand, D.W. yelled at him to leave.
headed into her garage with Love following behind her. D.W. testified at trial that it was at this
point that Love first fired the gun several times towards her house.
Damon
testified that, as he made his way to the garage, someone yelled, “He gots a
gun.†Damon turned and saw Love pointing
a handgun at him and Lawrence, who was also making his way toward the
garage. Damon quickly pushed his father
through the garage and into the house and followed him inside.
D.W.
stood at the top of the steps leading from the garage into her house. Love stood on the bottom step, pointing the
gun at her chest
as he argued with her and tried to force his way inside. D.W. told him, “[Y]ou are not coming into my
house.†Love said, “Where is them
niggers at? Where did they go?†and demanded,
“Let me in because I know these niggers are in here.†He tried to push his way into the house, but D.W.
stood in the doorway preventing him from entering. Love tried several times to push the door
open, but D.W. told him, “No, I got my kids in here.â€
Love
left, but quickly returned with England and tried to kick in the door. England stood behind Love and told D.W. he
wanted to come in. After about a minute,
Love and England left the garage. Love
stood in the driveway and fired “a couple of shots.†D.W. testified that Love fired in the
direction of Drew’s house next door. Neighbor
Christina P. testified she saw the shooter fire the first of two shots while
pointing the gun in her direction (i.e., across the street, away from the H.
house), but she did not see which direction the second shot was fired because
she had by that time ducked down to protect herself. Defendants could be heard yelling “motherfuckerâ€
and other obscenities towards the H. house.
All
three defendants left together in the Dodge Magnum. At some point, Nase and England dropped Love
off near Kaiser Hospital’s emergency room and continued on without him. They were eventually stopped by police. A search of the car revealed five live rounds
of ammunition, two of which were underneath the driver’s seat.
In
the meantime, hospital staff found Love wandering around in the alley outside
the hospital, agitated and bleeding from a wound to his leg. He yelled at staff and refused help, but
eventually relented and allowed emergency room doctors to examine him. When asked how he received the gunshot wound,
Love said he “didn’t know what happened.â€
Damon
and D.W. identified each of the defendants in field show-ups. Damon noted that England had changed his
shirt.
At
different times throughout the ordeal, D.W., John M., Christina P., and
Jermaine each separately called 911. In the
recording of Jermaine’s 911 call which was played for the jury, voices could be
heard in the background saying, “Is it loaded?
Are you ready to go? All I got to
do is cock it.†At trial, Damon could
not determine whether the voice in the background was that of his father. Voices could also be heard to say, “I just
told you they got to give it to me, Drew,†and, “[L]ight them niggas up, Dad.â€
England
testified in his own defense. He claimed
the incident started when Lawrence and Love got into a fight after Lawrence
grabbed the chain off of Love’s neck. The
fight then escalated when Damon and Nase interjected themselves. England testified that Lawrence had a gun and
fired three shots, hitting Love. He denied
that he or his co-defendants had a gun or went into the H.’s garage.
Nase,
Love, and England were charged by information with aggravated battery (§
of force likely to cause great bodily injury (§
245, subd. (a)(1)--count two); assault with a firearm (§
degree burglary (§ 459--count four);
active participation in a street gang (§ 186.22(a)--count
five); possession of a firearm by a felon (former §
possession of ammunition by a felon (former §
12316, subd. (b)(1)--count seven).
The
information also alleged as follows: Nase,
Love, and England committed the acts charged in counts one, two, three, four,
six, and seven for the benefit of a criminal street gang (§
Nase, Love, and England personally inflicted serious bodily injury (§
Love personally used a firearm (former §
12022.5, subds. (a) & (d), § 1192.7, subd. (c)(8)); as to counts four and
five, Love personally used a firearm (§
1203.06, subd. (a)(1), former § 12022.5, subd. (a)) and was an armed principal
(former § 12022, subd. (a)(1)); as to
count seven, Love committed the offense while released on bail (former §
It was further alleged that Nase served three prior prison terms (§
had a prior serious felony conviction (§§
667, subds. (b)-(i), 1170.12) and served a prior prison term (§
The
trial court granted defendants’ request to bifurcate the prior prison term and
prior serious felony allegations. The
matter was tried to a jury.
Nase
was convicted of aggravated battery (count one) and active participation in a
criminal street gang (count five). The
jury found he personally inflicted great bodily injury. In bifurcated proceedings, the court found
true the three prior prison term allegations.
Love
was convicted of assault by means of force likely to cause great bodily injury
(count two), first degree residential burglary (count four), felon in
possession of a firearm (count six), and felon in possession of ammunition
(count seven). The jury found he used a
firearm during the assault. Love
stipulated to the on-bail enhancement.
