P. v. Reed

Filed 10/17/07 P. v. Reed CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Ricko Reed appeals a judgment following conviction of attempted willful, deliberate, and premeditated murder, and shooting at an inhabited dwelling, with findings of personal firearm use and acts committed to benefit a criminal street gang. (Pen. Code, 189, 664, 246, 12022.53, subds. (b), (c), (d), & (e), & 186.22, subd. (b)(1).)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

Murder of Deandre Harper (count 1)

Attempted Murder of Lakeisha Oglesby (count 4)

Shortly after midnight on April 4, 2003, Deandre Harper and Lakeisha Oglesby left Harper's residence on East 103rd Street in Los Angeles. Harper was a member of the "Front Street Crips" criminal street gang, and his gang moniker was "Squeak." As Harper and Oglesby walked to the street, an automobile drove by and stopped. Two men left the automobile and shot Harper many times. Oglesby ran and the men chased and shot her. One man stated to the other: "Get that bitch cuzz. Get that bitch, too, cuzz."

Oglesby flagged a passing police car and obtained assistance. Her two pursuers retreated. Oglesby suffered gunshot wounds to her arms, back, and wrist. Harper died at the scene of the shooting from multiple gunshot wounds. According to the pathologist, Harper's gunshot wounds reflected a "back-to-front" entry; two wounds to his head were "rapidly fatal." Police officers recovered spent .45-caliber ammunition casings and .9-millimeter ammunition casings in the street near Harper's home.

Attempted Murder of Andre Melton (count 2)

Shooting of the Oglesby residence (count 3)

During the evening of August 10, 2003, Andre Melton and Oglesby attended a gathering at a residence on 105th Street in Los Angeles. Melton, a member of the Front Street Crips, heard gunshots and dove to the ground. He then realized that he received a gunshot wound to his left hand. Melton saw that another partygoer was also shot and he drove him to the hospital for treatment. Paramedics later treated Melton for his hand wound.

At the time of the shooting, Oglesby sat in her automobile near the residence. She saw a gray Nissan Altima automobile drive by, fire "a lot of shots," and speed away. Oglesby returned to her home nearby.

There her father, Edwin Oglesby, heard the sound of gunshots. He opened the front door and saw gunshots being fired at his daughter's car and at the front doorway. Edwin quickly moved away to avoid being shot. He saw a gray automobile with tinted windows drive by, and he summoned police officers.

Police Officers Gerado Vejar and Dean Montelone arrived at the Oglesby residence. They recovered spent .9-millimeter ammunition casings in the street in front of the Oglesby home. They also saw strike marks on the exterior walls that were consistent with gunshots, and bullet holes in Lakeisha's automobile. Edwin Oglesby reported that the gunman drove a gray Nissan Altima with chrome wheels.

Officer Vejar also interviewed Andre Melton. Melton stated that Reed drove a gray Nissan Altima automobile with 20-inch chrome rims, and fired a gun striking him on his left middle finger. Melton also reported that he met Reed earlier that day. Reed drove the same Nissan Altima, and pulled a gun on Melton, stating, "I should kill you now nigga." Reed then put away the gun, returned to his automobile, and drove away. Melton identified Reed as a member of the criminal street gang, Front Street MOB ["Money Over Bitches"].

On October 15, 2003, Police Detective Donovan Nickerson interviewed Melton and secretly recorded the interview. Melton stated that he saw Reed earlier the day of the shooting "totally face-to-face," and that he wore hair braids. Reed exchanged words with Melton and his friends. Melton stated that Reed returned that evening and shot at partygoers. Melton added that he preferred to see Reed "on the streets and handle it that way." The prosecutor played portions of the recorded interview at trial.

At trial Edwin Oglesby testified that he recalled only that the lone gunman drove a gray automobile with tinted windows.

Melton testified and denied making his earlier statements to police officers. Specifically, he denied stating that Reed had shot him and testified that he did not see the gunman. Melton stated that his probation officer ordered him to testify.

