Opinion
F060378 Super. Ct. No. BF127448A
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. TOMMY PERNELL DAVIDSON, SR., Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
Tommy Pernell Davidson, Sr., defendant, was convicted of first degree premeditated and deliberated murder with the special circumstance that the murder was committed to further the activities of the gang and while he was an active participant in a criminal street gang. In addition, he was convicted of being a felon in possession of a firearm, being an active member of a street gang and carrying a loaded firearm, and active participation in a street gang. Numerous enhancements for each crime were also found true.
Defendant appeals claiming it was error for the trial court to: not close the courtroom for the testimony of two defense witnesses who feared gang retaliation; strike the testimony of a defense witness when she refused to answer questions on cross-examination because of her fear of the gang; admit propensity evidence under the guise of expert testimony; and refuse to disclose jury identifying information to aid defendant's claim of jury misconduct. He also claims the evidence was insufficient to support the gang enhancement and the gang special circumstance. We disagree and affirm the judgment.
STATEMENT OF THE FACTS
Charnika Lee had known Jesse Hill, the murder victim, for approximately three years. They started out as friends, but their relationship developed into a boyfriend-girlfriend relationship. Lee was familiar with street gangs and knew that Hill was a member of the East Side Crips. Lee knew defendant and knew that Hill felt that defendant was like family to him. Defendant was an "OG," an original gangster and older person in the gang.
Hill began pulling back from the gang in 2008. When Hill was in jail the beginning of 2009, Lee had daily contact with him. Hill told Lee he wanted to change the way he was living and wanted to leave the gang. Sometimes Hill would have a conference call with Lee and with Pastor Wesson discussing his desire to change. In a taped conversation from jail on February 10, 2009, Hill told Lee how he wanted to get out of the gang and really wanted to change. Hill said he was not going to stay "on the 'hood," which meant he was going to leave the gang.
On March 12, 2009, Hill called Lee and said he was going to be released from jail that evening. He asked Lee to pick him up and to call the pastor. Lee picked up Hill and drove him to Hill's Aunt Linda's house. During the drive, Hill used Lee's phone to call the pastor. The pastor could not talk at that time and said he would call back. Hill visited for a few minutes with family, got a change of clothes, and left with Lee.
Lee drove Hill to the market where he cashed a check and bought some liquor. They drove to a home on Powell Lane. When they arrived Hill opened the liquor bottle and poured himself a cup. He put the bottle in the trunk and then he and Lee went inside the house.
There were several men inside the house, including defendant who was on the couch. Hill greeted everyone, but defendant did not reply. Hill asked the others what was the matter with defendant. He was told that someone had shot at defendant two hours earlier, and defendant was upset.
Defendant and Hill talked for a short while. Defendant then grabbed a gun that was underneath the couch and stood by Hill and pointed the gun at him. Jabbaar King, the owner of the house, wrestled defendant for the gun and the two fell onto the couch. King retrieved the gun and took it to another room of the house. Lee had seen the gun before, because it had belonged to Hill.
At one point during the 30-minute visit by Hill and Lee to the house on Powell Lane, defendant became angry that people were calling him Tommy, he aggressively told them to call him "T." People were drinking at the house, but were not using drugs. Lee and Hill left after half an hour.
After going to a few other places, including Lee's house where Hill changed his clothes, Lee and Hill saw two males who asked Hill if he wanted to purchase a bottle of vodka. Hill said he did not want to purchase it, but he knew someone who would. One of the males with the vodka, Paul Evans (Blue), accompanied Hill and Lee back to the residence on Powell Lane. They went into the house. The same people were there who had been there earlier, except Demarcus Burns. Burns returned after a few minutes and purchased the bottle of vodka. The group drank from the vodka bottle.
Defendant and Hill began talking. A woman barged in the front door and defendant told her that she could get shot for walking into a house the way she did. She joked and said she had a gun in her purse and knew how to shoot back. This made defendant angry and he said he would kill her. Hill tried to calm defendant; the woman left. Hill explained to Lee that defendant had caught his wife with another man, and he was angry.
Hill and defendant began a serious conversation. Hill told defendant he was going to leave the gang. Defendant said to Hill that he was not going to leave the gang. Hill replied that he was. Defendant said, "[Y]ou used to be my Loc, now you're acting like a square." A "Loc" is a fellow gang member; a square is someone who does not "gang bang."
The two continued their conversation with Hill insisting he was going to leave the gang, and defendant saying he was not going to. Hill then swore he was going to leave the gang, and he swore on A-Loc's grave. (A-Loc was a friend of Hill's who was killed in 2008.) This angered defendant and he said Hill should swear on the life of Nub (Leon Anderson), a Stroller Boy (the subset of the East Side Crips gang), who was killed by a police officer. Hill replied that it did not matter whose life he swore on because he was going to quit the gang.
Defendant was angry and was in Hill's face acting like he wanted to fight. They continued to argue and the argument became heated. Lee tried to stop them from arguing. Defendant rushed at Hill and Hill hit defendant. They began fighting and fell on the couch. Hill was hitting defendant and then got up and backed away. Defendant got up and went after Hill. They continued to argue and Hill complained to defendant that he was disrespecting him. To this defendant replied that he could disrespect Hill because he (defendant) was a "big homie."
Defendant rushed at Hill again and they fought. They fell behind the door and Hill was hitting defendant hard. Hill stopped hitting defendant and they got up. Defendant said, "[L]et's take it outside." Everyone in the house, except King, went outside and the arguing continued. Lee went to her car, started it, and urged Hill to leave with her. Hill and defendant continued to yell about respect with Hill saying he was being disrespected, and defendant saying he did not have to respect Hill.
Hill calmed down and went to Lee's car. He put his sweater and shirt in the back seat, and had his foot in the car. Defendant walked up and said, "Got to disrespect you, and you're a square, and I'm your big homie." Defendant and Hill returned to the driveway and continued to argue. Nathaniel Jones got in the middle of the two and Hill pushed Jones and told him to get out of his face. Jones returned to Hill and told him to calm down. Hill pushed Jones to the ground. Jones got angry and told Hill he was going to get a gun and kill him.