In bifurcated proceedings, the court found true the two prior conviction
allegations.
England
was convicted of active participation in a criminal street gang (count five). In bifurcated proceedings, the court found
true the two prior conviction allegations.
The
trial court sentenced Nase to an aggregate term of seven years in state prison,
Love to an aggregate term of 22 years, eight months, and England to an
aggregate term of 10 years. As to each
defendant, the trial court imposed various fees and fines and awarded
presentence custody credit.
Discussion
I
Nase
contends the trial court incorrectly instructed the jury on active participation
in a criminal street gang. Specifically,
he argues the jury was instructed, contrary to the clear language of section
186.22(a), that his own commission of a felony offense was sufficient to
satisfy the element requiring proof that he willfully assisted, furthered or
promoted felonious criminal conduct by other members of the gang.
The
People argue the claim is forfeited for failure to object at trial and, in any
event, there was no instructional error.
A
claim that the trial court’s instructional error deprived defendants of their substantial
rights is not forfeited for lack of objection below. (§ 1259;
People v. Cabral (2004) 121
Cal.App.4th 748, 750.) The question is
whether the error, if any, resulted in a miscarriage of justice under P
818. (People v. Anderson (2007)
152 Cal.App.4th 919, 927.) We find no
error, and thus no miscarriage of justice.
Without
objection, the trial court instructed the jury with C
participating in a criminal street gang in violation of [section] 186.22(a). [¶] To
prove the defendant guilty of this crime, People must prove, one, the defendant
actively participated in a criminal street gang at the time of the offense,
two, when the defendant participated in the gang he knew that members of the
gang engaged in or have engaged in a pattern of criminal gang activity, and,
three, defendant willfully assisted, further[ed] or promoted felonious criminal
conduct by members of the gang either by:
[¶] A, directly and actively
committing a felony offense; [¶] Or B, aiding and abetting a felony offense.â€
Section
186.22(a) defines the crime of active participation in a criminal street gang
as “[a]ny person who actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal
gang activity, and who willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang.â€
We
are here concerned with the third element of section 186.22(a), otherwise
referred to as the promote/further/assist element.
Nase
was convicted of battery with serious bodily injury (count one) based on the
attack on Lawrence H.. He was also
convicted of active gang participation (count five) for willfully promoting,
furthering, and assisting the felonious criminal acts of his co-defendants, at
least one of whom represented himself as a member of the MVB, by directly and
actively committing the felony battery on Lawrence.
Nase
claims the promote/further/assist element of section 186.22(a) limits liability
to those who aid and abet a specific
felony committed by gang members, arguing support for his position can be found
in People
v. Castenada (2000) 23 Cal.4th 743 (Castenada).
In
Castenada,
the defendant pointed a gun at the victim and demanded money while one of the defendant’s
two companions did the same to a second victim.
(Castenada,
supra, 23 Cal.4th at p. 745.) The
defendant took the victim’s watch and attempted to snatch a gold chain from his
neck. When the victim broke free and
yelled for help, the defendant fled with his companions. (I
The defendant was convicted of robbery, attempted robbery, and active participation
in a criminal street gang pursuant to section 186.22(a). (Castenada,
at p. 746.) The section 186.22(a)
conviction was upheld by the court of appeal.
(Ibid.)
Our
state’s highest court affirmed the decision of the appellate court. (C
746.) In considering the meaning of the
phrase “actively participates,†another element of section 186.22(a), the court
referred in dictum to the promote/further/assist element, saying: “Section 186.22(a) limits liability to those
who promote, further, or assist a specific felony committed by gang members and
who know of the gang’s pattern of criminal gang activity. Thus, a person who violates s
abetted a separate felony offense committed by gang members . . . . [Citations.]â€
(Id. at p. 749, italics
added.)
Nase
concedes that several courts have examined the promote/further/assist element
of section 186.22(a) and concluded a defendant not acting alone is as liable
for crimes personally committed as for crimes aided and abetted. (P
[affirming conviction under section 186.22(a) for defendant who directly
perpetrated underlying felony rather than aiding or abetting another in the
commission of those felonies]; P
356 (Salcido) [accord], overruled on
another point as stated in P
1125, 1137, fn. 8 (Rodriguez);
v. Sanchez (2009) 179 Cal.App.4th 1297, 1306-1308 (Sanchez) [accord], overruled on another point as stated in
at p. 1137, fn. 8.) He contends those
cases were wrongly decided, arguing C
the plain statutory language†of section 186.22(a) and thus supports his claim
of instructional error.
