P. v. Kelley

Filed 8/15/07 P. v. Kelley CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Nicholas Coston Kelley appeals his conviction for first degree murder. (Pen. Code,  187/189.)[1] The jury found true allegations that he personally discharged a firearm causing death ( 12022.53, subds. (b)-(d)), and that the murder was committed for the benefit of, and in association with, a criminal street gang ( 186.22, subd. (b)(1)(A)). Kelley was sentenced to 50 years to life, consisting of 25 years to life for the murder, and 25 years for the section 12022.53, subdivision (d) enhancement. Sentences on the other enhancements were stayed. ( 654.) Kelley claims prejudicial error in the admission of character and opinion evidence and the exclusion of evidence supporting his defense. He also claims the trial court erred in determining custody credits. We will order a modification of the abstract of judgment to reflect the correct custody credits. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

After attending a high school football game, Michael Marshall, Paul W. and three other friends went to a party. After the party, the group was talking to a girl standing at a nearby car when Kelley walked up to Marshall and asked where he was from. When Marshall answered that he was from the "40's," Kelley shot Marshall in the chest, killing him. Kelley was an active member of the "190 East Coast Crips" gang and, in gang parlance, asking a person where he is from indicates a belief that the person is a member of another gang and is usually followed by an act of violence. Marshall's answer that he was from the "40's" indicated that he belonged to a criminal street gang known as the "Rolling 40's" Crips gang.

DISCUSSION

Statements by Kelley to Fellow Gang Member Properly Admitted

Kelley contends that the trial court erroneously admitted statements he made to a fellow gang member. Kelley argues that the evidence is inadmissible character evidence and, even if relevant, should have been excluded as unduly prejudicial. (Evid. Code,  352.) We disagree, and conclude that the trial court did not abuse its discretion in admitting the evidence.

The police recorded a conversation between Kelley and another gang member, Javier Johnson, while Kelley was in lockup. The conversation was played for the jury during trial. In the conversation, Kelley discussed his shooting of Marshall, information given to the police by witnesses, and Kelley's statements to the police about the shooting. Kelley challenges a brief section of the conversation where, in describing another incident, Kelley told Johnson that he "had got the 30-30," because he "was getting ready to clean . . . up" the neighborhood so that it would be "Slob and Di-ru free."[2] Interpreting some of the gang slang used by Kelley, the prosecution's gang expert testified that the words "Slob" and "Di-ru" were derogatory references to members of rival gangs, and that Kelley was expressing his intent to rid his neighborhood of such gang members.

Evidence of gang activity is admissible if relevant to establish the defendant's motive, intent or a fact concerning the charged offense as long as the probative value of the evidence outweighs its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193.) "Evidence of the defendant's gang affiliation--including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)

Conversely, gang evidence is not admissible when its sole purpose is to show a defendant's criminal disposition or bad character. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) In addition, the trial court must carefully scrutinize all gang-related evidence because of its potentially inflammatory impact on the jury. (People v. Williams, supra, 16 Cal.4th at p. 193.) We review the admission of evidence for abuse of discretion, and a trial court's ruling will not be disturbed unless it is arbitrary or capricious and results in a miscarriage of justice. (People v. Brown (2003) 31 Cal.4th 518, 547; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Here, the challenged evidence was relevant and probative to show Kelley's willingness, if not his seeming eagerness, to kill members of rival gangs. Kelley argues that a statement regarding an encounter on an unknown date has no bearing on his shooting of Marshall. It was Kelley, however, who chose to discuss his desire to kill rival gang members in a conversation devoted primarily to Marshall's killing. Also, Marshall was a member of a rival gang and was shot with a "30-30" weapon which, in the challenged statement, Kelley claimed to have in his possession. We also reject Kelley's argument that the evidence was cumulative of other gang evidence. Considerable gang evidence was necessary to explain a crime that was so fundamentally gang motivated.

Gang Expert's Opinions Properly Admitted

Kelley contends that the trial court erroneously admitted testimony by the prosecution's gang expert, Sergeant Frederick Reynolds, interpreting statements made by Kelley to Javier Johnson during their recorded conversation. Kelley claims the testimony consisted of conclusions within the purview of the jury, and that Reynolds was opining as to Kelley's specific intent rather than gang culture and behavior. We disagree, again concluding that the trial court did not abuse its discretion.

Expert testimony is admissible when the subject matter of the testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (People v. Gardeley (1996) 14 Cal.4th 605, 617; Evid. Code, 801, subd. (a).) Expert testimony concerning the culture, habits, and psychology of gangs as well as motivation for a particular crime and rivalries among gangs satisfies this requirement. (Gardeley, supra, at p. 617; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.)

Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is also admissible. (People v. Killebrew, supra, 103 Cal.App.4th at p. 651; Evid. Code, 805.) But, an expert is not permitted to express his or her own belief in the defendant's guilt or innocence, or give an opinion regarding the specific knowledge or intent of the defendant on trial. (People v. Gonzalez (2006) 38 Cal.4th 932, 946; Killebrew, supra, at p. 651.)