Hill continued to be angry about everyone disrespecting him. Hill hit Jones and defendant ran into the house, got a gun, and came back outside. As defendant came out of the house, Burns grabbed Hill and broke up the fight. He told Hill to calm down. As defendant got near Hill and Burns, he slid the slide of the semiautomatic pistol to the rear, bringing it forward to load a round into the gun. Defendant was three to five feet away from Hill.
Burns and Hill looked up and were surprised. Hill put his hands up and backed up. In disbelief, Hill said to defendant, "[O]h, it's like that, Tommy, you're gonna shoot me, you're gonna shoot me?" As soon as Hill said this, defendant shot Hill. Hill clutched his stomach and ran to the end of the driveway; defendant followed and fired another shot at Hill. Hill continued to run, with defendant running behind him. Defendant kept firing as he chased Hill down. Lee lost sight of the pair as they ran down the street to the cul-de-sac, and she quickly left the scene. She drove to the home of Hill's Aunt Linda and they returned to the crime scene. Everyone had left the home on Powell Lane and it was dark. Hill was on the ground and a sheriff deputy was there. Lee told officers what happened, she was interviewed later that morning, and still later she gave further details after she had calmed down.
Lee was afraid of defendant and was in the witness protection program when she testified at trial. She had previously acquired a gun because of her fear. When she was stopped by law enforcement some time after the murder, she had a gun in her purse. She was not charged with this crime.
A neighbor on Powell Lane woke up after 1:00 a.m. on March 13, 2009, when he heard a big bang. He saw a man on the ground and man standing over him. The neighbor could not hear what was being said, but the man standing over the victim was moving his mouth and pointing. One man ran away, the man on the ground was bleeding and asking for help. The neighbor called 911. During a television interview the neighbor told the reporter that one male was on the ground while the other male held a gun on him before running off. Another neighbor heard four or five gunshots and saw a car drive quickly away from the area.
Officers and medical personnel arrived on the scene. Hill was found in a cul-de-sac area down the street from King's home. Hill was transported to the hospital where he was pronounced dead at 2:01 a.m. At the scene, Detective Lloyd Waters followed the trail of blood. He found a drinking cup, a bag of marijuana, one live round and one spent shell casing in the yard where the blood trail began. Additional shell casings were found along the trail of blood.
Hill died from a gunshot wound to his torso. The bullet entered on the back right side and traveled to the front left side in a slightly downward angle. He had a blood alcohol level of .218. His blood alcohol reading may have tested higher than usual because the blood tested was taken from his stomach.
Burns testified that he knew defendant and Hill. Hill and Burns were together when they were shot in 2006. Although Burns knew King, Burns stated he had never been to the house on Powell Lane and was not present when Hill was shot. He denied ever being in a gang or knowing anyone who was a gang member.
At trial, Jones said he had seen defendant and Hill before. He denied any gang involvement and denied talking to defendant while defendant was in jail. In an interview before trial, Jones said he was not present, and then eventually admitted he was present when defendant and Hill got into the argument. Hill got upset and struck Jones. Jones walked away and, as he walked, he heard screaming, running, and gunshots.
King testified at trial that he had a barbeque on March 12, 2009, and a lot of people came to his house on Powell Lane. He thought defendant was at his house. Hill was at his house with a woman. King could not remember who else was there that day. He testified there were a lot of people arguing; he told the people to leave and they went outside. King heard gunfire and heard people leaving so he also left. He did not see a firearm in his house. King said he did not know any East Side Crips.
In an interview before trial, King said defendant and Hill were at his house the day Hill was killed. Defendant and Hill got into an argument about who was the "hardest." Although they argued, King said there was no hand-to-hand combat. King said there was no flashing of guns, but he saw defendant with a gun earlier. He described defendant as a bad man with a reputation.
Evans said he was not a member of the East Side Crips, but he hung out with family members who were. He knew Hill. On March 12, 2009, he approached Hill and asked him if he wanted to buy a bottle of vodka. Hill said he knew someone who would. Hill, Lee and Evans drove to the house on Powell Lane. Evans said there were approximately five people there.
Evans said that Hill and defendant began arguing. Hill was complaining that the others had forgotten him while he was in jail and Hill was not going to mess with them anymore. Hill and defendant continued to argue. They talked about A-Loc and defendant cursed A-Loc. Hill and defendant wrestled and Hill pushed defendant down on the couch and started socking him. Defendant smiled at the others as if to indicate that he thought Hill was crazy. Evans thought that it looked like defendant was just "messing" with Hill, but Hill seemed serious. Evans pulled them off each other, but they continued to argue. Evans wanted to leave. Defendant told Hill that he had raised him and taught him.
Evans got Hill to go outside. Defendant went outside and Hill told him he was tired of being treated like a kid. Jones grabbed Hill and told him to calm down. Hill pushed Jones off of him. Defendant asked Hill why he had pushed Jones, and Hill said he was tired of everyone grabbing him. Hill asked the others to leave him alone. Defendant and Hill continued to argue. At some point defendant told Hill he was being disrespectful. Evans was walking away when he heard gunshots and then he ran away.
Defendant was apprehended by law enforcement on April 2, 2009, in Compton, at the home of Donnisha Reneau. Reneau had been friends with defendant for a long time. Defendant called her on March 13, 2009, and asked if he could go and stay with her because he had a disagreement with his girlfriend. He arrived that same date having only the clothes on his back and his cell phone with him. He had to purchase clothes after he arrived.
Antoinette Mitchell, Hill's mother, testified that she had known defendant for a very long time and he was a friend of the family. Hill started hanging out with defendant when Hill was 17 years old. They hung out all the time. Mitchell had knowledge of the East Side Crips and the Stroller Boys. She testified that defendant was originally a member of the Midnight Strollers, a dance group that evolved into the Stroller Boys, a criminal street gang. Defendant was an OG in the Stroller Boys and was well respected in the gang. Leon Anderson was a close friend of defendant's. On the day Anderson was killed, he had gotten into an argument with Hill. There had been problems between Mitchell's family and Anderson's family since that day. Mitchell named several members of the East Side Crips and Stroller Boys.