Uncharged Shooting of Daryl Davis

On May 25, 2003, Daryl Davis, a member of the Front Street Crips whose moniker is "T-Bone," was shot in the leg with shotgun pellets as he walked on Central Avenue. Davis informed police officers that an occupant or occupants of a dark-colored sports utility vehicle shot at him. A police officer found spent .9 millimeter and .40-caliber ammunition casings in the general area of the shooting. Another police officer found a cellular telephone in the street. At trial, the parties stipulated that Reed owned the cellular telephone.

The trial court admitted evidence of the Davis shooting as relevant to motive, identity of the assailant in the charged offenses, and the existence of a common scheme or plan.

Firearm, Ballistics, and Gang Evidence

After speaking to Edwin Oglesby and Melton, police officers drove to Reed's residence. They saw two vehicles parked in an alley, each containing two men. Reed sat in the passenger seat of one of the vehicles, a burgundy sports utility vehicle. Officers searched the vehicles and found a firearm in each. A .9-millimeter Walther semi-automatic firearm lay under the seat where Reed had been sitting. It contained 16 rounds of ammunition. Officers arrested the four men. Reed wore hair braids and admitted that he was a member of Front Street MOB.

Firearms examiner Starr Sachs compared the spent .9-millimeter ammunition casings found at the scene of the Harper murder, the Davis shooting, and the Oglesby house shooting, with the .9-millimeter Walther semi-automatic firearm recovered by police officers. She opined that the Walther firearm had fired the ammunition.

Los Angeles Police Officer Jeffrey Heller testified as an expert regarding the Front Street Crips and MOB criminal street gangs. He stated that the primary activities of the Front Street Crips included murders, shootings, robberies, and narcotic sales. Heller testified that MOB was a subset of Front Street Crips, and the two gangs had a "very tumultuous" relationship. Heller opined that the Harper, Davis, Melton, and Oglesby shootings (all Front Street Crips) furthered Reed's position within MOB.

Heller also testified regarding a letter found in Reed's residence addressed to another MOB member (the "T-Dre letter"). In part, the letter stated: "Oh, you heard about your boy Squeak [Deandre Harper], huh . . . One down and five more to go. . . . Happy to have that nigga out of the way. . . .  T-Bones [Daryl Davis] happy go lucky ass has to go too." The letter closed with Reed's gang moniker, "T-Dre."

The jury convicted Reed of the attempted willful, deliberate, and premeditated murder of Andre Melton, and the shooting at an inhabited dwelling. ( 189, 664, & 246.) It found that he personally used a firearm and committed the acts to benefit a criminal street gang. ( 12022.53, subds. (b), (c), (d), & (e), & 186.22, subd. (b)(1).) The jury also found several factors in aggravation of sentence. It could not agree upon the murder of Deandre Harper (count 1), or the attempted murder of Lakeisha Oglesby (count 4), and the trial court declared a mistrial regarding those counts. The trial court sentenced Reed to a total prison term of 57 years to life, consisting in part of an upper term for count 3, and consecutive sentencing.

Reed appeals and contends that: 1) the trial court erred by not dismissing the present convictions pursuant to the rule in Kellett v. Superior Court (1966) 63 Cal.2d 822; 2) the trial court erred by permitting the gang expert to opine regarding guilt; 3) the trial court erred by instructing that the uncharged Davis shooting was relevant to establish identity; and 4) the trial court abused its discretion by not reviewing law enforcement files in camera pursuant to Pitchess v. SuperiorCourt (1974) 11 Cal.3d 531.

DISCUSSION

I.

Reed argues that the trial court erred by not dismissing his present convictions pursuant to Kellett v. Superior Court, supra, 63 Cal.2d 822, requiring joinder of related criminal acts in one prosecution. He points out that he was charged with, pleaded nolo contendere to, and was sentenced for carrying an unregistered loaded firearm in violation of section 12031, subdivision (a)(1), within a month after police officers found the loaded Walther firearm under the passenger seat of the sports utility vehicle where he had been sitting.[2] (People v. Reed (Super. Ct. Los Angeles County, 2003, No. TA071352.) He adds that the prosecutor filed a felony complaint charging the present offenses with firearm enhancements approximately six months later.

