IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
September 7, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICKY DEVON TAYLOR V ET AL., DEFENDANTS AND APPELLANTS.
Super. Ct. No. 06F10601
The opinion of the court was delivered by: Butz ,j.
P. v. Taylor 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendants Ricky Devon Taylor V and Rodney Charles Buckley, Jr., each of two counts of attempted murder, and found true the gang enhancement that these offenses were committed in association with a criminal street gang. (Pen. Code, §§ 664/187, 186.22, subd. (b)(1).)*fn1 Buckley's sentence was further enhanced based on findings that he personally and intentionally discharged a firearm during both attempted murder offenses, causing great bodily injury. (§ 12022.53, subd. (d); two enhancements, each 25 years to life). These two firearm enhancements were also applied to Taylor based on his status as a principal in the attempted murders, his gang enhancement finding, and Buckley's (i.e., another principal's) firearm discharges. (§ 12022.53, subd. (e)(1)).*fn2
On appeal, the two defendants principally contend the evidence is insufficient to show a "criminal street gang," as required to sustain the gang enhancement. We agree and shall reverse the gang enhancement for both defendants. We reject, however, several contentions from Buckley, which allege, essentially, that his convictions should be reversed because he was prejudiced by the gang evidence in this case.*fn3
Our resolution results in a reduction in Buckley's aggregate (determinate and indeterminate) sentence from 72 years eight months to 59 years four months; and a reduction in Taylor's aggregate sentence from 61 years four months to 11 years four months. This discrepancy in the sentence reductions results from the following: (1) Buckley's sentence under the gang enhancement (13 years four months; § 186.22, subd. (b)) is vacated, but his enhancement sentence of 50 years to life remains intact on the two enhancements for personally and intentionally discharging a firearm, causing great bodily injury, during both attempted murder offenses (i.e., each of these two enhancements is 25 years to life; § 12022.53, subd. (d)); (2) Taylor's sentence of 50 years to life on these two enhancements is vacated because these enhancements were based vicariously on his gang enhancement finding, a finding we reverse (§ 12022.53, subd. (e)(1)). We also correct a clerical error in Taylor's abstract of judgment concerning his convictions. As so modified, we shall affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Before the Shooting
On November 30, 2006, then-17-year-old Taylor lived in an apartment with his girlfriend, Larryssa Way, and another couple, Sara Scott and Rodney Alexander.
Three or four days before, Scott had written the name "Gerald" on Way's back as a joke. Gerald was Way's boyfriend prior to Taylor. This inscription did not sit well with Taylor, and various verbal and physical confrontations ensued between Taylor and Scott/Alexander on November 30.
These confrontations prompted Scott and Alexander to leave the apartment and go to the home of Scott's father, Alfred O'Neal, one of the two victims here. As she was leaving the apartment, Scott gathered some belongings, including a nine-millimeter handgun, which O'Neal had given her because of rapes in the area; Way yelled, "No, Sara [Scott], no guns, no guns," and that set Taylor off further. Taylor yelled to the departing Scott and Alexander, "nigger, it's gun play," and apparently added, "The North Highlands Gangster Crips will all be up in here."
Scott told her father, O'Neal, what had happened at the apartment. Alberto Richard, Scott's "cousin" and the second victim here, was at O'Neal's too.
Way later called Scott at O'Neal's, stating that Scott needed to return to the apartment because Taylor was messing up her property. (At trial, Scott identified a picture of her TV set, as well as a poster--each bearing the inscription "My nigga's gonna kill you"--which were not so adorned before she and Alexander had left the apartment.)
Richard, who knew Taylor, offered to go to the apartment and get Scott's things. (Richard identified himself and Taylor as North Highlands Gangster Crip gang members.)
As O'Neal and Richard were about to leave for the apartment in O'Neal's van, Scott asked O'Neal if he wanted the nine-millimeter handgun. O'Neal initially declined, but then changed his mind and took the weapon.