The mother of two of defendant's children, LaShanda rAmstead, testified. Armstead believed that defendant was in a gang. In the past 10 years, defendant had only been employed for three months total. Hill was approximately 20 years younger than defendant, but they were friends. In the days before Hill was killed, Armstead had received a voice message from defendant that he was losing his mind, in another message defendant said he was going to be responsible for someone's death. Defendant also told Armstead she would not come between him and his daughter and asked Armstead to give him their daughter so they could move on. Defendant was upset that Armstead was having a relationship with someone else.
Armstead testified that Hill and Anderson had an earlier dispute because Hill wanted to be a shot caller. According to Armstead, defendant thought Hill was responsible for Anderson's death, he thought Hill had disrespected Anderson, and the day after Anderson was killed, defendant thought he should have someone kill Hill.
Donald Wesson, the pastor of St. Paul Baptist Church, testified that he met Hill as a child in 1995. Hill was changing in the months before he died. Hill wanted to get his life straightened out. Wesson was trying to help Hill leave the gang life.
Greg Jehle, a sergeant with the Bakersfield Police Department, testified as a gang expert. He testified that the East Side Crips is a criminal street gang with more than 600 members. A primary activity of the gang is narcotic sales, and guns are the tools of their trade. A subset of the East Side Crips is the Stroller Boy Crips. The larger group is broken down into smaller groups to control drug sales in a particular neighborhood.
The Stroller Boys started as Midnight Strollers, a group of street dancers. Defendant is an original member of the Stroller Boys and in 2009 he was a senior member. The gang has engaged in a pattern of criminal behavior, including murders.
Jehle testified that gang members typically do not quit the gang, and it is a risky proposition when they do. One who leaves the gang is considered disloyal. Gang members have to show respect to senior members of the gang. If the proper respect is not shown, there will be punishment, up to being killed. The top members of the gang are called OG's, shot callers, or senior members. It is important for an OG to command respect from younger gang members. It is disrespectful to try and get out of the gang or for a younger gang member to argue with an OG.
Jehle had known defendant for 20 years. Jehle described defendant's tattoos, the times he had been booked into jail when he claimed the East Side Crips and Stroller Boys as his gang, and the numerous times he had been contacted by law enforcement while in the presence of known gang members.
Jehle then identified several instances when defendant engaged in criminal behavior. The first instance was in 1984. Defendant had a personal disagreement with Lonnie Key over defendant's sister's pregnancy. Defendant went to Key's residence and fired two shots at him. Key ran and defendant continued to shoot at him. Defendant fled after the shooting. Jehle said this incident was significant because it showed that a gun is the tool used by gang members to gain respect.
In an incident in 1985, defendant had marijuana in jail. Jehle testified that possessing narcotics in jail gives them status. Defendant was involved in the sale of drugs in 1994. This was relevant because the East Side Crips made money by selling narcotics. In 1994, defendant had a gun under his bed. Defendant violated his parole on more than one occasion by continuing to associate with gang members.
It was Jehle's opinion that defendant was an active member of the East Side Crips Stroller Boys gang and had been an active member since its inception, achieving senior status. It was also Jehle's opinion that Hill was an active member of the East Side Crips Stroller Boys gang. After Anderson was shot, defendant stepped up to be the leader of the gang. Many people in the gang blamed Hill for Anderson's death. Lee was not a gang member.
The district attorney posed a hypothetical question to the gang expert mirroring the facts of the case; the gang expert said that in such a hypothetical situation the actions of defendant would benefit the gang and would be performed with the specific intent to further or assist the gang. An OG could not maintain his position as an OG if he did not take action when a younger gang member challenged him. If an OG lost to a younger member, he would lose "face." The OG had to finish the fight and win.
DEFENSE
Defendant's cousin, Myja Gardner, testified on defendant's behalf. Her testimony was stricken entirely after she refused to answer certain questions on cross-examination.
Deputy sheriff Tommy Robins testified that he interviewed the neighbor, Phillips, after the shooting. Phillips told him he saw one man on the ground and another man running away. Phillips did not tell Robins that he saw one man holding a gun and standing over the victim. Phillips was nervous and reluctant to talk to Robins.
Defendant testified on his own behalf. He said he had several jobs in the past 10 years including a three-month job at a refinery, a seven-to-eight month job at a group home, a gardening service, and various temporary jobs. In addition to working, he spent a lot of time taking care of his children and his cousin's children.
He was a member of the Midnight Strollers, a dance group, which became the Stroller Boys in the 1980's, and was a member of the Stroller Boys. He had tattoos reflecting his membership. In the mid-1990's his sister was killed in a drive-by shooting and he stopped participating in the gang. He still associates with 20 or 30 members of the East Side Crips because they are his friends.
Defendant said he knew Hill since Hill was a baby and saw him every other day. Hill was a Stroller Boy. On the evening of March 12, 2009, someone shot at defendant. He did not have a gun and did not retaliate in any way. He then went to King's home on Powell Lane.
Hill came to the house with Lee in the evening and stayed for a short time. Hill and defendant did not argue. Hill returned later, with Lee and Evans. Hill wanted to know why defendant had not retaliated after the shooting earlier in the day. They argued about that. Hill swung at defendant while inside the house. Someone broke up the fight, and then Hill hit defendant again. They continued to argue, and argued about A-Loc. King told everyone to go outside. The group at the house went outside while King remained inside.
Hill and defendant argued again and Hill removed his shirt. Jones tried to intervene and Hill hit Jones. Jones got up and walked away. Hill and defendant continued to argue. Defendant asked Hill why he hit Jones. Hill said he was tougher than all the others. Hill walked to the car to get something. Hill returned, and defendant and Hill started fighting. While wrestling, defendant noticed that Hill had a gun in his waistband. Defendant gained control of the gun when it fell to the ground. Defendant jumped up and fired one shot while Hill was some distance from him. Hill ran away and defendant fired some shots into the air. Defendant turned around and went back inside the house. Someone, who defendant could not identify, took the gun. Defendant left.
Defendant testified that he fired the shot because he was in fear for his life. He knew how Hill "was" and knew of assaults Hill had committed on other people in the community. Defendant knew Hill was often armed, and Hill had told him he had shot at someone before. Defendant thought if he did not shoot Hill, Hill would shoot him. Defendant left town because he was scared.