Reed points out that police officers initially arrested him for attempted murder, not possession of an unregistered firearm. He adds that Melton identified him the day of the shooting, that Oglesby described a gray Nissan Altima automobile, and that spent .9 millimeter ammunition casings lay outside the Oglesby residence. In sum, Reed contends that Kellett v. Superior Court, supra, 63 Cal.2d 822, and decisions following, preclude the present prosecution. (E.g., People v.Flint (1975) 51 Cal.App.3d 333, 338 [improper to prosecute defendant in separate prosecutions for driving under the influence and for theft of the automobile that he had been driving at the time of arrest]; In re Grossi (1967) 248 Cal.App.2d 315, 321-322 [improper to prosecute defendant in separate prosecutions for armed robbery and possession of a firearm by a felon].)

Section 654, subdivision (a), provides that ". . . [a]n acquittal or conviction and sentence under [a provision of law] bars a prosecution for the same act or omission under any other." In Kellett v. Superior Court, supra, 63 Cal.2d 822, 827, our Supreme Court required joinder of related criminal offenses to avoid harassment of the defendant and the waste of public funds: "When . . . the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence [footnote omitted]." Kellett concerned separate prosecutions for brandishing a firearm and possession of a deadly weapon by a felon based upon "the same act or course of conduct" defendant standing on the sidewalk holding a firearm. (Id., at p. 827.)

Whether the same act or course of conduct plays a significant part in more than one offense for purposes of section 654 invokes the trial court's fact-finding function and the substantial evidence scope of review. (People v. Turner (1985) 171 Cal.App.3d 116, 129.) Moreover, Kellett "does not require, nor do the cases construing it, that offenses committed at different timesand atdifferent places . . . be prosecuted in a single proceeding." (People v. Cuevas (1996) 51 Cal.App.4th 620, 624.)

Here the offense of carrying an unregistered firearm in a vehicle and the offenses of murder, attempted murder, and shooting at an inhabited dwelling occurred at different times and places, involved different victims, and different evidentiary requirements. Although the offenses involved the common ground of Reed's possession of the .9 millimeter Walther firearm, the evidentiary overlap is minimal. Proof of the firearm carrying offense involves evidence that Reed possessed the Walther firearm while sitting as a passenger within the sports utility vehicle; proof of the offenses of murder, attempted murder, and shooting at an inhabited dwelling involved the elements of those serious crimes, evidence of criminal street gang rivalry between the Front Street Crips and MOB, evidence of Reed's admissions within the "T-Dre letter," and witness descriptions of the gray Nissan Altima automobile. Separate prosecutions here also further the public policy that Reed not plead quickly to a less important charge and escape prosecution for very serious crimes. (Kellett v. Superior Court, supra, 63 Cal.2d 822, 828.) The trial court did not err by refusing to dismiss the convictions for the attempted murder of Melton and for shooting at the Oglesby dwelling.

II.

Reed contends that the trial court erred by permitting Officer Heller, a gang expert witness, to opine regarding guilt, over a general defense objection. He refers to the hypothetical question posed by the prosecution which assumed the Harper, Oglesby, Davis, and Melton shootings, the discovery of the Walther firearm and the "T-Dre" letter, and the ballistics evidence, and then inquired whether Heller had "an opinion as to whether those crimes were committed for the benefit of Ricko Reed as a gang member of . . . MOB?" Heller replied that commission of those crimes "would further [Reed's] position within the gang . . . ."

Reed points out that expert witness opinion regarding guilt or innocence is inadmissible because it is of no assistance to the trier of fact. (People v. Torres (1995) 33 Cal.App.4th 37, 47.) He relies upon People v. Killebrew (2002) 103 Cal.App.4th 644, 658 [error to permit gang expert to testify that "a specific individual had specific knowledge or possessed a specific intent"]. Reed asserts the error denied him a fair trial and due process of law, and was not harmless beyond a reasonable doubt.

