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Ruiz v. Gipson

United States District Court, E.D. California

March 19, 2017

CARLOS RUIZ, Petitioner,
v.
CONNIE GIPSON, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Petitioner is currently serving a life term in state prison for convictions for robbery, carjacking and criminal street gang activity. In this action, Petitioner claims: 1) The conviction for criminal street gang activity is unsupported by sufficient evidence; 2) The trial court abused its discretion in denying motions to bifurcate the trial on the gang issues; 3) The trial court erred by allowing the use of case- and defendant-specific hypotheticals; 4) The trial court erred in defining the immediate presence element of carjacking, as distinct from robbery; 5) The trial court erred in failing to define the technical terminology: “in association with a criminal street gang”; 6) The instructions on gang evidence and enhancements were erroneous; 7) The trial court erred in instructing the jury with CALCRIM No. 373; 8) The trial court erred in instructing the jury with CALCRIM No. 376; 9) The trial court erred in denying Petitioner's motion to dismiss the case based on statutory speedy trial violations; 10) The cumulative effect of the errors denied Petitioner of a fair trial; and 11) The trial court erred in calculating Petitioner's presentence credits. As discussed below, the Court finds no merit to the claims and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         Petitioner was convicted in the Kern County Superior Court on August 10, 2010, of carjacking (Cal. Penal Code § 215), robbery (Cal. Penal Code § 212.5(c)), and street terrorism (Cal. Penal Code § 186.22(a)). People v. Ruiz, 2012 WL 4076669, *1 (Cal.Ct.App. 2012). The jury also found true enhancements that Petitioner personally used a firearm in the commission of the offenses. Id. He was sentenced to a term of 13 years plus 15 years-to-life. Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA affirmed the judgment on September 17, 2012. Id. Petitioner then filed a petition for review in the California Supreme Court. The petition was summarily denied on December 19, 2012. (Pet. at 2.)

         On February 20, 2014, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. No. 1). Because two of the claims in the petition remained unexhausted, Petitioner requested a stay of the proceedings. (Doc. No. 2.) The Court dismissed the two claims (12 and 13) from the petition and granted the stay. (Doc. No. 5.) Petitioner thereafter failed to timely file status reports, and because of this the Court lifted the stay and directed Respondent to file a response. (Doc. No. 17.) Respondent filed a perfunctory answer on June 14, 2016. (Doc. No. 20). Petitioner did not file a traverse.