The
language in C
in context. The court, rejecting Castenada’s
assertion that a defendant must hold a leadership position in the gang in order
to have “actively participate[d]†for purposes of section 186.22(a), relied instead
on the promote/further/assist language to require something “more than nominal
or passive†participation. (
supra, 23 Cal.4th at p. 752; see also id.
at pp. 747-752.) In that context, the
court described a
found to have “actively participate[d]†under the statute--by aiding and
abetting another--not the sole
Similarly,
Nase’s reliance on P
misplaced, as the issue there was whether the phrase “any felonious criminal
conduct†includes an unwritten requirement that the “ ‘felonious criminal
conduct’ . . . be gang related.†(I
we make no determination in that regard.
Since
briefing was completed in this case, our state’s highest court issued
supra, 55 Cal.4th 1125. While the
issue under consideration there was “whether the third element [of section
186.22(a)] is satisfied when a gang member commits a felony while acting aloneâ€
(id.
at p. 1131), it is worth noting the high court’s comment that, “[n]othing in
the language of section 186.22(a) would
suggest that one may not promote, further, or assist ‘in any felonious criminal
conduct by members of that gang’ by either aiding and abetting other gang
members in committing a felony or by
directly committing a felony with other gang members.†(I
In
short, there is no authority of which we are aware that limits the promote/further/assist
element of section 186.22(a) to those who aid and abet a felony committed by
gang members. Thus, there was no
instructional error.
II
Sufficiency
of Evidence to Support Section 186.22(a) Conviction
“The
proper test for determining a claim of insufficiency of evidence in a criminal
case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.
[Citations.] On appeal, we must
view the evidence in the light most favorable to the People and must presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.
[Citation.] [¶] Although we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the exclusive province
of the trial judge or jury to determine the credibility of a witness and the
truth or falsity of the facts on which that determination depends. [Citation.]
Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder.†(People
v. Jones (1990) 51 Cal.3d 294, 314.)
A. Defendant Nase
As
an alternative to his claim of instructional error, Nase contends there was
insufficient evidence to support his conviction for street terrorism given that
his own direct commission of a felony cannot establish the promote/further/assist
element of section 186.22(a), and the jury acquitted him of all aiding and
abetting charges and enhancements.
Having
already concluded in part I of this
opinion that the promote/further/assist element of section 186.22(a) may indeed
be satisfied by a defendant’s own direct commission of a felony offense, we
reject Nase’s claim.
B. Defendant England
England
claims the evidence was insufficient to support his section 186.22(a)
conviction because he was acquitted of all other charges and there was no
evidence he aided or abetted any felonious criminal conduct by his co-defendants.
The
People argue that inconsistent verdicts are permissible where, as here, there
is substantial evidence to support the section 186.22(a) conviction. We agree.
“It
is well settled that, as a general rule, inherently inconsistent verdicts are
allowed to stand. [Citations.] The United States Supreme Court has
explained: ‘[A] criminal defendant . . .
is afforded protection against jury irrationality or error by the independent
review of the sufficiency of the evidence undertaken by the trial and appellate
courts. This review should not be
confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves
assessment by the courts of whether the evidence adduced at trial could support
any rational determination of guilty beyond a reasonable doubt. [Citations.]
This review should be independent of the jury’s determination that
evidence on another count was insufficient.’
[Citation.]â€
(P
57, 67 [83 L.Ed.2d 461].)
“[T]he
fact that a guilty verdict on one count is inconsistent with an acquittal
verdict on another no longer compels reversal if there is substantial evidence
to support the conviction. [Citation.]†(P
1657.)
As
CALCRIM No. 1400 instructed the jury here,
active gang participation requires proof defendant (1) actively participated in
a criminal street gang at the time of the offense, (2) knowing that members of
the gang engage in or have engaged in a pattern of criminal gang activity, and
(3) willfully assisted, furthered, or promoted felonious criminal conduct by
members of the gang either by (a) directly and actively committing a felony
offense, or (b) aiding and abetting a felony offense.
The
instruction explained that, “[t]o prove that the defendant aided and abetted
felonious criminal conduct by a member of the gang, the People must prove
that: [¶] 1. A member of the gang
committed the crime; [¶] 2. The defendant knew that the gang member intended to
commit the crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the gang member in committing the crime; [¶]
AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the
commission of the crime.â€
The
instruction further explained that “[s]omeone aids and abets a crime if he knows of the perpetrator’s unlawful
purpose, and he specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of that crime.â€
“[T]he
weight of authority and sound law require proof that an aider and abettor act
with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense.†(P
560.)
