(Super.Ct.No. FSB802245, FSB803385) APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.
The opinion of the court was delivered by: King J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Singa Rudolph Jones and Corvell Taris Staples were tried before the same jury and found guilty as charged of one count of robbery. (Pen. Code, § 211; case No. FSB803385.)*fn1 The jury found that defendants committed the robbery in an inhabited dwelling and in concert with at least two others (§ 213, subd. (a)(1)(A)), for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that Jones personally used a firearm (§ 12022.53, subd. (b)). As to Staples, the jury found a principal personally used a firearm. (§ 12022.53, subd. (e)(1).)
The evidence showed that the robbery was committed on August 7, 2008. In June 2008, Jones was placed on probation after pleading guilty to possessing cocaine base and admitting a gang allegation, and the terms of his probation required him not to commit any additional crimes. Following the close of the evidence in the robbery trial, the trial court revoked Jones's probation. After the jury returned its verdicts and findings, the court sentenced Jones to 29 years in prison. Staples was sentenced to 13 years. Jones was 19 years old at the time of the robbery. Staples was 18 years old.
Defendants appeal and join each other's contentions. Jones clams he was denied his due process right to a fair trial because the trial court denied two mistrial motions he made during jury deliberations, based on two unrelated incidents of juror misconduct involving Juror Nos. 5 and 2, respectively. Staples claims the prosecution's expert gang testimony violated his Sixth Amendment right to confrontation because it was based, in part, on testimonial materials and statements of law enforcement officers and other gang members who did not testify at trial and whom he did not have a prior opportunity to cross-examine. Staples further claims his due process rights were violated because the trial court's oral instructions to the jury were not transcribed, precluding meaningful appellate review. We find these claims without merit and affirm the judgments.
II. THE EVIDENCE PRESENTED AT TRIAL
On August 7, 2008, M.J., her four-year-old son, and her boyfriend L.B. were living in a two-bedroom apartment at the Park Mountain View apartment complex in San Bernardino. Around 9:15 p.m., M.J. and her son were asleep in one of the bedrooms, and L.B. was alone in the living room when he heard a knock at the door. L.B. looked through the peephole, saw two young Black males, and opened the door. One of the males was shorter than the other. Both were wearing black "hoodies" and jeans, and both appeared to be approximately 17 years old. The shorter of the two males asked L.B. whether he knew anyone who sold "weed," and both of them "flashed a little money . . . a couple hundred dollars each." L.B. told them they had the wrong apartment and closed the door. L.B. had never seen the males before.
Five to ten minutes later, L.B. heard another knock on the door. He looked through the peephole, saw the same short male he had just spoken to, and again opened the door. This time the short male was alone and asked L.B. whether he was "sure" he did not know where the male could get any "weed." Again, L.B. answered "no." The short male then pulled out a black semiautomatic handgun, pointed it at L.B.'s face, and told him to "[b]ack up." At that point, five or six other Black males ran up to the door, and all of them were pointing guns at L.B. Like the short male, the other males were wearing black "hoodies," and one or two were also wearing bandanas. L.B. estimated that all the males were between the ages of 17 and 21. L.B. was unarmed and wearing only shorts.
The short male told L.B. to "[g]ive us money." With five guns pointing at him, L.B. walked backward into the apartment and into the bedroom where M.J. and her son were sleeping. Most of the five armed males followed L.B. into the bedroom while one or two stood in the bedroom doorway. L.B. heard a sixth person in the other bedroom and a seventh rummaging around in the kitchen. L.B. kept telling the males he had "kids in the house," he did not have any money or "weed," and to take anything they wanted.
M.J. awoke and saw five Black males standing in her bedroom, all between the ages of 16 and 21, all wearing black shirts and black pants, and all pointing handguns at her and L.B. She saw that two taller males were standing in the doorway, and both had bandanas covering their mouths and hoods pulled over their heads. All five males were yelling at M.J. and L.B. to give them money while her son was still asleep in the bed. The two taller males then pulled their bandanas off their lower faces. One of the other males took M.J.'s wallet out of her purse and also grabbed L.B.'s cell phone. All of the males then ran out of the apartment.
M.J. and L.B. later discovered that, in addition to taking M.J.'s wallet and L.B.'s cell phone, the robbers took their Xbox game, game controller, video games, and DVDs. M.J. had $750 in her wallet and was planning to use the money to pay the rent on the apartment. The robbers also took M.J.'s car keys from the top of the refrigerator and stole her 2007 red Toyota Corolla.
M.J. called 911, and Deputy Nathan Gastineau arrived at the apartment shortly after 9:30 p.m. and spoke with M.J. and L.B. Deputy Mike Richardson arrived a short time later and assisted Deputy Gastineau. M.J. and L.B. were both shaken. Their television set was upside down in the living room, and others items had been tossed around in the apartment. No suspects were found that night.
M.J.'s crashed Corolla was recovered on August 11 about a mile away from her apartment. On August 14, officers apprehended Jones and Staples at a vacant house in Highland.
M.J. admitted her brother and several others were smoking marijuana in her apartment around 8:30 p.m., shortly before the robbery. M.J. did not believe there were any drugs in her apartment at the time of the robbery, however. M.J. had a prior felony conviction for possession of a controlled substance and for possessing drugs while with a child.