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

Defendant and Harris get a ride
Ashli Winters and Patrick Harris were close friends. Winters testified that on March 4, 2009, sometime between 2:30 p.m. and 2:36 p.m., Winters dropped off Harris and defendant, who was his friend, in the area of Wilkins Street, near Kincaid and South Kings Streets in Bakersfield. [N.3] This location was a few blocks from Key Barber Shop. Defendant and Harris got out of Winters's car together. They were both wearing black clothes. Defendant wore a black “hoodie.” Harris wore a black sweater or zipped-up sweatshirt with a hood. After Winters dropped them off, she drove away from the area and went to a friend's house.
[N.3] Winters testified at both the preliminary hearing and trial under a grant of immunity.
Key Barber Shop
Also on March 4, 2009, Robert Key was working at Key Barber Shop located on East Brundage Lane in Bakersfield. Key had owned and operated his barbershop since 1965, and he had never been robbed. He described his shop as a neighborhood place where people often gathered to visit.
Around 2:30 p.m., Key was cutting the hair of Mackinley Mosley, an investigator for the district attorney's office. Mosley was armed with his service weapon, a .40- caliber Glock handgun, which was in a waistband holster. Mosley had driven his county-issued white Dodge Charger to the barbershop, and parked it behind the business.
There were two other people in the barbershop: Joe McClary, Key's brother-in-law, and Aaron Williams, a retired sergeant from the Los Angeles County Sheriff's Department. Williams still carried law enforcement identification.
The barbershop robberies
As Robert Key cut Mosley's hair, two masked men abruptly entered the barbershop. One man held up a gun, said it was a “‘robbery'” or a “‘stick up, '” and ordered everyone to get on the floor. One man was taller than the other. The taller man displayed the gun and gave the orders. He was dressed in grey and black with a hood that covered his head and part of his face. He also wore a mask which covered his face from the eyes down. The shorter man wore a hooded sweatshirt and was completely cloaked in dark clothing with a ski mask over his face, but his eyes were visible. Williams testified the men seemed to be wearing oversized clothing to disguise their appearances.
Key and his three customers did not immediately react because they did not realize what was going on. The taller man pointed the gun at Williams and Mosley, and again told everyone to get down. The taller man grabbed McClary and pushed him to the floor. Williams hesitated and the smaller man repeatedly ordered him to get down. McClary urged Williams to get down. Williams and the other men finally complied.
The taller man ordered everyone to throw their wallets on the floor. One of the suspects picked up the wallets from the floor. Key testified that one of the masked men took $40 or $50 from his cash box. The taller man reached into Key's pocket and took his wallet.
As Mosley got out of the barber chair and onto the floor, the smaller suspect realized Mosley was armed with a weapon and said, “ ‘Oh, he's got a gun, too.' ” The smaller man removed Mosley's service weapon from his waistband. The smaller man thought he was taking Mosley's wallet, but he actually took Mosley's black “flat badge” identification. He told Mosley to remove his jewelry and Mosley complied.
The taller man noticed that McClary was also wearing jewelry and told him to take off the pieces. McClary removed his Movado single-diamond, blackface watch; a gold-nugget/diamond ring; and a gold chain bracelet. McClary had trouble removing a diamond pinky ring from his finger. The taller man pointed his gun at McClary, repeatedly told him not to move, and threatened to “pop” him if he did not hurry and take off the ring. The taller man held the gun at the back of McClary's head and searched his back pocket. McClary was finally able to remove the ring. He placed the jewelry on the floor, and the taller man picked up the pieces.
McClary described the gunman's weapon as a black or dark grey semiautomatic handgun. McClary testified the taller man had a loose bullet in his hand. He dropped it on the floor, by McClary's face, and then picked it up.
The smaller man removed Williams's wallet from his rear pants pocket and took Williams's gold/diamond ring.
The Dodge Charger
After the two suspects had taken money and jewelry from the victims, the taller man yelled out and asked who was driving the Dodge Charger. Mosley responded that the car belonged to him. The taller man said, “‘Give me the keys.'” Mosley threw his keys on the floor. One of the suspects retrieved the keys.
McClary testified that as the two suspects left the barbershop, the taller man said, “‘If anyone stick[s] their head out of the door, we're going to come back and kill everybody.'” The two suspects walked out, and McClary heard a car start and quickly accelerate away from the area.
Defendant and Harris arrive at the apartment
Terrance Ellis's godmother lived in an apartment on Feliz Drive in Bakersfield. [N.4] Ellis testified that defendant used to visit the apartment and play dominoes with him. Ellis, who was 16 years old, knew defendant as “A-Loc” or “Baby A- Loc.” Ellis knew Patrick Harris as “No Sense.” Ellis testified that both defendant and Harris ran with the East Side Crips (ESC).
[N.4] At trial, various witnesses pronounced this area as either “Felix” or “Feliz” Street or Drive. According to the People, the correct identification is Feliz Drive.
Ellis testified that defendant and Harris arrived at his godmother's apartment on a particular afternoon. [N.5] Defendant and Harris had a bag and some wallets. They told Ellis to get rid of the bag. Ellis refused because he did not want to touch the bag. One of the men had a gun under his shirt. At trial, Ellis could not recall which man was armed, but he previously stated that defendant had the gun. Defendant and Harris changed clothes and took off their black shirts.
[N.5] Ellis identified defendant and Harris through separate photographic lineups. He also explained that Harris had a very distinctive tattoo of a dollar sign or something similar over both eyes.
Ellis testified that Harris made a telephone call from the apartment and asked someone for a ride. After defendant and Harris had been at the apartment for about 10 minutes, they left and were picked up in a vehicle.
Winters picks up defendant and Harris
Ashli Winters testified that later in the afternoon, after she had dropped off defendant and Harris, Harris called her and again asked for a ride. Winters drove to Feliz Drive and picked up both defendant and Harris. Harris told her to drive them to a location on Miller Street.