Our
independent review of the record reveals the evidence is sufficient to support
England’s section 186.22(a) conviction. The
incident started when Love confronted Mally by saying, “This is my
neighborhood.†“[W]hy are you in the
middle of our street?†All three
defendants confronted Damon and Jermaine, asking where they were from (i.e.,
which neighborhood or gang). At least
one of the defendants indicated he was a member of the MVB. When Nase yelled at Lawrence to take off his
blue shoes, and followed Lawrence as he walked back towards the house, England signaled
his complicity in Nase’s attack on Lawrence by following behind and helping to surround
Lawrence. When Nase and Love fought with
Damon, England stood nearby watching. As
Love attempted to force his way into the H. house, England followed immediately
behind, telling D.W. he “wanted to come in.â€
After Love fired his gun, England, Love, and Nase left the scene together. Nase and England dropped Love off near the
hospital and continued on together in the same car until they were stopped by
police, but not before England took the time to change his shirt.
Detective
Justin Saario, the prosecution’s gang expert, testified regarding the MVB gang,
its history, its habits, its activities, and the manner in which its members
associate. Saario also testified that,
in his opinion, England and his co-defendants were active MVB gang members at
the time of the incident. Saario based
his opinion on a number of things, including police validations and defendants’
prior associations with other gang members, their prior police contacts, their
activities, their monikers, their attire, their tattoos, and their own
admissions regarding gang affiliation. Saario
testified in particular about England’s admitted long-standing membership in
the MVB, as well as his criminal history in that regard, establishing directly
and by reasonable inference that England actively participated in the gang with
knowledge that its members engage in or have engaged in a pattern of criminal
gang activity.
England
argues that, if we were to give the proper effect to the jury’s acquittals, we
would conclude that the jury impliedly found he was “merely present at the
scene.†The jury’s not guilty verdicts
on the remaining charges may well have been the product of mistake, compromise,
or lenity. The guilty verdict on the
street terrorism charge reflects the jury’s conclusion that England’s
involvement with the MVB gang was “more than nominal or passive†(
supra, 23 Cal.4th at p. 747), and his conduct on the day in question
willfully promoted, furthered, and assisted in the felonious conduct of his co-defendants.
Sufficient
evidence supports England’s section 186.22(a) conviction for active gang
participation.
III
S
Relying
on Sanchez,
supra, 179 Cal.App.4th at page 1297, Nase contends that, in the absence of
felonious activity other than that underlying the section 186.22(a) offense, s
street terrorism conviction and the felony battery conviction. Thus, he argues, the concurrent three-year
term imposed for his section 186.22(a) conviction must be stayed pursuant to s
The
People disagree with the holding in S
Cal.App.4th 1456 (Herrera) is better
reasoned. There, the court of appeal
held that section 654 permitted separate
punishment for two crimes based on the same act where the defendant held “multiple
criminal objectives.†(
at p. 1466; see also id. at pp.
1466-1468.) The People acknowledge,
however, that the California Supreme Court granted review on this issue in
v. Mesa (2010) 186 Cal.App.4th 773 (review granted Oct. 27, 2010, S185688).
Since
the filing of the briefs in this case, our state’s high court issued its ruling
in People
v. Mesa (2012) 54 Cal.4th 191 (Mesa),
rejecting H
question before us. The charges in
arose out of two separate incidents in which the defendant, an admitted gang
member, shot a victim and was convicted of and punished for assault with a
firearm, possession of a firearm by a felon, and active participation in a
criminal street gang (§ 186.22(a)). (M
654 applies where the ‘defendant stands convicted of both (1) a crime that
requires, as one of its elements, the intentional commission of an underlying
offense, and (2) the underlying offense itself.’†(M
supra, 179 Cal.App.4th at p. 1315.)
Here,
Nase was convicted of felony battery and street terrorism, with the former
serving as the underlying offense for purposes of the latter. Under M
654 does not authorize punishment for both.
We note that the trial court’s imposition of a concurrent three-year
term for the section 186.22(a) conviction avoids the multiple punishment Nase
seeks to address. Nonetheless, we shall
direct the trial court to modify the abstract of judgment to indicate the concurrent
three-year sentence is also stayed pursuant to section
654.
IV
Ineffective
Assistance of Counsel
Nase
claims his trial attorney was incompetent for failing to object to, or attempt
to exclude, limit, or sanitize, evidence of uncharged acts and other
gang-related activity as testified to by gang expert Detective Saario.