The law has long recognized that evidence of criminal street gang sociology is beyond the common experience and is a proper subject of expert testimony. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v.Killebrew, supra, 103 Cal.App.4th 644, 656-657 [collecting decisions].) The prosecutor may introduce evidence of gang affiliation and gang activity where such evidence is relevant to motive or intent. (People v.Gonzalez, supra, 126 Cal.App.4th 1539, 1550.) Thus, "[e]xpert testimony repeatedly has been offered to show the 'motivation for a particular crime, generally retaliation or intimidation' and 'whether and how a crime was committed to benefit or promote a gang.'" (Ibid.)

Moreover, a gang expert witness may render an opinion regarding gang-related activity in the form of a hypothetical question and answer as long as the hypothetical rests upon evidence at trial. (People v. Gonzalez, supra, 126 Cal.App.4th 1539, 1551, fn. 4; People v. Gardeley (1996) 14 Cal.4th 605, 618-619 [expert properly opined that hypothetical attack based upon evidence at trial was example of gang-related activity].) The witness may also opine upon an ultimate issue in the trial. (Evid. Code, 805 ["Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact."]; People v. Valdez (1997) 58 Cal.App.4th 494, 507 [gang expert witness permitted to opine whether defendant acted for benefit of criminal street gang].)

Here Officer Heller's testimony properly explained the rivalry between the Front Street Crips and MOB, and the meaning of the phrases in the "T-Dre" letter, among other things. The trial court did not err by permitting Heller to answer the hypothetical question in view of the well-settled law regarding gang expert witness evidence. The trial court also properly instructed the jury concerning the presumption of innocence and burden of proof (CALJIC No. 2.90); the jury's role in determining whether facts have been proved (CALJIC No. 1.00); the evaluation of hypothetical questions posed to an expert witness (CALJIC No. 2.82); and the evaluation of expert witness testimony generally (CALJIC No. 2.80.) We presume that the jury understood and followed the instructions. (People v. Osband (1996) 13 Cal.4th 622, 714.)

People v. Killebrew, supra, 103 Cal.App.4th 644, is not helpful to Reed. There, a police officer testified that "when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun." (Id., at p. 652.) The reviewing court concluded that the officer's testimony improperly opined regarding an ultimate issue of the subjective knowledge and intent of each occupant of the vehicle. (Id., at p. 658.) The reviewing court noted that the officer's testimony was the sole evidence introduced to establish the crime of conspiracy, and it "did nothing more than inform the jury how [the expert] believed the case should be decided." (Id., at p. 658.) Here, eyewitness testimony, ballistics evidence, and the "T-Dre" letter connected Reed to the shootings. Moreover, well-settled law permits expert witness testimony regarding gang motivation and retaliation. (Id., at p. 657.)

III.

Reed contends that the trial court erred by instructing that the jury could consider the uncharged Davis shooting to establish the identity of the person who committed the charged offenses. (CALJIC No. 2.50 ["Evidence of Other Crimes"].) He asserts that the uncharged crime and the charged crimes are not sufficiently similar, pointing to these differences: Davis reported that an occupant or occupants of a dark-colored sports utility vehicle (not a gray Nissan) shot at him; he received wounds from shotgun pellets, not .9 millimeter ammunition; .40-caliber spent ammunition was recovered at the scene of the Davis shooting; the charged offenses sometimes involved more than one shooter; and during the shootings of Deandre Harper and Lakeisha Oglesby, the assailants were on foot. Reed argues that the circumstances of the uncharged and charged crimes are not "'so unusual and distinctive as to be like a signature.'" (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) He asserts the error is prejudicial and denies him due process of law because evidence of the uncharged crime is inflammatory.

The trial court did not err by admitting evidence of the uncharged Davis shooting as relevant to issues of motive and common plan, as well as identity. The trial court also properly instructed with CALJIC 2.50. Here the presence of spent .9 millimeter ammunition casings at the scenes of the uncharged and charged counts alike "strongly indicat[es] that the same person committed each crime." (People v. Carpenter (1997) 15 Cal 4th 312, 361-362.)