During the drive, Harris produced a sandwich bag from his pants pocket. The bag was full of jewelry, including a gold or silver watch with a black face, a gold “nugget” ring, and a ring resembling a flower.
Winters testified that defendant and Harris discussed the jewelry, and defendant said something like, “[W]e can't take it to a pawn shop, 'cause they're gonna notice it.” (RT 348) Defendant also said, “That was a cop.” Winters did not know what defendant meant.
When Winters arrived at the Miller Street location, defendant and Harris got out of her car and then got into another vehicle. Winters could not see who was in the other car. Winters noticed that Harris was not wearing his black sweatshirt from earlier in the day. [N.6]
[N.6] At trial, Winters extensively testified about why she cooperated with the police. Winters heard on television that she was considered a suspect in the barbershop robbery. Winters went to the police to clear her name. Winters conceded that she initially told the police that she never saw Harris. Winters testified she eventually decided to fully cooperate after the police threatened to take her child away.
The initial dispatch
In the meantime, Mosley called 911 immediately after the two robbery suspects left the barbershop. At approximately 2:37 p.m., the Bakersfield Police Department sent out the first dispatch about the armed robbery, that the suspects fled the scene in a white Dodge Charger, and they had taken a firearm.
At 2:51 p.m., a police officer found Mosley's stolen Dodge Charger near the 800 block of McNew Court. It was parked at the very end of an apartment complex's parking lot. No one was in or around the vehicle. The stolen car was found about one-half mile from the barbershop. It would have taken about one or two minutes for someone to drive there from the barbershop. A black knit cap was under the driver's seat.
At 2:53 p.m., Detectives Dossey and Moore received the dispatch about the discovery of the stolen car. The detectives drove to that location and received information that two suspects had run northbound from McNew Court to the next street, which was Feliz Drive. There was an open walkway that led directly from McNew Court to Feliz Drive.
At 3:30 p.m., the detectives contacted Victoria Campbell, who was sitting in a car parked on Feliz Drive, and asked if she had seen anyone running in the area. Campbell said that she had seen two black males running “‘through here.'” Campbell gestured toward the sidewalk between McNew Court and Feliz Drive. Campbell thought the men looked like black adults and believed they were wearing hooded sweaters. Campbell said the two suspects ran in the direction of the apartment building located at 900 Feliz Drive, directly across the street from her residence. The apartment building was about a mile and one-half from the barbershop.
Search of the Feliz Drive apartment
Detectives Moore and Dossey went to apartment A at 900 Feliz Drive. There were two females, two males, and children inside. The detectives conducted limited protective sweeps for the suspects and weapons. Dossey conducted a protective sweep of the bedroom area and did not find anything.
Detective Moore conducted a protective sweep of the kitchen and laundry room. He opened the dryer door because he had experienced previous searches where suspects had hidden inside the machines. Inside the dryer, he found two dark-colored, hooded sweatshirts which were wet. One sweatshirt had multi-colored stitching.
Moore also found a white plastic shopping bag on top of the washing machine. He opened the bag to determine if the stolen gun was inside. He did not find a gun, but discovered a sheriff's badge, a wallet, a Dodge car key, a handcuff key, and credit cards.
The apartment was subsequently searched pursuant to a warrant, and the officers seized a black-striped, knit ski cap and a pair of black gloves. The white plastic bag contained Key's wallet, Williams's wallet, a deputy sheriff's badge, credit cards, Mosley's wallet and flat badge wallet, binoculars taken from Mosley's car, and Mosley's sunglasses and reading glasses.
Interview with Ashli Winters
On March 5, 2009, Detectives Findley and Miller interviewed Ashli Winters at the police department. Findley testified they never shouted at or threatened her. At the beginning of the interview, Winters said she had seen a news report about the barbershop robbery on television, and she knew the police were looking for her. However, Winters told the detectives that she had been at a friend's house the entire day. Detective Miller told Winters that they believed she was holding back information from the police, she was considered a suspect, and she was believed to have harbored and aided the suspects' escape. Miller told Winters that she could go to jail for that offense, and she could lose custody of her children. Winters became upset, but she was reluctant to get involved and did not want to testify. She indicated that she had a close relationship with Harris.
Detective Findley testified the police had released the names of Patrick Harris and “Carlos Cruz, ” later corrected to “Carlos Ruiz, ” to the media as possible suspects. However, the detectives never gave Winters any information about the suspects' nicknames or the type of property stolen, and this information had not been released to the media. During the interview with Winters, she mentioned “No Sense” and “A-Loc.” She described Harris's hooded sweatshirt. Winters told the detectives that she dropped off defendant and Harris a couple of blocks away from the barbershop, and she told them about the conversation between the two suspects when she later picked them up. Winters revealed the time and location where she picked up the two suspects later that afternoon. Winters volunteered that she knew jewelry had been stolen during the robbery and gave detailed descriptions of some of the pieces.
The black wool cap found under the driver's seat of the stolen car was subsequently analyzed by a criminalist, who determined that it contained the DNA of at least three people: one major DNA contributor and two minor DNA contributors. The criminalist determined defendant was a major contributor to the DNA profile on the cap. The other contributors were not determined. DNA tests were inconclusive as to whether Harris was a contributor. There was a possibility that a female could be a minor contributor.
In April 2009, a few weeks after the robbery, Mosley's handgun was found during a traffic stop of an unrelated vehicle. A male and female were in the car, and the female had some relation to a gang.