Defendant said he did not have a dispute with Hill about Anderson's death. On the evening of March 12, 2009, Hill was upset that no one put money on his books when he was in jail and no one looked up to him. Hill did not say anything to defendant about wanting to leave the gang.
On cross-examination defendant admitted he had prior convictions, but stated he did not commit any crimes on behalf of the East Side Crips. He obtained his gang tattoos while in prison and stopped being a member of the gang in the mid-1990's. Defendant admitted it was possible that he may have said Hill should be killed after Anderson was killed. Defendant denied telling officers he was on the ground when the gun went off. Defendant said he cocked the gun and defendant was a couple of feet away when he shot him. Defendant testified he did not run to the cul-de-sac after he shot Hill. He only ran as far as the next house.
Defendant was afraid Hill would take the gun from him and kill him.
REBUTTAL
Detective Royce Haislip interviewed defendant on April 7, 2009. Defendant initially denied shooting Hill. Haislip asked defendant 11 times if he shot Hill and defendant said no. Haislip told defendant he knew that defendant shot Hill. Defendant then said that Hill had a gun in his waistband and while they were fighting the gun went off on its own. Defendant later said the gun accidently discharged after defendant picked it up. Still later, defendant said he picked up the gun. Hill was choking him and he feared for his life, so he shot the gun. Defendant said after this the gun continued to fire. I. Refusal to Clear the Courtroom for Testimony by Defense Witness
Gardner, defendant's cousin, was called to testify on defendant's behalf. She testified that she was 36 years old, had known defendant all her life, and lived in the same house he lived in, her mother's house. Gardner testified that she knew Hill, and knew that Hill and defendant had been friends for years. Hill was at their home every day, and when Hill was in jail he would call every day. Hill and defendant got along and did not argue.
Gardner testified that she grew up in East Side Crips territory, lived there continuously for more than 20 years, and currently lived there. She testified that she knew more than 20 people who were affiliated with the East Side Crips. Some of them were family members and friends. She claimed to have discussed gang life and gang culture with them.
She testified that defendant had tattoos and had them for more than 10 years. She said that defendant was not an active gang member. He did not participate in activities that gang members normally participated in, such as robbing, shooting, and selling drugs; he did not possess drugs or guns; he did not participate in gang meetings and did not tell others what to do. She said defendant spent most of his time at home; he spent his time fishing, working around the house, and watching his children and Gardner's children.
On cross-examination Gardner was asked about her visits with defendant in the jail; the money she would put on his books; and the fact that she loved him. She denied ever attending an East Side Crips meeting. She said she was at the house when the sheriff came looking for defendant after Hill was killed and denied knowing defendant's whereabouts at the time. She said she spoke with defendant on the telephone during the time period after Hill was killed and before the sheriff arrested him and, again, denied knowing where defendant was. She was asked if she knew defendant's oldest son, Tommy Davidson, Jr. She said she did. She was asked if he was an East Side Crip. She said he was not. When asked where Tommy Davidson, Jr., was, she said he was in jail and agreed he was charged with a gang-related crime. She again said, however, that he was not a gang member. She was asked about Christopher Mills. She denied knowing him. She was asked about Blue Foot. She denied knowing him. It was at that point, she was asked, "Who are some of the people that you know who you believe are Eastside Crips, their names?" She refused to answer the question. The People then said, "Ma'am, you stated you knew lots of people that were." She answered, "I do." The People then said, "Tell us." She refused to answer the question.
The court gave defense counsel the option of striking Gardner's testimony or holding her in contempt to see if she would testify. Defense counsel stated that Gardner said she would answer the questions and would be ready to proceed at 1:30 p.m. The court then recessed for lunch.
Upon returning after lunch, defense counsel made a motion to exclude the public during the testimony of Gardner and another defense witness. Counsel asserted that Gardner was reluctant to name East Side Crips members in front of Hill's family or associates who were seated in the courtroom; she felt her safety would be jeopardized or she would be labeled a snitch. Defendant agreed to waive his right to a public trial for the two witnesses.
The People refused to waive any right to a public trial. The prosecutor argued that defense counsel opened the door regarding who were members of the East Side Crips gang members in an open courtroom, and the People should be allowed to cross-examine the witness in front of the same people. The People also stated that there was no indication that there was a safety issue. They pointed out that there was no evidence anyone in the audience had behaved inappropriately, threatened anyone, or intimidated anyone. In addition, the People noted that these witnesses were not on the witness list, were undesignated witnesses, and the People were deprived of running the names by the jurors. The People also thought it was unfair that one side would be able to clear the courtroom of spectators when the witnesses called by the prosecution were required to testify in front of defendant's friends and family.
The court stated that it had kept a close eye on the civilians in the courtroom and had also instructed law enforcement to keep a close eye on them. The court had not seen anything to indicate that any type of intimidation was occurring. The court thought the People had a good point that if the shoe were on the other foot, it would be difficult to clear the courtroom for the People's witnesses. The court noted that defense counsel had not designated the witnesses on the witness list, and it was unfair to now call the witnesses and additionally ask that the courtroom be cleared for their testimony. The court denied defense counsel's request to clear the courtroom for cross-examination. The court stated, "So if you wish to call somebody who's not on the witness list, that's your choice, and they're going to have to answer the questions in front of the public."
Proceedings resumed with Gardner retaking the witness stand. The People reminded Gardner that she had been asked, before lunch, whether or not she could tell them who the East Side Crips gang members were who she knew, and asked her if she was willing to tell them now. Gardner said, "no." The court excused the jury, held Gardner in contempt, ordered her taken into custody, and appointed an attorney to represent her.
The following morning, the court held a contempt hearing. Gardner's counsel stated that she would be willing to answer the questions with the proviso that the public be removed from the court during her testimony. Her counsel indicated that she had a well-founded fear that answering the questions would result in harm to her. Her fear was based on the fact that her husband was murdered in front of 100 people by a youngster being initiated into a gang and yet not one person would testify about what they saw. Gardner's counsel had asked members of the Hill family to not come into the courtroom during Gardner's testimony, but they refused his request.