The Gun Battle
At the apartment, Richard knocked on the door while O'Neal waited in the van. Taylor greeted Richard at gunpoint with a handgun. Buckley, holding a pistol-grip shotgun nearby, then pat-searched the unarmed Richard. Richard was taken aback--wondering why someone with whom he had just had Thanksgiving dinner (Taylor) was holding a gun on him. (That dinner, in fact, had been at O'Neal's house, with Way and Taylor, Scott and Alexander, Richard and perhaps Buckley, attending.)
After Richard explained his presence and stated that his uncle was outside waiting in the van, nerves soothed and guns were withdrawn.
A few minutes later, however, another knock was heard on the door and anxiety gripped defendants anew. Richard said it was probably O'Neal, which it was. While waiting in the van, O'Neal had received a call from Way who said that Taylor and Richard were arguing.
Defendants "greeted" O'Neal in the same manner they had Richard, with guns drawn. O'Neal stated that Taylor added the salutation, "North Highlands Gangster Crip," and that Taylor also said "he'd lay [O'Neal] down." O'Neal was aghast, having just had Taylor over for dinner. But O'Neal was not as solicitous as Richard. O'Neal refused to be searched, grabbed the barrel of Taylor's gun, and the two of them began to wrestle (O'Neal was armed with the nine-millimeter).
According to Richard, Taylor broke free from O'Neal and then began firing at O'Neal from the kitchen. O'Neal returned the fire. At this point, Buckley began firing at O'Neal. When Richard noticed that Buckley had a clear shot at O'Neal, he stepped in between the two of them, saying "no" and holding his hands up in a "do not shoot" pose. Buckley shot Richard in the chest. Richard heard two distinct shots from the shotgun; a third shot attempt malfunctioned.
According to O'Neal, as he and Taylor began to wrestle, he (O'Neal) heard a shotgun blast and heard Richard say "I'm shot." As O'Neal and Taylor struggled, O'Neal heard another "boom" and felt a shotgun blast hit him in his left flank.
O'Neal and Richard managed to escape the apartment through a flurry of bullets unleashed by O'Neal.
O'Neal's shotgun injury left him with a limp. Richard's shotgun injuries were very serious, threatening his heart. Buckley sustained gunshot wounds to his left arm and chest, and Taylor was hit as well.
A gang detective, Jamin Martinez, testified as an expert on the issue of the gang enhancement. We will set forth the pertinent parts of his testimony when we discuss the issue of this enhancement's evidentiary sufficiency.
Buckley rested without presenting witnesses.
The highlight of Taylor's case was a police officer who interviewed O'Neal in the hospital shortly after the shooting. O'Neal did not mention to the officer that Taylor had made any gang-related statements; or that the two defendants were wearing blue bandannas or rags on their faces, as O'Neal had testified to at trial--in a manner inconsistent with Richard.
Prosecution and Defense Theories of the Case
The prosecution's theory was that this was a gang-related confrontation and shooting to avenge the disrespect shown to Taylor by Scott's inscription of "Gerald" on the back of Taylor's girlfriend, Way.
The defense theory was self-defense and defense of another, in which the shooting arose merely out of a personal dispute among roommates and was initiated by O'Neal's pistol-packing support for his daughter, Scott.
I. The Evidence Is Insufficient to Show a "Criminal Street Gang" Required for the Gang Enhancement
Defendants contend there is insufficient evidence of the "primary activities" element to show a "criminal street gang," as the gang enhancement requires. We agree and shall reverse this enhancement as to both defendants. As we will explain, while the prosecution's gang expert mentioned the primary activities of "The Crips," he did not set forth (1) the primary activities of the North Highlands Gangster Crips (NHGC), or (2) any legally sufficient connection between "The Crips" and the NHGC.
The California Street Terrorism Enforcement and Prevention Act (the STEP Act; § 186.20 et seq.) provides, in part, for enhanced punishment for any felony committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1), italics added.) This particular statute is known in the legal parlance as "the gang enhancement."