TESTIMONY OF THE GANG EXPERT
Bakersfield Police Officer Josh Finney testified as the prosecution's gang expert. He had been with the police department for six years and worked in the gang unit for three and one-half years. He focused most of his attention on the ESC, and had been involved in hundreds of arrests and contacts involving members of the ESC. He had testified as a gang expert more than 10 times and over half of those cases involved the ESC.
The East Side Crips
Finney testified the ESC was a criminal street gang in Bakersfield and had hundreds of members. The ESC claimed royal blue and used the letters “E-S-C” as identifying marks. Finney explained that within the ESC, there were subsets based on streets or geographic areas within the traditional boundaries of the ESC. The ESC was “like an umbrella with several groups underneath it.” The 11th Street Project Crips, Stroller Boy Crips, and Lakeview Gangster Crips were subsets of the ESC.
Finney explained that the ESC's traditional territory included Key Barbershop, McNew Court, and the apartment building at 900 Feliz Drive, where the robbery proceeds were found. Winters had dropped off defendant and Harris at Miller Street, which was near the border of ESC territory. Feliz Drive was heavily frequented by members of the ESC. There had been shootings at that location, and officers had made “countless arrests” there for narcotics and firearms offenses. The hand sign for the Stroller Boy Crips was an upside down “F, ” representing Feliz.
The 11th Street Project Crips claimed the housing area along East California and East 10th and 11th Streets. That subset used the numbers 11 or 1100 “P-J-C” as identifying marks, and “900” representing the 900 block of Feliz Drive.
Finney testified that based on his investigations, the primary activities of the ESC included murders, assaults with deadly weapons, assaults, robberies, carjackings, and narcotics possession and sales.
Predicate offenses
Finney testified he was familiar with two predicate offenses involving members of the ESC. On May 7, 2006, Meko Seward, a Country Boy Crip, was shot and killed by Anthony Taylor, a member of the ESC, after they had an altercation. Taylor was convicted of murder and attempted murder with gang enhancements and sentenced to life without parole plus 25 years.
Finney testified that on July 11, 2005, Jimmy Gray, an ESC, entered Jalisco Jewelers with three other members of the ESC. They committed an armed robbery and took $13, 000. Gray pleaded guilty to robbery with gang enhancements and was sentenced to 16 years.
Patrick Harris
Officer Finney testified to his opinion that at the time of the barbershop robbery, Patrick Harris was associated with the ESC and the 11th Street Project Crips. Harris's gang moniker was “Lil No Sense.” On May 2, 2008, Finney arrested Harris on a warrant. Harris identified himself as an ESC and said he was from the projects. Harris had the number “1” tattooed under each eye, signifying the 11th Street Project Crips. He had other tattoos on his body indicating membership in the ESC.
Defendant
Finney also testified to his opinion that defendant was an active member of the ESC at the time of the barbershop robbery. Defendant had numerous contacts with the police while with other members of the ESC; he previously admitted to being a member of the ESC; he had distinctive gang tattoos; an older member of the ESC identified defendant as a member; and defendant called other gang members from jail.
Defendant appeared to be Hispanic. Finney explained that while most members of the ESC were African-American, the gang also had members who were Hispanic, Asian, or Caucasian.
Finney testified about numerous contacts between defendant and the officers from the gang unit, which occurred from 2005 to 2008, where defendant was found either in residences or in the presence of other members of the ESC.
On October 29, 2008, Finney and his partner encountered defendant with other known members of the ESC. Defendant admitted to being an active member of the ESC. Defendant said his moniker was “Lil A-Loc, ” and that he received his moniker from Adam “A-Loc” Maya, because both defendant and Maya were Hispanic members of the ESC.
Finney testified defendant also said, “‘Hell, yeah, I'm East Side.'” Defendant was “very open and sounded proud when saying he was an active member” of the ESC. Defendant said he did not grow up within the gang's traditional boundaries, but he went to school with other members of the ESC. Defendant said he was never jumped into the gang, but he just started to hang around with them. Defendant also admitted he was from the 11th Street projects.
In November 2008, Finney and other gang officers were serving an arrest warrant at the residence of another known member of the ESC. Defendant was present with other members of the ESC. Tierre Hester, Sr., an older member of the ESC was also present, and said that everyone at the house was a member of the ESC.
Finney testified that defendant lived nearly five miles outside the gang's traditional boundaries, but he was regularly contacted within the ESC boundaries, and with ESC members, which showed that he went out of his way to associate with the ESC.
Defendant's tattoos included an “E” on his left calf and an “S” on his right calf. He also had a cross with “RIP” and “A Loc” on his left arm, referring to Adam Maya, who had died. Defendant had admitted his gang moniker was “Lil A-Loc, ” which was derived from Maya's nickname. Finney explained that adopting a dead gang member's moniker was something that had to be earned. Maya had been a popular and respected member of the ESC, and a gang member had to “put in work or show his devotion to the gang in order to use that nickname.”
Finney further testified that from April 2009 to June 2009, defendant was in the local jail, and his telephone calls were monitored. During one call, defendant stated, “East Side Crip 1100.” Finney explained that “1100” was one of the symbols used by members of the ESC to refer to the 1100 block of the 11th Street Project Crips. Defendant also said, “East all the time, ” which was a greeting used by ESC members. Defendant said, “Js up, ” which referred to the 11th Street Project Crips, because they wore prominent baseball caps for the Toronto Blue Jays, with the “J” representing the projects. Defendant also talked about “Crippin, ” which Finney explained meant “just living the Crip life style, being a Crip.”
Hypothetical questions [N.7]
[N.7] As we will explain in issues III, IV, and V, post, defendant contends the court should have granted his objections to the nature of the prosecutor's hypothetical questions and Officer Finney's responses.