Defense counsel stated that Gardner's testimony was important and helpful to the case, and again asked that the public be removed just for the one question. The court questioned defense counsel why he had not brought up the issue before calling Gardner to the stand so the court could have addressed the issue before she testified on direct examination. Defense counsel replied that he did not anticipate that Gardner would be asked this question, but did say he had discussed with Gardner, before her initial testimony, that he would be asking her "questions about Eastside Crips, about people that she knew, about the gang lifestyle, and this would open the door to certain issues." During his discussion with Gardner, after she first refused to answer the People's question, Gardner agreed to "go ahead and name names." When she took the stand the second time, he believed that she realized "that the public had not been excluded from the courtroom" and so refused to testify.
The People argued that there had not been a proper showing sufficient to exclude the public from hearing testimony in this case. In addition, the People claimed Gardner's refusal to answer a question unfairly limited the People's right to cross-examine her on a very material issue in the case.
Counsel for Gardner argued that everyone knew that one of the things East Side Crips were known for was witness intimidation. He asserted that Gardner's recollection of her pretestimony conversation with defense counsel was different than the recollection of defense counsel. Gardner told him that defense counsel represented to her that she was not going to be asked to name any names. Gardner's counsel emphasized that Gardner had a well-founded fear of retaliation.
The court stated that it was clear from the testimony Gardner did give, that she could testify that defendant was not a gang member because she was familiar with gangs and the gang lifestyle, including who was in the gang and how it worked. The court said that it was apparent Gardner would understand the questions that would be asked of her in court. The court noted the information Gardner had testified to regarding defendant being her relative who had been "locked up" and who she had been out to talk to on many occasions. The court concluded that, Gardner was not a "simpleton who [did not] understand what [was] going on," and that the people who had been present in the courtroom had done absolutely nothing to intimidate anyone. The court concluded there had not been the necessary showing to exclude the public. The court determined that it would strike Gardner's answers given in both direct examination and cross-examination.
Defense counsel asked the court to take a less drastic solution and merely allow the jury to consider the failure to answer the question in evaluating her credibility. The court denied defense counsel's request finding that the question was a very material part of the case and the inability to fully cross-examine Gardner limited the People's cross-examination, which was a necessary part of a jury trial. After defendant testified, the court informed the jury that it was striking all of Gardner's testimony and they were not to consider it.
After the court ruled it would not exclude the public from the questioning of Gardner, defense counsel stated it would not be calling a second witness because that witness was also fearful.
Defendant now claims his right to present a defense and his right to compulsory process was violated when the trial court denied the request to clear the courtroom because defense witnesses were fearful of retaliation from the East Side Crips.
Defendant cites to People v. Esquibel (2008) 166 Cal.App.4th 539 (Esquibel)and Waller v. Georgia (1984) 467 U.S. 39 (Waller).
In Esquibel, a lone gunman, the defendant, entered a public park and shot at a group of adults and children in the park. One of the children was grazed by a bullet. As parents chased after the shooter, the shooter shot again, paralyzing one of the adults. It was claimed that the shooting was gang related. (Esquibel, supra, 166 Cal.App.4th at p. 546.)
One of the proposed witnesses at trial was a seven-year-old boy. His mother expressed fear of retaliation in the neighborhood and asked for several accommodations when her son testified including that certain persons in the audience who were associated with the defendant and the gang be removed. The prosecutor explained the mother was concerned that the defendant's friends would recognize the child when they saw him in the neighborhood and that would put the child's life in danger. (Esquibel, supra, 166 Cal.App.4th at pp. 546-547.) Although there was no evidence that anyone in the courtroom had engaged in intimidation, the trial court agreed that certain accommodations sometimes had to be made for a young witness and that a young child is more subject to intimidation than an adult, particularly, because it is already traumatic for a witness of that age to come into court and testify. The trial court excluded the two males who were in the audience and were friends of the defendant from the courtroom. The defendant appealed claiming this violated his right to a public trial. (Esquibel, supra, 166 Cal.App.4th at pp. 548-549.)
The appellate court found that "the partial closure of a trial by the temporary exclusion of select supporters of the accused [did] not create an automatic violation of the constitutional right to a public trial." (Esquibel, supra, 166 Cal.App.4th at p. 554.) "[T]he exclusion of the spectators was for a minimal amount of time and appellant's family supporters remained in the courtroom." (Ibid.)As such, there was no constitutional violation of appellant's rights. (Ibid.)
Unlike Esquibel, this defendant has not asserted a constitutional right to a public trial. Unlike Esquibel, this defendant did not ask for partial closure by the exclusion of select supporters, but asked that the courtroom be closed to the public. Unlike Esquibel, defendant's witness was not a child whose fears of gang retaliation were credible. Defendant's witness was an adult who demonstrated to the trial court sophistication regarding the relevant criminal street gang. The trial court concluded, based on the witness's testimony and its own observations of the audience in the courtroom, that the fear the witness claimed was not believable.
Defendant's contention regarding Waller is that the trial court failed to apply Waller's "standard" for closure.
In Waller the Supreme Court identified four issues that must be addressed when considering denial of public access to a criminal proceeding: "(1) there must be 'an overriding interest that is likely to be prejudiced' if the proceeding is left open; (2) 'the closure must be no broader than necessary to protect that interest'; (3) 'the trial court must consider reasonable alternatives to closing the proceeding'; and (4) the trial court must articulate the interest being protected and make specific findings sufficient for a reviewing court to determine whether closure was proper." (People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421, fn. omitted.)
The trial court did not deny the public access to defendant's criminal proceeding; it denied defendant's request to deny the public access. In doing so, the trial court made a determination that the witness's assertion of fear was not credible.
Defendant argues that the trial court sought to punish defendant because Gardner was not on the pretrial witness list and, in continuing with its "punitive mood," the trial court put Gardner in jail. According to defendant, the trial court then blamed Gardner for not anticipating that she would be called upon to name East Side Crips in open court, and defendant now claims Gardner's failure to be clairvoyant should not outweigh his right to present a defense and to compulsory process. Next, defendant asserts the trial court determined the defense had to make an actual showing that someone had intimidated Gardner in order to close the courtroom, which was wrong, particularly when the prosecution's case was built on a theory of gang intimidation. Defendant claims these concerns should not trump his right to call witnesses and present a defense.