"Criminal street gang" is the linchpin for the gang enhancement, indeed for the STEP Act generally. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000.) "To prove the existence of a criminal street gang, 'the prosecution must prove that the [group at issue] (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal [offenses] enumerated in the [STEP Act]; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the[se] enumerated offenses . . . during the statutorily defined period.'" (In re Jose P. (2003) 106 Cal.App.4th 458, 466-467 (Jose P.), some italics omitted, our italics added, quoting People v. Gardeley (1996) 14 Cal.4th 605, 617; see § 186.22, subd. (f).)
At issue here is the second factor--the primary activities element.
We set forth the entire pertinent evidence on this element, which came from the testimony of the prosecution's gang expert, gang detective Martinez:
"[PROSECUTOR]: Q. [Detective] Martinez, in your opinion, are the Crips a gang within the meaning of the Penal Code section [setting forth the gang enhancement]?
"[DETECTIVE MARTINEZ]: A. Yes, sir. [¶] . . . [¶]
"Q. If you could approximate for us, just maybe pinpoint the [NHGC], how many members would you say that that gang has?
"A. Conservative estimation of what we would call active members is with twenty-five. . . .
"Q. The Crips, is that a group that's got a common sign, symbol, color?
"A. Yes, sir. [¶] . . . [¶] Common sign for the Crips, I was trying to do that hand sign the other day. It's that C that I have a real hard time with. In particular, our North Highlands sect, they use something like this, it's known as the A Street, trying to make an A. And then their common color they are affiliated with typically is blue. [¶] . . . [¶]
"Q. Do the Crips engage in a pattern of criminal activity?
"A. Yes, sir.
"Q. In your opinion, what are the primary activities of the Crips criminal street gang?
"A. Crimes ranging from homicide, home invasion, robbery, burglary, carjacking, prostitution, drug dealing.
"Q. In your opinion, has this gang engaged in a pattern of criminal gang activity?
"A. Yes, sir.
"Q. Can you tell us which ones?
"A. Well, specifically we have had a lot of narcotic sales. Robbery is fairly common and narcotic sales are common as well." Martinez went on to describe a specific arrest of an NHGC member for possessing methamphetamine for sale in January 2006; Martinez also relied on the present offenses to show an NHGC pattern of criminal gang activity.
As for the entire pertinent evidence on the connection between the Crips and the NHGC, Martinez was asked and answered as follows:
"[TAYLOR'S DEFENSE COUNSEL]: Q. . . . Would it be fair to say that there truly is no such thing as a Crip street gang, but that it is, in fact, divided into neighborhoods or subsets?
"A. I think probably in my view the more appropriate way to determine it would be it's like a piece of pie, and you take one pie and we call that the Crip pie. As you slice that pie up, there [are] different gangs within that pie.
"Q. General organization between your different pieces of pie?
"A. Depends on which pieces of pie we are referring to, some are and some are not, absolutely.
"Q. Let's talk specifically about the North Highlands--what you decided, [NHGC].
"A. Yes, sir.
"Q. North Highlands, it is an area or city?
"A. Yes, it is.
"Q. Or county, actually. And so is it neighborhood oriented, these people have a geography about themselves?
"A. NHGC typically represents the northern part of our county, and that can also include areas that are not in North Highlands. What also makes--it is not unique, but NHGC is also part of what's called Garden Block Crips in South Sac[ramento]. So they are not necessarily, you know, working together day-to-day and going to meet each other every day, but they are a large Crip organization within the County and City of Sacramento.
"Q. So you are saying that the [NHGC] are part of your Garden Block Crips?
"A. I'm not saying they are part of. I'm suggesting to you that they are--they have a common cause. In other words, they rival predominantly Blood gang members. They can go--our North Highlands gangsters can go down to South Sac and our South Sac guys can go up to North Sac. There is not an issue there. It is not uncommon for us to contact gang members of different Crip sects together."