B. The Identification Evidence
On August 8, Deputy Richardson responded to a disturbance at the same apartment complex where M.J. and L.B. were robbed. As soon as he pulled up, he saw a pile of men's clothing on the sidewalk and in the street. He searched through the clothes, found identification belonging to Jones, and gave Jones's identification to Deputy Gastineau.
Jones's sister lived in the apartment complex, and Deputy Gastineau spoke to her on August 8. Six months earlier, in February 2008, Deputy Gastineau spoke with Jones after stopping a vehicle in which Jones was a passenger near the apartment complex. At the time, Jones lived in his sister's apartment and admitted being a member of the Hoover Crips gang.
Deputy Gastineau prepared a photographic lineup, including Jones's photograph, and showed the lineup separately to L.B. and M.J. on August 8. M.J. looked at the lineup for around 10 seconds, pointed to Jones's photograph, and said, "That's the guy." She also said she had seen Jones around her apartment complex before the robbery. At trial, M.J. testified she was "[a] hundred percent" sure Jones was one of the robbers. On cross-examination, however, M.J. admitted she told the 911 dispatcher she had never seen any of the robbers before, but she explained she was trying not to become hysterical after the robbery and she did not immediately recall seeing Jones earlier that day. Deputy Gastineau testified that M.J. initially told him she was unable to see what any of the robbers looked like.
L.B. looked at the photographic lineup, including Jones's photograph, for 10 to 15 seconds, pointed to Jones's photograph, and said, "That's him." At trial, however, L.B. did not identify Jones as one of the robbers, and explained he identified Jones to Deputy Gastineau as someone he had seen riding a bicycle around the apartment complex. Deputy Gastineau disputed L.B.'s testimony. According to Deputy Gastineau, L.B. identified Jones to him as one of the robbers and did not say he merely recognized Jones as someone he had seen in the area.
After the robbers left their apartment, L.B. and M.J. waited a few minutes, then went outside to look around. M.J. testified she saw Staples standing around 15 feet away from her apartment. He turned around and quickly walked away. She had seen Staples on two prior occasions at the apartment next door and believed he lived there. She had never spoken to him. She also saw two of the robbers hopping over a gate and running away, and she heard the sound of her Corolla starting.
Detective Matthew Peterson prepared a six-pack photographic lineup, including Staples's photograph, and showed the lineup to M.J. on August 19.*fn2 M.J. identified Staples as the person she saw outside her apartment after the robbery. On a scale of 1 to 10 with 10 being the most certain, she said her certainty of Staples's identity was a 10. At trial, she was "90 percent" certain Staples was the person she saw outside her apartment after the robbery.
C. The Prosecution's Expert Gang Testimony
San Bernardino County Sheriff's Deputy Kevin Snyder testified as a gang expert for the prosecution. He was a member of the California Gang Investigators Association and regularly spoke with gang investigators throughout California and the United States. He was familiar with the gang known as the "Hoover Crips," more recently known as the "Hoover Criminals," based on his personal contacts with its members and information he had received from law enforcement officers in Los Angeles where the gang originated. The gang was so large it had broken into several subsets, and many of its members had moved to San Bernardino and Riverside Counties. Deputy Snyder considered the Hoover Criminals to be a criminal street gang, based on its primary activities and predicate offenses its members had committed.
Deputy Snyder further testified that gang cards are identification cards law enforcement officers use to document information on gang members. On April 8, 2008, Deputy Snyder was called to a scene where Staples was putting Hoover Criminals gang graffiti on a wall. At the time of the encounter, Staples admitted to Deputy Snyder that he was an active member of the Hoover Criminals and had been "jumped in" to the gang five years earlier in Los Angeles. Deputy Snyder also saw that Staples was dressed in orange and black, the colors of the 74 Street Hoover Criminals, and had multiple gang tattoos. On April 8, Deputy Snyder completed a gang card on Staples, documenting this information.
Eight days later, on April 16, Deputy Snyder spoke with both Jones and Staples at the Park Mountain View Apartments in San Bernardino. They told Deputy Snyder they were related, and Deputy Snyder believed they were cousins. Jones admitted he was a member of the "Five Two," a subset of the Hoover Criminals. He also told Deputy Snyder he was 18 years old, had started in the gang at age 12 while living near 52nd Street in Los Angeles, and had been in Highland for six months. Deputy Snyder's supervisor completed a gang card for Jones based on Jones's admissions to and contacts with Deputy Snyder during their April 16 encounter.
On April 30, San Bernardino police officers completed gang cards on both Jones and Staples. The gang card on Jones indicated that officers had contact information for him in the City of San Bernardino several miles from the Park Mountain View Apartments, and that Jones lived at the apartment complex. The same card indicated that Jones wore clothing associated with the Hoover Criminals, and his street moniker was "Baby Rat." The April 30 gang card on Staples indicated he also wore clothing associated with the gang, and his moniker was "June Bug."
Deputy Snyder opined that Jones and Staples were active member of the Hoover Criminals at the time of the robbery. He based his opinion on his personal contacts with both men, their admissions to him that they were members of the gang, the gang cards, the areas in which they had been located, and their gang tattoos. Deputy Snyder said his opinion was also supported by Jones's February 2008 admission to Deputy Gastineau that he was a member of the gang. Deputy Snyder also opined that the home invasion robbery was committed for the benefit of the gang. He noted the ...