We do not view the trial court's statements as "punishment." Trial courts are allowed to hold a witness in contempt when a witness refuses to testify. This is not punishment, but an attempt to convince a witness to testify as required by law.
The court did not expect Gardner to be clairvoyant, but noted she was extremely familiar with East Side Crips and their practices, including how they treat witnesses in court. The trial court could properly believe that, because Gardner is not a "simpleton," she was well aware of the questions she might be asked and the possible ramifications of her testimony. It simply did not allow her to manipulate the system. The court could properly view Gardner's fears, expressed only during cross-examination, as disingenuous in light of her extensive knowledge of the East Side Crips and her failure to show any apprehension while testifying about the East Side Crips during direct examination by defense counsel. The trial court was in the best position to determine whether Gardner was intimidated or whether her fear was sufficiently well founded to constitute an overriding interest necessitating closure of the courtroom. (See People v. Baldwin, supra, 142 Cal.App.4th at p. 1422.) Its decision was, in essence, a proper determination that defendant did not prove an overriding interest essential to preserve higher values that necessitated closure of the courtroom.
The fact that a witness is uncooperative or refuses to testify does not constitute a deprivation of the rights asserted by a defendant. To hold otherwise would mean built-in constitutional error each time a defense witness refuses to testify unless his or her conditions are met. The court is not a pawn in proceedings to be manipulated by the desires and requests of witnesses, when those desires and requests have no adequate legal basis.
Defendant also makes arguments related to the next three Waller factors. He claims the proposed closure was no broader than necessary to protect his right to present his defense, the trial court failed to consider reasonable alternatives, and there was ample evidence to support closure. Having found the trial court did not err when it determined the courtroom need not be closed for a portion of Gardner's testimony, the next three criteria from Waller are not relevant. Additionally, we need not determine prejudice, because there was no error.
II. Striking the Testimony of Gardner
When Gardner refused to answer certain questions on cross-examination, the trial court struck her testimony, in its entirety, and rejected defendant's suggestion that the court merely instruct the jury to consider the failure to answer the question in evaluating her credibility. Defendant claims striking the testimony in its entirety violated his state and federal due process right to a fair trial.
"In deciding whether to strike a defendant's or a defense witness's testimony based on his or her refusal to answer one or more questions, the trial court should examine '"the motive of the witness and the materiality of the answer." [Citation.]' [Citation.] The court should also consider if less severe remedies are available before employing the 'drastic solution' of striking the witness's entire testimony. [Citation.] These include striking part of the testimony or allowing the trier of fact to consider the witness's failure to answer in evaluating his credibility." (People v. Seminoff (2008) 159 Cal.App.4th 518, 525-526.)
"[T]here is solid support, both judicial and scholarly, for the proposition that when one or two questions asked during cross-examination are at stake and those questions relate to a collateral matter such as the nonparty witness's credibility, the trial court need not strike the entirety of that witness's direct testimony." (People v. Sanders (2010) 189 Cal.App.4th 543, 556.)
The prosecution's question to Gardner asking her to name members of the East Side Crips was not a collateral matter. Gardner was not a percipient witness to the killing of Hill or any facts surrounding the activities of that evening. The thrust of her testimony was that she was knowledgeable about defendant's activities and knowledgeable about the East Side Crips. She testified she knew at least 20 members of the gang. Her testimony regarding her knowledge of the gang was used as the basis to support her opinion that defendant was not an active member of the gang when he shot and killed Hill. The two questions posed by the evidence to the jury were the state of mind of defendant when he shot Hill and whether the shooting was gang related. Defendant's gang status at the time of the shooting was highly relevant to this second question, and also relevant to the first question. The prosecution needed to be afforded the opportunity to test Gardner's knowledge of the gang. Because Gardner's knowledge of the gang was highly relevant to her entire testimony, the question she refused to answer was pivotal and not peripheral to the cross-examination.
We need not decide which standard of review applies to the trial court's determination whether to strike all of a witness's testimony because under either an abuse of discretion or an independent review standard, we find the striking of the entire testimony was not erroneous. (See People v. Sanders, supra, 189 Cal.App.4th at p. 554, fn. 2.)
III. Prior Conviction of Defendant as Basis for Gang Expert Testimony
Defendant made a motion in limine to exclude the admission of any evidence related to a shooting by defendant that occurred in 1984 and resulted in defendant's conviction for assault with a deadly weapon. He claimed it was inadmissible negative character evidence and unduly prejudicial under Evidence Code section 352.
The People asked the court to conduct a "402 hearing" during which the gang expert would testify as to the significance of the 1984 shooting to his opinion as to whether defendant was a gang member, the period of time he was a gang member, and whether he was a gang member when Hill was shot.
The requested hearing was held. Jehle, the gang expert, testified that, in 1984, defendant had an argument with Lonnie Key concerning defendant's sister and Key seeing someone who was related to a person responsible for the death of defendant's brother. During the argument, defendant confronted Key, Key fled, and defendant fired a gun at Key twice. Defendant then fled, was later arrested, and was convicted, by plea, of assault with a deadly weapon. Jehle testified that, at the time of the 1984 incident, defendant was involved in the Midnight Strollers, a gang. The Midnight Strollers was also the "beginning of the Stroller Boy Crips. Jehle believed defendant was a member of the East Side Crips at the time. In 1984 the STEP Act (Street Terrorism Enforcement and Prevention Act) was not in effect. Jehle said it did not matter if the members were called the Midnight Strollers or the Stroller Boys, in 1984 they were committing crimes now reflected in Penal Code section 186.22, or "gang crimes." Jehle testified that a dispute involving a gang member almost always led to the use of a firearm, because a firearm is a tool gang members use to solve disputes. Gang members use guns for intimidation and to bolster their position and reputation. Additionally Jehle testified that, in 1984, when law enforcement was looking for defendant, they obtained information regarding where he was loitering or hiding. That location was in East Side Crips gang territory. Jehle testified that he did not know whether Key was a gang member at the time of the 1984 shooting. He had not read all of Key's reports from "back then."