Accordingly, gang expert Martinez mentioned only the primary activities of the Crips criminal street gang; he never set forth the primary activities of the NHGC.
The question arises as to whether the primary activities of the Crips can be ascribed to the NHGC to satisfy this gang enhancement element on the record before us. Our answer is "No."
People v. Williams (2008) 167 Cal.App.4th 983 (Williams) sets forth the legal framework for deciding this question. Williams "address[ed] the relationship that must exist before a smaller group can be considered part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang." (Id. at p. 985.) Williams concluded: "[S]omething more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a [smaller] group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization." (Id. at p. 988.)
Expert Martinez disputed defense counsel's assertion that "there truly is no such thing as a Crip street gang" by likening the Crips to a pie, with the pie slices being the "different gangs within that pie." Then defense counsel asked Martinez about the "[g]eneral organization between your different pieces of pie?" Martinez replied: "Depends on which pieces of pie we are referring to, some are and some are not, absolutely." Martinez then noted a connection between the NHGC and another Crips subset in Sacramento, the Garden Block Crips, consisting of "a common cause" of rivalry with Blood gang members.
Martinez's testimony, however, failed to set forth any "sort of collaborative activities or collective organizational structure" between the Crips criminal street gang and the NHGC. (Williams, supra, 167 Cal.App.4th at p. 988.) In line with the brief questions posed to him, Martinez stated that the "[g]eneral organization" of the different pieces of the Crips "pie," "[d]epends on which pieces of pie we are referring to, some are and some are not, absolutely." Martinez, in short, did not provide the filling or the crust between the Crips and the NHGC; the common name fragment and gang color will not cut it under Williams.
Williams recognized that "[e]vidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization." (Williams, supra, 167 Cal.App.4th at p. 987.) But that evidence must be specific and complete as to one and/or the other. The prosecution here, as Taylor points out, "conflated" the alleged larger and smaller gangs, and came up short on both ends concerning the primary activities element: Martinez mentioned the primary activities of the Crips, but was not asked about the primary activities of the NHGC; and, pursuant to the cryptic questions asked of him, Martinez did not link the Crips with the NHGC, providing only a common name fragment and color.
The insufficient evidence here can be contrasted with the evidence found sufficient in the following two decisions: People v. Ortega (2006) 145 Cal.App.4th 1344 and Jose P., supra, 106 Cal.App.4th 458.
In Ortega, we rejected the assertion that the prosecution had to prove precisely which Norteno subset was involved, noting that the evidence was sufficient that the larger group, the Nortenos, was a criminal street gang in which the defendant actively participated. (People v. Ortega, supra, 145 Cal.App.4th at pp. 1356-1357.)
In Jose P., "the gang expert testified that the Norteno street gang was an ongoing organization having around 600 members or associates in Salinas; that there were separate cliques or factions within the larger Norteno gang; that the two gangs at issue . . . were such subgroups; that the two subgroups were loyal to one another and to the larger Norteno gang; and that all Norteno gangs followed the same bylaws as the Norteno prison gangs." (Williams, supra, 167 Cal.App.4th at pp. 987-988, summarizing Jose P., supra, 106 Cal.App.4th at p. 463.)
Finally, the evidence here as to primary activities has parallels to that deemed insufficient in In re Alexander L. (2007) 149 Cal.App.4th 605. There, the gang expert's "entire testimony" on the purported gang's primary activities was that he "'kn[e]w'" the gang had been involved in certain crimes enumerated in the gang enhancement statute. (Id. at p. 611.) Alexander L. then concluded: "No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the gang expert] had obtained the information. [The gang expert] did not directly testify that criminal activities constituted [the purported gang's] primary activities." (Id. at pp. 611-612.) Martinez here did set forth the bases of his gang knowledge. But, in line with the abbreviated nature of the questions put to him, Martinez did not provide any specifics regarding the circumstances of the crimes comprising the Crips' primary activities, and he did not testify about the NHGC's primary activities.
