United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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
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.
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.)
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.
Court adopts the Statement of Facts in the Fifth DCA's
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
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
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
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
[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
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
[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
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
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
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
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.
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
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.
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.
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
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
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
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.
prosecutor asked Officer Finney a series of hypothetical
“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
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-”
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
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
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
“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
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.
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
“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.
“[Q.] Does that have any significance with regard to
your testimony in this regard?
“A. Not really.”
prosecutor ended his direct examination questions.
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
[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.
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.