The People argued the evidence should be admitted because it demonstrated that defendant was a member of a gang, that gang members use guns to resolve disputes, and use of a gun shows their dominance in the gang, promotes both the gang and their position within the gang. Defendant argued that the shooting occurred 26 years earlier and was not a gang-related incident; that the evidence was nothing more than propensity or character evidence being offered to show he was the type of person who would use a firearm and shoot at people. Defendant asserted any relevance the evidence might have had to the gang aspects of the case was far outweighed by the possibility for prejudice because the facts of the 1984 incident were so similar to the facts of the case at issue. The People replied that the 1984 assault was just one in a series of crimes defendant committed, thus it was not remote. The prosecutor argued the evidence was relevant to an expert witness's opinion as to whether defendant was a gang member and how long he had been a gang member. The prosecutor stated the jury could be given a cautionary instruction telling them not to use the evidence as character evidence. Defendant argued the curative instruction might not be followed because the nature of the prior shooting was so similar to the facts of the instant case.
The trial court found the 1984 shooting by defendant was relevant to the expert's opinion regarding defendant's involvement in gang-related activity. The fact that defendant's conviction was 26 years old did not sway the court because defendant continued to lead a life that was other than law abiding. The court found defendant's actions years ago showed he was willing to use a firearm to promote himself and his position within the gang consistent with the expert's testimony that gang members solve disputes with guns. The court found the testimony was standard information used by experts in gang cases and concluded the probative value outweighed any prejudicial effect. The court allowed admission of the evidence.
During trial, Jehle gave extensive testimony regarding the East Side Crips, their primary activities, their subsets, their members, their pattern of criminal behavior, and their structure and mode of operation.
Jehle then focused his testimony on defendant. He had known defendant for about 20 years. Jehle described defendant's tattoos, his bookings into jail, and the times Jehle or other officers had encountered defendant during street checks. The People then asked Jehle about some of the offense reports involving defendant. The first was the 1984 shooting of Key. Jehle testified that defendant had a disagreement with Key and fired a shot at him. Key ran, defendant followed and fired another shot at him. The disagreement was personal and involved Key and defendant's sister, as well as Key being with a girl who had been involved in the death of defendant's brother. Jehle testified this evidence was significant because, on the issue of what gang members do and how they take care of their business, a gun is the tool they use to enforce or gain respect or to take care of their business.
It was Jehle's opinion that defendant was an active OG of the East Side Stroller Boy Crips having been with them since the inception when the Midnight Strollers dance group formed a gang into the Stroller Boys. In 2009, defendant was the senior active member of the gang.
On cross-examination defense counsel asked Jehle if the 1984 shooting had any specific gang motive. Jehle said it did not. Defense counsel asked Jehle if he was aware whether Key was a gang member. Jehle said he had no knowledge of that. Jehle testified that he gathered his information primarily from reading police reports regarding the incident.
Defendant claims the shooting evidence was not a proper basis for the gang expert's opinion because it was irrelevant and unreliable. Because it was not admissible as support for the gang expert's testimony, then it was improperly admitted as highly prejudicial propensity evidence. He asserts the evidence was not relevant because his actions in a personal dispute in 1984 did nothing to prove he was a gang member at the time of the 2009 murder of Hill. He also claims it was unreliable because Jehle was unable to establish when the Midnight Strollers became the Stroller Boys and when the Stroller Boys began to commit crimes for the benefit of the gang rather than for their own individual benefit. He concludes that Jehle's expert opinion was overbroad and illogical; using a gun to commit an assault in 1984 does not equate with gang membership in 2009.
"Gang evidence, including expert testimony, is relevant and admissible to prove the elements of the substantive gang crime and gang enhancements. [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 609.) The culture and habits of criminal street gangs are proper subject matters for such testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) The information that forms the basis of the expert's opinion testimony must, however, be reliable. (Id. at p. 618.)
We disagree with defendant's contention that the evidence was unreliable because Jehle was unable to establish when the Midnight Strollers became the Stroller Boys and when the Stroller Boys began to commit crimes for the benefit of the gang rather than for their own benefit as individuals. Although he could not pinpoint an exact date, Jehle testified that the Midnight Strollers became the Stroller Boys and defendant was a member of the Midnight Strollers and continued as a member of the Stroller Boys, a subset of the East Side Crips. Jehle further testified that, although the STEP Act had not yet been passed in 1984, the crimes committed then by members of these groups were gang crimes. We fail to see how Jehle's testimony regarding when the Midnight Strollers became the Stroller Boys establishes the information as unreliable hearsay.
Defendant argues the 1984 shooting was not probative on the issue of whether he was a street gang member in 2009. To the contrary, even though the 1984 shooting did not have a gang motive, it demonstrated an aspect of defendant's history that helped prove he had been a gang member for a long time. This is so because defendant was a gang member at the time and he was willing to use a gun—the tool of a gang member— to resolve a dispute. His use of the gun, even for a crime that was not gang motivated, gave him respect within the gang. The People's claim that defendant held a position of respect in 2009 was bolstered by evidence that he was part of the gang in 1984 and acted in accordance with the expected practices of gang members.
The evidence was relevant and reliable; defendant's argument fails.
IV. Adequacy of Request to Disclose Juror Identifying Information
Code of Civil Procedure section 237 provides that any person may petition the court for access to sealed juror identifying information. The person asking for the information must establish a prima facie showing of good cause. The denial of a petition for release of juror identifying information is reviewed under the deferential abuse of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 990-991.)
Defendant filed a motion for an order disclosing personal identifying information for the jurors and alternate jurors who served on the case. Attached to the motion was a declaration by defense counsel. He stated that it had come to his attention after trial that there may have been some type of communication during the trial between the victim's family and some jurors. Counsel's investigator spoke to family members of defendant to determine what they had observed. Deondra Key, defendant's niece, told the investigator that on two different occasions during the trial she observed Hill's mother and two of his aunts speaking to two Caucasian female jurors during courtroom breaks.