We conclude there is insufficient evidence of the "primary activities" element to show a "criminal street gang," as the gang enhancement requires. Consequently, that enhancement must be reversed as to both defendants.*fn4
II. Refusal to Bifurcate Gang Enhancement
Buckley contends the trial court denied him due process by refusing to bifurcate the gang enhancement from the attempted murder charges. We disagree.
Our standard of review is abuse of discretion. (§ 954; People v. Hernandez (2004) 33 Cal.4th 1040, 1044.) The trial court did not abuse its discretion here.
It is true there was no evidence that Buckley was a gang member. But the gang enhancement statute does not require such membership. (§ 186.22, subd. (b)(1); see People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
There was sufficient gang evidence for the prosecution to charge the gang enhancement against Buckley, and to make the theory of its case gang based. Furthermore, as the trial court reasoned in denying bifurcation, the gang issue affected "both the thoughts and the actions of all the participants involved" in the attempted murder offenses; the court provided the following examples: Why did O'Neal arm himself? Why did Taylor refer to his gang affiliation in the midst of the incident? How did the alleged victims' knowledge of Taylor's gang participation affect their responses during the incident? And, why did Richard deny knowing the identity of the assailants in his initial statements to the police? Without the gang evidence, the trial court observed, "the trier of fact [would be] blinded . . . to possible key motivations on the part of both the defendants and the alleged victims . . . ." And, as the trial court noted, the jury would be instructed specifically on the limited purposes of the gang evidence and how to handle it.
In short, the gang evidence here was tied to the evidence of the substantive offenses. The trial court did not abuse its discretion in refusing to bifurcate the gang enhancement.
III. Refusal to Sever Defendants' Cases
Buckley contends the trial court erred in refusing to sever his case from Taylor's. Buckley argues he was improperly subjected to "guilt by association" with Taylor, even though he (Buckley) was not a gang member. We disagree.
Our standard of review is, once again, abuse of discretion. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41 (Coffman).) And, once again, we find the trial court did not so act.
Section 1098 expresses a legislative preference for jointly trying defendants jointly charged with a crime. (Coffman, supra, 34 Cal.4th at p. 40.) When defendants are charged with "'common crimes involving common events and victims,'" as here, a "'"classic case"'" for joint trial is presented. (Coffman, at p. 40.)
Buckley was legitimately charged with the same crimes and gang enhancement as Taylor. Indeed, the evidence showed that Buckley was the actual shooter in the two charged attempted murders, and that Buckley and Taylor acted in a coordinated fashion. As noted in the preceding part of this opinion, Buckley need not have been a gang member to be liable for the gang enhancement; and the jury would be instructed as to the limited purposes of the gang evidence. (§ 186.22, subd. (b)(1).)
Coupling these observations with the preceding part on bifurcation, we conclude the trial court did not abuse its discretion in refusing to sever defendants' cases for trial.
IV. Further Instruction on Association with Gang
Buckley contends the trial court improperly responded to a jury question concerning the meaning of the phrase "in association with a criminal street gang" in the instruction, "Felony Committed for Benefit of Criminal Street Gang." (CALCRIM No. 1401.) The trial court informed the jury that "association" had its ordinary, everyday meaning.
Buckley argues that the trial court's response reinforced the improper concept of "guilt by association," which the jury improperly could believe could be satisfied by Buckley's "mere presence" with a gang member.
To the extent Buckley's contention concerns the gang enhancement, the contention is moot in light of our reversal of that enhancement.
To the extent Buckley's contention implicates, as he also argues, defendants' theory of the charged attempted murders--i.e., the shooting was the result of a personal dispute between roommates rather than a gang-related matter--we reject it.