Moreover, Reed did not suffer any prejudice. CALJIC No. 2.50 instructs that evidence of the uncharged crime could not be used to show that Reed was a person of bad character or that he had a propensity to commit crimes. Evidence of the uncharged crime was no more inflammatory or prejudicial than evidence of the charged crimes. (People v.Ewoldt, supra, 7 Cal.4th 380, 405.) The evidence was also properly admitted as relevant to motive and the existence of a common scheme or plan.

IV.

Reed argues that the trial court abused its discretion by not reviewing the personnel files of Police Officers Vejar, Monteleone, and McGee, in camera pursuant to Pitchess v.Superior Court, supra, 11 Cal.3d 531. He asserts that his attorney's declaration that "[t]he officer(s) falsely claimed that a 9 mm handgun allegedly tied by the prosecution to various crimes was recovered from a [vehicle] beneath the seat that defendant was sitting in . . . in order to fabricate evidence against defendant" is sufficient to satisfy the "relatively low threshold for discovery" and "relatively relaxed standards" of good cause pursuant to Evidence Code section 1043, subdivision (b)(3). (City of SantaCruz v. Municipal Court (1989) 49 Cal.3d 74, 83-84.)[3] Reed points out that the requisite showing may be satisfied by "'general allegations which establish some cause for discovery.'" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)

Confidential peace officer personnel records may be discovered pursuant to Evidence Code sections 1043 and 1045 upon a showing of good cause. (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312.) To establish good cause within Evidence Code section 1043, subdivision (b)(3), defense counsel must "describe a factual scenario supporting the claimed officer misconduct." (Warrick v. Superior Court, supra, 35 Cal.4th 1011, 1024.) The factual scenario may consist of a denial of facts asserted in police reports. (Id., at pp. 1024-1025.) A factual scenario of officer misconduct is plausible if it is "one that might or could have occurred." (Id., at p. 1026.) Accordingly, defense counsel's supporting declaration "must propose a defense, and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense." (Giovanni B. v. Superior Court,supra, 152 Cal.App.4th 312, 319.)

The trial court did not abuse its discretion by denying the Pitchess motion because Reed did not establish a sufficient factual showing to require an in camera review of the requested records. Reed's bare assertions that the police officers were untruthful concerning discovery of the Walther firearm and its connection to the charged crimes fails to explain the proposed defense. (Warrick v. Superior Court,supra, 35 Cal.4th 1011, 1024 ["Counsel's affidavit must also describe a factual scenario supporting the claimed officer misconduct."]; Giovanni B. v. Superior Court,supra, 152 Cal.App.4th 312, 319.) "To show good cause as required by [Evidence Code] section 1043, defense counsel's declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges." (Warrick v. Superior Court, supra, 35 Cal.4th 1011, 1024.)

By contrast, the factual scenario established in Warrick v. Superior Court, supra, 35 Cal.4th 1011, 1017, included counsel's declaration setting forth defendant's version of the events leading to his arrest. Also, in People v. Hustead (1999) 74 Cal.App.4th 410, 416-417, defendant disputed the arresting police officer's report by stating that he did not drive in the manner described by the officer nor did he drive the particular route asserted in the report. (Ibid.; [declaration "demonstrated that appellant's defense would be that he did not drive in the manner suggested by the police report and therefore the charges against him were not justified."].) "[R]elatively relaxed standards" of good cause is not the equivalent of no standard of good cause warranting discovery of police officer personnel records. (City of SantaCruz v. Municipal Court, supra, 49

Cal.3d 74, 83-84 [stating general rule of "relatively relaxed standards" warranting discovery].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Allen J. Webster, Jr., Judge

Superior Court County of Los Angeles

______________________________

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All further statutory references are to the Penal Code unless stated otherwise.

[2] Section 12031, subdivision (a)(1), provides: "A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street . . . ."

[3] We attach the relevant portion of counsel's declaration as an appendix to this opinion.