         The prosecutor asked Officer Finney a series of hypothetical questions:

“An armed robbery of a business. Victims inside the business, there are a few of them, more than two. And two robbers come. They are completely-they have masks on and are covered up so they cannot be otherwise identifiable, armed with a firearm. They take money and jewelry from the victims and keys, take a car, and flee from the site and dump the car, flee to another site, and then move from that sit or are picked up from that site and driven out of the area, and are dropped off at a last location, all of the various locations being with gang territory, and the items being taken include a gun, money, jewelry, car. [¶] Assuming gang culprits are the robbers, how would that benefit, it at all, the gang?”

         Defense counsel objected to an improper hypothetical. The court overruled the objection. Finney responded:

“An armed robbery, as such, would [benefit] the gang in a couple of ways. The first and most obvious would be the items taken, some type of monetary gain, the jewelry, money, and firearm taken. The way I'd best like to describe it is it's not like these guys go back to a hiding spot and divvy up what they have taken amongst all the members of the gang. It benefits the gang in a less obvious way, as far as the gun can be passed around to be used by other members, by these two members receiving some type of income or some monetary gain, they are able to purpose vehicles, buy things for other members of the gang-”

         Defense counsel again objected as speculation. The court overruled the objection. Finney continued:

“A good way to describe it is when a kid is growing up, if they don't receive [an] allowance, they still benefit from their parents having a job. Even though they are not directly receiving money, they still benefit from the parent having a job.”
The court overruled defense counsel's objection for an improper analogy.

         The prosecutor asked Finney to explain the “trickle-down” effect. Finney testified:

“[T]he trickle-down effect is that, by this one gang member receiving money and being able to have a place to live or a vehicle, other members can hang out at their house or stay at their house, drive their vehicle, use their items. That's the trickle-down effect where they are not dividing a couple hundred dollars amongst several hundred members. It's the trickle-down effect in that the other members of the gang benefit from that member gaining that money or that jewelry.”
The court overruled defense counsel's foundational and speculation objections.
The prosecutor asked Finney about the impact of such a crime on the community. Finney explained that no one would be afraid of a gang that did not use guns or weapons. By using a firearm during a robbery and putting everyone on the ground at gunpoint, “citizens in that area are going to be afraid of this gang, because they know that they possess firearms, that they are out there using them. And, also, rival gangs hear of crimes that this gang is committing with the firearms. And that also affects them.”
The prosecutor continued with the hypothetical question:
“Q. Add to the hypothetical ... that the individual robbers do not declare, during the course of the robbery, a membership in the gang. They do not identify themselves verbally or otherwise as to the specific gang member. [¶] Does that militate against it being a gang-related event?
“A. No, absolutely not. There is no need or reason to do it. It's deep within the traditional boundaries and the stronghold of the East Side Crips. It's a given that if it's a gang committing this crime, that it's East Side Crips.”
Defense counsel moved to strike for facts not in evidence. The court overruled the objection.
The prosecutor asked Finney whether his opinion would change if “the individual perpetrators or suspects are not found in possession of stolen property by a law enforcement [officer] when they are contacted by law enforcement.” Finney said no and explained:
“I've witnessed a suspect running from a scene with part of the loss of what they took, and chased that suspect for a block or two. And when I eventually caught him, I found they were no longer in possession. And I could not find what they had taken or where they had thrown it. [¶] So the fact that there was a month that had passed and the suspects were contacted or arrested several states [sic ] away had no bearing on the facts-”
Defense counsel objected for facts not in evidence and prejudice. The court sustained the objection.