The instruction at issue emphasized to the jury that Buckley had to commit the attempted murders not only "in association with a criminal street gang," but also with an intent "to assist, further, or promote criminal conduct by gang members." (CALCRIM No. 1401.) This is more than merely "guilt by association"; it is more than "mere presence." Furthermore, as for "mere presence," the evidence showed that it was Buckley who shot Richard and then shot O'Neal with two close-range blasts from a pistol-grip shotgun, and the only reason Buckley did not level more blasts was because the gun malfunctioned. "Mere presence" is a bit of an understatement for such behavior.
V. Prosecutor Vouching for O'Neal
Defendants contend the prosecutor committed misconduct in closing argument by vouching for O'Neal's veracity as follows:
"One question, like I said this morning, that is not before you, is whether or not Mr. O'Neal is going to get prosecuted. The likely answer to that is 'no.' Would a jury convict him and what would they convict him of? [¶] So, is Mr. O'Neal going to get prosecuted? Probably not, just tell you that right now."
Defendants rely on cases in which the prosecutor argued something like, "'he would not prosecute any man he did not believe to be guilty.'" (People v. Kirkes (1952) 39 Cal.2d 719, 723-724 (Kirkes); People v. Edgar (1917) 34 Cal.App. 459, 467-468.)
We reject defendants' contention for three reasons.
First, defendants failed to object to the challenged argument, which they were required to do to make this misconduct claim. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Second, defendants have taken the prosecutor's remarks out of context. Those remarks were made in the context of the following summation: "Something else to throw out there that you might be wrestling with here, you might not like what Alfred O'Neal did in this case. That's okay. This might be the one case where nobody is entitled to self-defense. It could be that case, but that does not take away from the crux of the case. Were the defendants legally justified in shooting Alfred O'Neal and [Richard]? So if nobody is entitled to self-defense, then the answer to that is 'no, you guys weren't entitled to do that.'"
And, third, the prosecutor's "hedging" about the prosecution of O'Neal was not as egregious as the definitive personal vouching in Kirkes and Edgar. (See Kirkes, supra, 39 Cal.2d at pp. 723-724.)
Alternatively, defendants claim their counsel rendered ineffective assistance by failing to object to the challenged prosecutorial remarks. To succeed with this claim, however, defendants must have been prejudiced. (People v. Anderson (2001) 25 Cal.4th 543, 569.) Coupling the reasons we just noted with the evidence in this case, we find no prejudice.
VI. Cruel and Unusual Punishment
In light of our reduction of Taylor's sentence, we need not address his claim that his original sentence was the functional equivalent of life without parole and therefore unconstitutionally cruel and unusual for a juvenile who did not commit a homicide. (See Graham v. Florida (2010) 560 U.S. ___ [176 L.Ed.2d 825].) Likewise, we do not address his contention that his trial counsel was ineffective at sentencing for failing to object on this ground.
VII. Cumulative Error
Finally, we reject Buckley's claim of cumulative error, in light of what we have said regarding his claims of individual error.
The criminal street gang enhancement as to each defendant is reversed. (§ 186.22, subd. (b)(1).) As a result of these reversals: (1) defendant Buckley's aggregate sentence on that enhancement of 13 years four months is vacated, reducing his determinate sentence to nine years four months (Buckley's aggregate indeterminate sentence of 50 years to life under § 12022.53, subd. (d) remains intact); and (2) defendant Taylor's aggregate indeterminate sentence of 50 years to life under section 12022.53, subdivision (e)(1), is vacated (Taylor's aggregate determinate sentence of 11 years four months remains intact). We also correct defendant Taylor's determinate abstract of judgment to reflect that he was convicted of two counts of attempted murder (§ 664/187) rather than two counts of assault with a firearm (§ 245, subd. (a)(2)). As so modified, the judgments are affirmed. The trial court is directed to prepare an amended abstract of judgment as to each defendant reflecting these modifications, and to forward certified copies
of those abstracts to the Department of Corrections and Rehabilitation.*fn5
We concur: ROBIE , Acting P.J. MURRAY,J.