To
prevail on a claim of ineffective assistance of counsel, defendant must
show: (1) counsel’s performance was
deficient, falling below an objective standard of reasonableness under
prevailing professional
norms;
and (2) the deficient performance resulted in prejudice. (Strickland
v. Washington (1984) 466 U.S. 668, 687–688 [80 L.Ed.2d 674, 693]; P
216–218.) Prejudice is shown when “there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.†(Strickland,
at p. 694 [80 L.Ed.2d at p. 698].)
Where
the claim is based on trial counsel’s failure to render an objection, a
defendant must prove not only the absence of a reasonable tactical explanation
for the omission but also that the motion or objection would have been
meritorious. (P
1256, 1272.) That an attorney permits
objectionable--or arguably objectionable--testimony to enter the record does not
of itself suggest incompetence. At times
otherwise inadmissible evidence may come out in another form, or the testimony
may cut two ways. (E.g., P
692; In re Lower (1979) 100
Cal.App.3d 144, 150.) And “[b]ecause the
decision whether to object is inherently tactical, the failure to object to
evidence will seldom establish incompetence.â€
(People v. Freeman
(1994) 8 Cal.4th 450, 490-491; see People
v. Frierson (1979) 25 Cal.3d 142, 158.)
Where
the reasons for trial counsel’s failure to object to an alleged error are not
revealed by the record, the claim of incompetence “must be rejected on appeal
unless counsel was asked for an explanation and failed to provide one or there
can be no satisfactory explanation.†(P
467; see People v. Pope (1979) 23
Cal.3d 412, 426 [remedy lies in habeas corpus], clarified on another point in People
v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
Background
Detective
Saario testified as a gang expert in the prosecution’s case-in-chief. Saario stated the MVB gang originated in the
mid-eighties following the emergence of prominent gangs such as the Bloods and the
Crips. The MVB gang’s territory includes
Meadowview Road in Sacramento. Saario
testified that MVB members identify themselves with, among other things, the
letters “B†and “M†which represent Blood and Meadowview, respectively. The gang’s primary activities include
homicides, assaults with deadly weapons, robberies, narcotics sales and
possession, and firearms possession. As
for MVB’s criminal activity, Saario testified regarding gang-related homicides which
occurred in 2006 and 2007.
Saario
testified that Nase, England, and Love were all active MVB gang members at the
time of the August 2009 incident. With
regard to Nase in particular, Saario based his opinion on Nase’s validation as
a gang member in 2004, his prior association with other gang members (including
England), his prior contacts with law enforcement, his clothing (e.g., pictures
of Nase wearing red and draping himself with a red bandana), and his activities
(e.g., pictures of Nase throwing gang hand signs, asking to be housed with
Bloods in jail, and telling jail officials he was with the Meadowview sect of
the Bloods). Saario’s opinion was also
based on Nase’s tattoos: “Piru†which stands
for Bloods; a “C†and a “K†with the “C†crossed out, meaning “Crip Killerâ€;
another “C†crossed out; and his moniker, “Trigger Ru,†with “Ru†being short
for “Piru.â€
Without
objection, Saario testified regarding the following six incidents of uncharged
acts and gang-related activity involving Nase (it is this testimony from which
Nase’s claim of error arises):
(1) On August 18, 2003, Nase was arrested for
selling narcotics in Caesar Chavez Park while wearing all red clothing.
(2) On July 25, 1997, Nase, wearing a red and
white checkered shirt, approached a car and told the victim he “spoke to
Bossman who is in jail for murder†and Bossman told him the victim was a snitch. Nase punched the victim, knocking him to the
ground, and took the victim’s car.
(3) On January 16, 1997, Nase, wearing a red
jacket and burgundy pants and in the company of a validated Oak Park Blood gang
member, was contacted for loitering. A
search revealed Nase was in possession of rock cocaine.
(4) On July 3, 1996, after a traffic stop,
Nase, in the company of a validated MVB member, was arrested for possession of
rock cocaine for sale.
(5) On March 14, 1996, Nase, wearing a red 49’ers
jersey, was arrested following a traffic stop, during which a search of the
vehicle’s trunk yielded several boxes of ammunition and a stolen handgun.
(6) On August 31, 2004, Nase, in the company
of England, was arrested for possession of a loaded firearm and other charges.
Saario
testified further that gang culture commonly relies on fear and intimidation to
gain respect. A gang member committing a
violent act to instill fear and gain respect will in turn benefit the gang by
instilling fear in the community and insuring victims and witnesses will not
cooperate with law enforcement. Saario stated
there was an expectation that gang members back up one another during criminal
activity.