The People filed written opposition to the motion. The People asserted defendant's declaration did not include facts sufficient to establish good cause for release of the information. In particular, it was claimed the declaration by defense counsel was double hearsay and furthermore was vague, lacking sufficient detail to be considered as reliable facts to qualify as good cause. Also, the People argued Deondra Key was not credible. The prosecutor stated Deondra Key had made derogatory comments about the prosecutor's questions and was ejected from the courtroom during the cross-examination of defendant. She was potentially biased, as demonstrated by her courtroom outburst and her failure to provide any details regarding her accusations.
At the hearing on the motion, defense counsel argued that he had shown good cause for the release of juror identifying information. The prosecutor reiterated the points made in her written opposition to the motion. The court questioned defense counsel why he did not have Deondra Key in court, or have a declaration from her, or a declaration from his investigator. Defense counsel responded that he thought his declaration was sufficient, but would try to take steps to correct the deficiencies, if necessary.
The court denied the motion stating there were no details about the events in the declaration, it did not have a declaration from Deondra Key, it did not have a declaration from the investigator, Deondra Key's credibility was questionable, the matter was not brought to the court's attention during the course of the trial, and the request was overbroad. The court found the facts were not sufficient to establish good cause for the release of the jurors' personal information.
Defendant now asserts his motion for the release of juror identification information should have been granted because defense counsel's motion established good cause. As a secondary argument, defendant claims that denying his motion deprived him of the effective assistance of counsel because it made it impossible for counsel to investigate potential juror misconduct.
"'Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror's right to privacy outweigh the countervailing public interest served by disclosure of the juror information.'" (People v. Carrasco, supra, 163 Cal.App.4th at p. 990.) "'Normally, hearsay is not sufficient to trigger the court's duty to make further inquiries into a claim of juror misconduct.'" (People v. Avila (2006) 38 Cal.4th 491, 605.)
The trial court did not abuse its discretion when it denied the motion for the disclosure of juror identifying information. The declaration was double hearsay and vague, the reporting party lacked credibility and failed to bring the matter to the court's attention when it occurred, and the request was overbroad.
Defendant claims the trial court's error in denying the motion deprived him of the effective assistance of counsel because his counsel could not properly investigate potential jury misconduct. Defendant does not claim his counsel was ineffective in the manner in which he brought the motion. Because the trial court did not err in denying the motion, defendant's claim of ineffective assistance of counsel is baseless.
V. Sufficient Evidence of Gang Enhancement and Special Circumstance
The jury found true the criminal street gang enhancement for count one, murder, and count two, felon in possession of a firearm. In addition, the jury found the criminal street gang special circumstance to be true.
The sentence enhancements charged under Penal Code section 186.22, subdivision (b)(1), required proof that the underlying felony was "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 ...." To prove the special circumstance alleged under Penal Code section 190.2, subdivision (a)(22) it must be shown "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang."
Defendant claims the evidence is insufficient to support the gang enhancement and special circumstance. Defendant contends the evidence was insufficient to find his motive was to benefit or further the activities of the East Side Crips because what occurred was a personal quarrel between Hill and defendant that escalated to the use of a gun. It is asserted by defendant that Jehle's opinions regarding defendant's gang motive were simply speculation based on general statements about gang culture. Defendant argues the only evidence that his actions were to benefit the street gang came from Jehle's opinion.
"In considering a challenge to the sufficiency of the evidence to support an enhancement [or special circumstance], we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty [find the allegations true] beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.'" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
Defendant relies on People v. Ramon (2009) 175 Cal.App.4th 843, a case from this court, to support his argument that expert speculation about motive to benefit the gang, standing alone, is not substantial evidence that will sustain a true finding on the gang enhancement. In Ramon defendant was driving a stolen truck and there was a gun under the driver's seat. The truck was stopped by officers in the heart of gang territory and defendant and his passenger were both gang members. (Id. at pp. 846-848.) We found the evidence was insufficient to support the gang enhancements that the jury found true. "The section 186.22(b)(1) enhancement requires the jury to find that the crime was committed for the benefit of a criminal street gang and with the specific intent to promote the criminal street gang. The only evidence on this issue was provided by the People's expert witness, Lopez.... In summary, Lopez relied on two independent facts in forming his opinion: (1) Both Ramon and codefendant Martinez were members of the Colonia Bakers criminal street gang, and (2) the two were stopped in territory claimed by the
Colonia Bakers. From these two facts, along with the crimes the two were accused of committing, Lopez opined that the crime was committed for the benefit of the Colonia Bakers criminal street gang and was intended to promote the Colonia Bakers. Lopez's opinion was based on his belief that because the gun and the stolen vehicle could be used to facilitate the commission of a crime, and the Colonia Bakers commit crimes, the two must have been acting on behalf of the Colonia Bakers." (Id. at p. 849.) We concluded that expert testimony about a possible reason for committing a crime was not sufficient, by itself, to establish the crime was committed with the specific intent to promote, further, or assist in criminal conduct by gang members. (Id. at p. 853.)
The facts in this case to prove the gang enhancement and special circumstance are extensive and are not comparable to the lack of factual support in the Ramon case. The argument between defendant and Hill was precipitated by Hill's expressed desire, as testified to by Lee, that he wanted to leave the gang. Hill and defendant exchanged words over this with defendant stating, "[Y]ou used to be my Loc, now you're acting like a square." As previously set forth, a "Loc" is a fellow gang member; a square is someone who does not "gang bang." As the two continued to argue and Hill complained to defendant that he was disrespecting him, defendant replied that he could disrespect Hill because he (defendant) is a "big homie." When the two were outside defendant walked up to Hill and said, "Got to disrespect you, and you're a square, and I'm your big homie." The facts were overwhelming that the dispute between Hill and defendant was gang related, involving Hill wanting to leave the gang, and the question of whom in the gang should be respecting who. The possession of the gun and the killing of Hill were clearly for the benefit of the criminal street gang. Jehle's opinion that the crimes were gang related was supported by ample evidence presented at trial and was not based on speculation.
DISPOSITION
The judgment is affirmed.
DETJEN, J.
WE CONCUR:
GOMES, Acting P.J.
DAWSON, J.