Kelley challenges the opinions given by gang expert Reynolds concerning two statements by Kelley to Javier Johnson. First, Reynolds gave his opinion regarding Kelley's statement that he "was getting ready to clean that motherfucka up, cuz" so that it would be "Slob and Di-ru free." When asked his opinion regarding the "mind set" of gang members who express such "feelings toward their rivals," Reynolds testified that "[i]t tells me that they are committed to using violence against members of the rival gang and they're committed to enhancing or furthering the reputation of the gang that they are a member of."

This opinion is admissible expert testimony regarding the culture and psychology of gang members to use of violence against rivals to enhance their reputation. (See People v. Gonzalez, supra, 38 Cal.4th at p. 945.) The opinion relates to the motive and intent of gang activity, and the "mind set" of gang members generally rather than the subjective intent of Kelley at the time of the Marshall killing. Reynolds was not asked to give an opinion as to whether Kelley killed Marshall or Kelley's actual state of mind at the time of the killing. Moreover, the prevalence of gang slang was such that some testimony was required simply to explain the meaning of the phrases "clean up" the neighborhood and make it "Slob and Di-ru free."

Sergeant Reynolds's opinion might, together with other evidence, lead the jury to conclude that Kelley belonged to a gang that encouraged the use of violence, and further conclude that Kelley intended to kill Marshall because Marshall was a rival gang member. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) But, the "law does not disfavor the admission of expert testimony that makes comprehensible and logical that which is otherwise inexplicable and incredible." (Ibid.)

Second, during the conversation between Kelley and Johnson, Kelley related how, after his arrest, he felt compelled to talk to the police about the killing. He told Johnson that he told the police that Marshall came up to him when he was "trying to talk to the . . . girl inside the party," and made some sort of a threat, and that Kelley followed Marshall outside "to see what he was gon' do, 'cause I was in fear for my life." Kelley then told Johnson that he told the police that, once outside, Marshall "acted like he was about to draw a pistol, so I was in fear for my life and I shot him, you know what I'm sayin'. That's not what actually happened, though, 'cause I was on some gangbang shit."

The prosecutor asked Reynolds to interpret the concluding sentence: "That's not what actually happened, though, 'cause I was on some gangbang shit." Reynolds testified that the sentence "in the context of the rest of his statement implies" that the statement about the encounter with Marshall up to the shooting "was not true."

This opinion is troubling because the phrase "that's not what actually happened" can be interpreted by a lay jury without assistance by an expert. But, Sergeant Reynolds was also interpreting the claim that Kelley "was on some gangbang shit," and the trial court could reasonably conclude that the jury needed assistance in interpreting the meaning of "some gangbang shit" as an expression of a criminal motive that was inconsistent with the story he told the police. Under all the circumstances, there was no abuse of discretion in admitting the testimony. Also, there could be no prejudice in interpreting a phrase whose meaning could not be interpreted in any other manner.

No Error in Excluding Testimony by Investigator Lopez

Kelley called police investigator Richard Lopez to testify at trial. In an offer of proof, defense counsel stated that Lopez obtained information from interviews of Kelley and others that supported Kelley's self-defense theory by showing that, before the murder, there was a fight over a girl and that someone was looking for Kelley in a threatening manner.[3] The trial court sustained the prosecution's hearsay objection, and excluded testimony by Lopez.

Kelley does not challenge the trial court's ruling on the hearsay objection but contends that the evidence was admissible, not for its truth, but as nonhearsay circumstantial evidence of Kelley's state of mind when he shot Marshall. (See, e.g., People v. Frye (1985) 166 Cal.App.3d 941, 950.) This theory of admissibility may not be considered on appeal because it was not raised in the trial court.

An objection to the admission or exclusion of evidence based on a different ground from that advanced at trial does not preserve the claim for appeal. (People v. Hill (1992) 3 Cal.4th 959, 988-989, disapproved on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1070, fn. 13.) In Hill, the trial court sustained a prosecution hearsay objection. For the first time on appeal, the defendant argued that the evidence was admissible as a nonhearsay explanation of the defendant's state of mind. The Supreme Court held that the claim had been waived because the defendant failed to make an offer of proof in the trial court apprising the court of this purpose for the evidence. (Hill, supra, at p. 989, citing Evid. Code,  354, subd. (a).) The court stated that its holding was "in accord with 'the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.'" (Hill, supra, at p. 989.)

Similarly, in the instant case, Kelley sought admission of statements made to investigator Lopez to prove that there had been a fight over a girl and a possible threat to Kelley shortly before the shooting. He did not argue that the statements constituted nonhearsay circumstantial evidence of his state of mind.

We review Kelley's claim on its merits because he contends, in the alternative, that counsel's failure to raise the nonhearsay basis for admission of the evidence denied him effective assistance of counsel. We reject this contention because there is no sound basis for admission of the evidence on that theory.