Given
Nase’s gang tattoos, as well as evidence of Nase wearing gang colors, throwing
gang signs, admitting his gang membership to jail officials, and requesting to
be housed with Bloods in jail, any claim denying his gang membership would have
been pointless, if not detrimental to the defense. Nase’s defense counsel proceeded instead on
the defense theory that Nase and the other defendants were no longer
incident, that they “were not there to be in a gang fight because Bloods don’t
fight Bloods,†and that it was the victims who started the altercation and
fired the gun. Thus, on this record,
there is a reasonable tactical explanation why defense counsel allowed the evidence
of the uncharged acts and gang related activity to be introduced.
Nase
argues the evidence was cumulative or otherwise inadmissible, citing Williams,
supra, 170 Cal.App.4th 587.
In
Williams, the defendant was charged
with weapon and drug offenses, active participation in a criminal street gang,
and gang enhancements. The prosecution
introduced evidence of three crimes in which the defendant was involved and 15
contacts between the defendant and law enforcement, some involving criminal
activity. Some of the evidence was
introduced multiple times for different purposes. (Williams,
supra, 170 Cal.App.4th at pp. 598-599, & fn. 5.) The appellate court found that although some
of the evidence was properly admissible, “it was an abuse of discretion to
admit cumulative evidence concerning issues not reasonably subject to dispute. The sheer volume of evidence extended the
trial--and the burden on the judicial system and the jurors--beyond reasonable
limits, and the endless discussions among the trial court and counsel
concerning the admissibility of such evidence amounted to a virtual street
brawl.†(W
p. 611.) The court held the error was
harmless, however, because the evidence was probative to the gang offense and
enhancement, it was not likely the jury’s passions were inflamed, and the jury
acquitted defendant of one gang enhancement and convicted him of a lesser
offense on one count, showing the jury did not accept the evidence
uncritically. (W
Here,
like Williams,
the challenged evidence was directly relevant to and probative of the gang
offense and the gang enhancements. Like
the jury demonstrated its critical consideration of the evidence by
acquitting Nase of the gang enhancement.
Unlike Williams, the
evidence here was admitted only once, garnering very little discussion and few
objections from counsel. The evidence of
Nase’s six prior contacts with law enforcement consumes just five pages in a reporter’s
transcript of over 1,900 pages. Nothing
in the record indicates that the trial court intended to allow the prosecution
the unfettered opportunity to “over-prove their case or put on all the evidence
that they have.†(W
p. 610.) Indeed, the trial court
instructed the jury regarding the limited purpose, specifically instructing the
jurors not to conclude from the evidence that Nase is a person of bad character
or is predisposed to commit crimes. We
presume that the jury followed these instructions. (People
v. Williams (2010) 49 Cal.4th 405, 469.)
V
Restitution
Order--England
England
contends the victim restitution order in the amount of $1,975 was improper in
light of his acquittal of all charges involving victims. (People
v. Percelle (2005) 126 Cal.App.4th 164, 180 (Percelle).)
We
note first that we have some confusion regarding the nature of England’s
claim. It appears to be that the
restitution order itself is improper for the reasons that we will discuss
next. Even so, and noting that the court
as part of its judgment ordered a restitution fine of $600 pursuant to s
additional restitution fine in the same amount pursuant to s
refers to “restitution fines.†That
notwithstanding, given the manner in which his argument is stated, it appears
that he challenges the restitution order in the amount of $1,975.
The
California Constitution, article I,
section 28, subdivision (b), states “(A) It is the unequivocal intention of the
People of the State of California that all persons who suffer losses as a
result of criminal activity shall have the right to restitution from the
persons convicted of the crimes for losses they suffer. [¶] (B)
Restitution shall be ordered from the convicted wrongdoers in every case,
regardless of the sentence or disposition imposed, in which a crime victim
suffers a loss, unless compelling and extraordinary reasons exist to the
contrary. The Legislature shall adopt
provisions to implement this section . . . .â€
S
provides: “It is the intent of the
Legislature that a victim of crime who incurs any economic loss as a result of
the commission of a crime shall receive restitution directly from a defendant
convicted of that crime.†S
the court must order a defendant to make victim restitution in every case in
which a victim suffers economic loss due to a defendant’s conduct. Subdivision (k) of that section states that “victimâ€
includes any person who has sustained economic loss as a result of a crime and
is a relative or household member of the victim.
While
a court may impose victim restitution as a condition of probation regardless of
whether the defendant has been convicted of the underlying crime, the rule is
different where, as here, the defendant does not receive probation. (P
the defendant was convicted of one incident of vehicle theft but acquitted of
another. The trial court ordered
restitution to the victim of the theft of which the defendant was acquitted. (I
order. Focusing on the language of s
held the restitution order was unauthorized because the defendant was not
convicted of that crime. (
at p. 180.) The losses included in the restitution order
were not connected to the defendant; there was no evidence the unauthorized
charges to the victim’s credit card were the result of any crime of which the
defendant was convicted. (Id. at p. 181.)