         The prosecutor continued with his hypothetical questions and the following exchange ensued:

“Q. As to the last, in reference to almost a month later and suspect contacted several states [sic ] away, who are you referring to?
“[DEFENSE COUNSEL]: Objection. Relevance. Move to strike.
“THE COURT: Sustained.
“Q. Do you know, with regard to the defendant, when-[¶] And just answer ‘yes' or ‘no.' [¶]-[W]hen and where he was arrested?
“[DEFENSE COUNSEL]: Objection. Relevance.
“THE COURT: Overruled.
“[FINNEY]: Yes.
“[Q.] Does that have any significance with regard to your testimony in this regard?
“A. Not really.”

         The prosecutor ended his direct examination questions.

         Cross-examination of expert

On cross-examination, defense counsel elicited testimony from Finney that he did not know whether defendant knew any of the gang members who had been convicted in the predicate offenses. Finney admitted that he did not arrest defendant when he found defendant in the company of other members of the ESC. Finney also admitted that he did not know whether defendant had been jumped into the ESC, and that someone could be an “associate” or “wannabe” just by hanging out with other gang members.
In response to further defense questions, Finney testified that Jonathan Lee was Patrick Harris's half-brother, Lee was a member of the ESC, Harris and Lee committed a robbery/homicide together about six weeks before the robbery of the barbershop, and defendant was not involved in that offense. [N.8]
[N.8] As we will explain in issue I, post, defendant was initially charged in a consolidated information which included murder, burglary, and robbery charges against Harris, Lee, and Landon Reynolds, based on a home invasion which occurred in April 2009. Defendant was never alleged to have participated in the home invasion.
Finney conceded he did not have any personal information as to the application of the “trickle-down” theory to the ESC from the barbershop robberies, and acknowledged that the stolen car was abandoned. Finney also conceded that the jewelry and/or gun taken during the barbershop robbery were not given to other members of the ESC. However, Finney testified that Mosley's gun was later found in a vehicle, and the occupants of the vehicle were connected to the ESC.
Redirect examination testimony
On redirect examination, the prosecutor again asked Finney hypothetical questions. In response, Finney testified that if a gang member committed a robbery in his own territory, against people who were not in the gang, “there is no need for him to say, ‘This is such and such gang committing this robbery.' It doesn't benefit him in any way.” Finney explained that a gang member would identify himself if he was involved in a conflict with a person from a rival gang. “But just committing a robbery of citizens, there is no need for it.” Finney clarified that Mosley's stolen gun was found on April 7, 2009, during the traffic stop of a vehicle. A male and female were in the car, and the female had some relation to a gang. Mosley's stolen car was abandoned in the territory of the ESC, and the two suspects ran to another location within the traditional boundaries of the ESC.
DEFENSE EVIDENCE
Defendant did not testify.
Detective Kennemer testified that about 30 minutes after the barbershop robbery, he took Mosley to Feliz Drive for a show-up on Alton Gunter and Terrance Ellis, who had been in the apartment. Mosley could not positively identify anyone.
Detective Dossey testified that Victoria Campbell described the two running suspects as African-American males.
Officer Ryan Williams testified that on April 6, 2009, he conducted a traffic stop on a vehicle driven by Brandon Jackson, an African-American. Mosley's stolen gun was found under the driver's seat.
A criminalist testified that clothing and DNA samples were taken from Terrance Ellis and Alton Gunter as part of the investigation into the barbershop robbery. Another criminalist testified that a latent fingerprint for Brandon Jackson was found on the stolen firearm.

Ruiz, 2012 WL 4076669, at *1-9.

         III. ...


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