To prevail on an ineffective assistance claim, a defendant must establish objectively deficient performance by counsel that resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Bolin (1998) 18 Cal.4th 297, 333.) Failure to object to the exclusion of evidence cannot show ineffective assistance if there is no sound legal basis for admission of the evidence. (See People v. Majors (1998) 18 Cal.4th 385, 403.)

Hearsay is an out-of-court statement offered at trial to prove the truth of the matter asserted in the statement. (Evid. Code, 1200, subd. (a).) An out-of-court statement that directly declares a declarant's mental state is hearsay, but admissible for its truth as an exception to the hearsay rule when offered to prove the declarant's state of mind. (Evid. Code,  1250, subd. (a).)

Conversely, an out-of-court statement which does not directly declare a mental state, but is circumstantial evidence of a state of mind, is not hearsay. "Evidence of a declarant's statement is not hearsay if it relates facts other than declarant's state of mind and is offered to circumstantially prove the declarant's state of mind." (People v. Frye, supra, 166 Cal.App.3d at p. 950.) It is not received for the truth of the matter stated, but rather the fact the statement was made is relevant to a determination of the declarant's state of mind. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.)

To the extent Kelley directly asserted to Lopez that he had the mental state of fear for his life, the evidence was hearsay. Although potentially admissible under Evidence Code section 1350, Kelley does not challenge the trial court's ruling that the statement was self-serving and untrustworthy. (See Evid. Code, 1252.)

Based on his offer of proof and the record as a whole, however, Kelley is focusing on his purported statements to investigator Lopez that there had been a fight over a girl and a threat posed by another party-goer shortly before he shot Marshall. Contrary to Kelley's argument, these statements were, and could only be, offered for the truth of the matter stated and, therefore, inadmissible hearsay. The statements are relevant only if there actually had been a fight with a girl and the presence of a person who presented a threat to Kelley. As Kelley concedes, the occurrence of such events might undermine the prosecution theory that Kelley simply walked up to Marshall and shot him for no reason other than "gangbanging," but nothing in the record supports admission of the evidence to show that Kelley merely believed the events occurred and formed a state of mind based on his belief.

In any event, evidence had already been admitted in the form of statements to Javier Johnson that Kelley told the police that Marshall came up to him when he was talking to a girl at the party, and that Kelley followed Marshall outside because he "was in fear for my life" and, once outside, Marshall "acted like he was about to draw a pistol, so I was in fear for my life and I shot him." Accordingly, we conclude beyond a reasonable doubt that the jury would not have reached a result more favorable to Kelley if similar evidence in the form of testimony by investigator Lopez had been admitted. (Chapman v. California (1967) 386 U.S. 18, 24; see alsoPeople v. Noguera (1992) 4 Cal.4th 599, 623.)

Abstract of Judgment Must be Corrected

Kelley contends that, although the trial court calculated that Kelley spent 239 days in custody, the sentencing order and abstract of judgment indicate no credit for his actual time served, and should be corrected to reflect the 239 days. The People concede that the abstract of judgment should be corrected to reflect 239 days in custody, and we agree. ( 2900.5; see People v. McNamee (2002) 96 Cal.App.4th 66, 74.)

DISPOSITION

The abstract of judgment is modified to reflect a total of 239 days of presentence credit reflecting the number of days Kelley spent in actual custody. The clerk of the superior court is ordered to prepare and forward an amended abstract of judgment to the Department of Corrections. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Allen J. Webster, Jr., Judge

Superior Court County of Los Angeles

______________________________

Leslie Conrad, 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, Roberta L. Davis, Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

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

[2] The statement in its entirety is as follows:

Kelley: "Cuz, was that the same nigga Ihey, peep this, cuz. It's a it's a OG nigga from Shoes that stay on Turmont up in the 'hood, cuz, and I was walking around one day, cuz. I was blew the fuck up. It was a young nigga from Shoes, cuz, sitting up in his car with the OG nigga that stay on Turmont up in the 'hood."

Johnson: "On the Westside?"

Kelley: "Yeah, he was rolling a blunt and shit, cuz. And he got hurt, took my ass to the house. I had got the 30-30, cuz. . . . I had so much shit to do in the 'hood, cuz. I was 'cause I was getting ready to clean that motherfucka up, cuz. That shit was about to be Slob and Di-ru free, cuz. I was gon' clean that shit up, cuz. Cuz, on the 'hood."

[3] In his offer of proof, defense counsel stated, in substantial part, that there is "substantial evidence about what happened before this happened. The whole thing with the fight over the girl. [] And in addition to that, there's a part where someone came into the party looking for Mr. Kelley . . . . And part of our theory is that that was another one of Mr. Marshall's co-gang members looking for Mr. Kelley to do something to him, which further goes to show that Mr. Kelley was justified in defending himself against the five gentlemen that were standing there . . . . [] Mr. Kelley had to leave, and the evidence is going to be he had to run and jump over a fence to get out of there. And I just think that the record is not quite clear as to exactly what preceded the shooting. And right now the jury may think that he just walked up and shot [Marshall]."