The
Percelle court did not find an
acquittal precluded restitution in all circumstances. “We merely hold that in the nonprobation
context, a restitution order is not authorized where the defendant’s only
relationship to the victim’s loss is by way of a crime of which the
defendant was acquitted.†(Percelle,
supra, 126 Cal.App.4th at
p. 180, italics added.) That
is not the situation here. England was
convicted of street terrorism. The trial
court ordered him to pay $1,975 in victim restitution to the Victims of Violent
Crime Fund pursuant to section 1202.4. As stated by the prosecution at the
sentencing hearing, the $1,975 represented the victims’ relocation costs. The victims relocated as a result of the
crimes against them on August 9, 2009, that is, Nase’s battery of Lawrence
H., Love’s assault on Damon H., and Love’s burglary of D.W.’s home, as well as
England’s active participation in a criminal street gang. By acting with knowledge of the criminal
purpose of his co-defendants and “with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the [offenses
committed by his co-defendants]†(P
560), England’s gang participation was part and parcel of the crimes that resulted
in damage to the victims in the form of relocation costs. That crime provides the relationship between England
and the losses incurred by the victims, thus rendering the restitution order proper.
In
his supplemental brief, England claims victim restitution increases his maximum
sentence and, as such, imposition of restitution orders on judicially
determined facts violated his constitutional right to a jury trial and proof of
facts beyond a reasonable doubt under S
567 U.S. ___ [183 L.Ed.2d 318] (Southern
Union Co.) and A
[147 L.Ed.2d 435]. As we will explain, neither
Apprendi
nor Southern
Union Co. applies.
We
turn first to the issue of forfeiture.
England argues his failure to object below does not forfeit his claim on
appeal because, among other things, he could not have anticipated the change in
the law occasioned by S
had not yet held that the right to a jury determination applies to sentences of
criminal fines. Thus, England did not
forfeit the claim by his failure to request a jury trial. (See People
v. Black (2007) 41 Cal.4th 799, 810 [“although challenges to procedures or
to the admission of evidence normally are forfeited unless timely raised in the
trial court, ‘this is not so when pertinent law later changed so unforeseeably
that it is unreasonable to expect trial counsel to have anticipated the change’ â€];
People v. French (2008) 43 Cal.4th
36, 48 [waiver of jury trial on lewd conduct with child did not waive right to
jury trial of aggravating sentencing factor of taking advantage of position of
trust and confidence, where at time of plea, no right to jury trial on such
circumstance had been recognized].)
We
turn next to the merits of England’s claim.
Prior to S
court held that, “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.†(
U.S. at p. 490 [147 L.Ed.2d at p. 455],
italics added.)
Thereafter,
in Southern
Union Co., the United States Supreme Court held that S
of criminal fines.†(S
___ [183 L.Ed.2d at p. 325].) There, the
violations at issue were punishable by, inter alia, a criminal fine of
up to $50,000 for each day of violation. (Id. at p. ___ [1
but made no specific factual finding as to the number of days it was in
violation. (I
$38.1 million, concluding from the “ ‘content and context of the verdict
all together’ that the jury found a 762-day violation.†(Id.
at p. ___ [183 L.Ed.2d at p. 326].)
The
United States Supreme Court held that the district court’s factual finding as
to the number of days Southern Union committed the crime violated its
Amendment
Union Co., supra, 567 U.S. at p. ___ [183 L.Ed.2d at p. 328].) In reaching its decision, the Supreme Court
held that “[c]riminal fines, like . . . other forms of punishment, are
penalties inflicted by the sovereign for the commission of offenses.†(Southern
Union Co., supra, at p. ___ [183
L.Ed.2d at p. 327].)
The
case before us is distinguishable from S
Southern
Union Co. “deals with criminal fines, not [victim] restitution.†(U
F.3d 1146, 1150.)
Next,
contrary to England’s claim that restitution orders are punitive, victim restitution,
unlike a fine, generally is not considered to be a form of punishment. (People
v. Harvest (2000) 84 Cal.App.4th 641, 646-650; P
560, 569 [victim restitution “becomes operative as a form of punishment only
where, in a specific procedural context, its imposition produces severe
consequences or a serious effectâ€]; see People
v. Hanson (2000) 23 Cal.4th 355, 361-362 [restitution
is not a penalty “inflicted by the sovereign for the commission of offenses.†(Southern
Union Co., supra, 567 U.S. at p. ___ [183 L.Ed.2d at p. 327].) Rather, victim restitution imposed pursuant
to section 1202.4, subdivision (f), is
intended to directly compensate victims of criminal activity for the resulting losses
they suffer in an effort to “make the victim whole.†(P
Cal.App.4th 1159, 1171-1172; see United
States v. Phillips (9th
Cir. 2012) 704 F.3d 754, 771 (Phillips),
quoting United States v. Newman
(9th Cir. 2011) 659 F.3d 1235, 1241 [“[F]orfeiture and restitution serve
entirely distinct purposes: [¶] ‘Congress conceived of forfeiture as punishment
. . . . The purpose of restitution . . . , however, is not to punish the
defendant, but to make the victim whole again’ â€].)
Finally,
“The Southern Union Court
explicitly held . . . that there could be no ‘Apprendi violation where
no maximum is prescribed.’ †(P
quoting Southern Union Co., supra, 567
U.S. at p. ____ [183 L.Ed.2d at p. 330].) Because victim restitution lacks
a “prescribed statutory maximum,†Southern
Union Co. does not apply. (
not entitled to a jury trial on the issue of victim restitution.
In
any event, the victim restitution award was reasonable. “ ‘ “[S]entencing
judges are given virtually unlimited discretion as to the kind of information
they can consider and the source from whence it comes.†[Citation.]’
[Citation.] [¶] This is so because a hearing to establish the
amount of restitution does not require the formalities of other phases of a
criminal prosecution. [Citation.]†(People
v. Foster (1993) 14 Cal.App.4th 939, 947; see also P
130.) “When the probation report
includes information on the amount of the victim’s loss and a recommendation as
to the amount of restitution, the defendant must come forward with contrary
information to challenge that amount.†(F
1403, 1406-1407; In re S. S. (1995)
37 Cal.App.4th 543, 546; Hartley, supra,
at p. 130.)
“When
considering a trial court’s restitution determination, we consider whether it
is arbitrary, capricious, or beyond the bounds of reason under all the
circumstances. “ (People v. Hove (1999) 76
Cal.App.4th 1266, 1275.)
Here,
the probation report recommended that the Victim Compensation and Government
Claims Board be reimbursed $1,975 for “the cost of relocating after the
incident for Lawrence H.†D.W. testified
she moved from her house approximately a month and a half after the
incident. England did not provide any
factual basis, or any reason whatsoever, to dispute the fact that D.W.
relocated after the incident or the amount set forth in the probation
report. We find no grounds on the record
before us to find the restitution award unreasonable.
VI
Witness
Impeachment
Love
contends the trial court committed prejudicial error when it denied his request
to impeach Damon H. with evidence of a prior misdemeanor conviction.
Evidence
of past misdemeanor conduct bearing on a witness’s veracity is admissible in a
criminal proceeding subject to the trial court’s discretion. (P
take into account, as applicable, those factors traditionally deemed pertinent
in this area. [Citations.] But additional considerations may apply when
evidence other than felony convictions is offered for impeachment. In general, a misdemeanor--or any other
conduct not amounting to a felony--is a less forceful indicator of immoral
character or dishonesty than is a felony.
Moreover, impeachment evidence other than felony convictions entails
problems of proof, unfair surprise, and moral turpitude evaluation which felony
convictions do not present. Hence,
courts may and should consider with particular care whether the admission of
such evidence might involve undue time, confusion, or prejudice which outweighs
its probative value.†(
pp. 296-297.)
“[T]he
trial court enjoys broad discretion in assessing whether the probative value of
particular evidence is outweighed by concerns of undue
prejudice . . . .
[Citation.]†(P
1060, 1124.) A trial court’s “exercise
of that discretion ‘must not be disturbed on appeal except on a showing that
the court exercised its discretion in an arbitrary, capricious or patently
absurd mann
| Description | Defendants Donyae Nase, Andre Love, and William England were driving through a residential neighborhood in the Meadowview area of Sacramento when they came upon two cars stopped in the middle of the street. Unable to pass, they pulled over, got out of their car, and exchanged words with several people from the neighborhood. Defendants identified themselves as members of a gang called the Meadowview Bloods (MVB) and a confrontation ensued, during which one of the victims was punched in the head, another was choked until he passed out, and others were threatened at gunpoint as one of the defendants tried to force his way into a victim’s home. The incident ended after several witnesses saw Love fire several shots. Defendants fled, eventually dropping Love off near an emergency room with a gunshot wound to his leg. |
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