Opinion
B295741
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. DEANDRE LAMONT LOCKLIN, Defendant and Appellant.
Jenny M. Brandt, under appointment by the Court of Appeal, and Bess Stiffelman for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Blythe J. Leszkay and Yun K. Lee, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA468557) APPEAL from a judgment of the Superior Court of Los Angeles County. Mildred Escobedo, Judge. Affirmed. Jenny M. Brandt, under appointment by the Court of Appeal, and Bess Stiffelman for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Blythe J. Leszkay and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
The only issue in this case was identification. A jury found appellant Deandre Lamont Locklin guilty of one count of second degree robbery after an accomplice testified he was one of three armed robbers of a marijuana dispensary. (Pen. Code, § 211.) The prosecution corroborated the accomplice's testimony with DNA evidence from two gloves found near the scene, and call records from a telephone number associated with Locklin. The jury found true allegations of personal use of a firearm and the offense was committed for the benefit of a criminal street gang. Locklin admitted he was released on bail when the crime occurred. The court sentenced him to 37 years in prison.
The primary argument on appeal is that the DNA evidence, obtained through Y-STR DNA testing, was inadmissible under the first and third prongs of Kelly/Frey because the prosecution "failed to establish that the techniques used to calculate the statistical weight of the Y-STR evidence are generally accepted in the scientific community." (Italics added.) It was also argued the DNA samples lacked a proper chain of custody, and the testimony of a criminalist that had not done the actual testing violated Locklin's confrontation rights.
It was conclusively determined in People v. Stevey (2012) 209 Cal.App.4th 1400 (Stevey), that Y-STR DNA testing is generally accepted within the scientific community. Locklin's claim that the technique within Y-STR DNA testing for the calculation of statistical weight is a new procedure subject to Kelly/Frey was waived by not raising the issue below. The prosecution established a proper chain of custody of the DNA samples, and Locklin was not deprived of his right to confrontation as the criminalist testified as to his independent conclusions based on his own independent review of the laboratory's case file and the raw data. (People v. Barba (2013) 215 Cal.App.4th 712.)
We reject the other arguments. The call records were obtained from a legal search, it was proper for the accomplice to give lay opinion as to Locklin's gang membership based on her personal knowledge, substantial evidence supported the giving of the flight instruction and the gang enhancement true finding, and there was no prosecutorial error during closing. We therefore affirm.
FACTS
Shortly before midnight on March 17, 2015, three armed men entered through the back door of Bud Stop Collective, a medical marijuana dispensary on South Central Avenue in Los Angeles.
The store clerk was assisting a female customer when one man pointed a firearm at his head. After pushing the clerk to the floor and tying him up, the three men ransacked the dispensary taking cash, marijuana, the clerk's wallet, and other items and left by the back door. The female customer left through the same door. Because the clerk kept his eyes closed the entire time, he did not see their faces and could not identify them.
The store owner walked in right after the robbery and saw the dispensary in disarray. He ran to the back and saw his firearm was missing and the back door open. Outside were three men and a woman. A tall, skinny guy was on the metal fence; a second man and a woman were already on the other side. He saw her drop the cash register. As a third man jumped over the fence the owner was able to reach through the bars and briefly grab him. In a 9-1-1 call, the owner described the men as wearing black hoodies and rags on their faces. He could not identify them.
The store had a surveillance system. Video of the robbery was reviewed by the police. Three black men wearing dark clothing were seen robbing the dispensary while the woman stood around. They each had a weapon. One man wore red and white gloves; another wore black gloves and a red bandana over his mouth. It was impossible to identify the robbers from the surveillance video.
The female customer appeared to do something on the store's computer system before leaving through the back door. She had used her California Identification card and a physician's marijuana recommendation with her true name on it to be buzzed into the dispensary. She left behind her identification card and her cellular telephone. She was identified as Lynette Noble.
Officer Ramon Barajas of the Los Angeles Police Department was on patrol that night when he received a call about the robbery. On arriving at the dispensary, he saw it was in complete disarray. The owner told the police the robbers fled down 51st Street. Finding no suspects inside, the officer and his partner began searching for evidence. Inside the store, he recovered Noble's cellular telephone from a shelf. Outside, from around the area of the gate, he found a red glove. On the top corner of the wrought iron fence he found a black glove. Further down the street additional items from the robbery, including the store clerk's wallet and a magazine clip for a nine-millimeter handgun, were found. The wallet was returned to the store clerk. The officer placed the evidence in sealed envelopes, delivered them to the police department's property division, and booked them into evidence. He said he "wrote identifier numbers, our divisional records number, D.R. number, and took it to our property division, checked it in, and that is the entire process for booking our evidence." The D.R. number in this case was 1513-08321.
The glove was variously described. Most witnesses said it was a "red" glove. But sometimes it was described as "white," and at other times as "white and red." For consistency only, we refer to it as a red glove.
About three months later, Locklin was stopped by the police in Las Vegas on an unrelated matter and they seized his cellular telephone. As part of their investigation in this case, the Los Angeles police later obtained buccal swab DNA samples from him. Detective Michael Matsuda explained how he took the swabs. He testified that he booked them into the police property department as item numbers 38 and 39 under D.R. number 151308321. Detective Tommy Thompson took buccal swabs from an Anthony Twyman, who the police believed was also involved in the robbery. Thompson explained how he took the swabs and that he booked them into the property division of the department as item numbers 32 and 33 under D.R. number 1513-08321.
The following stipulation was read to the jury: "On June 15th, 2015, at approximately 10:30 in the evening, Officers Travis and Pryor contacted the defendant, Deandre Locklin, on Swenson Street, just north of the intersection with East Tropicana Avenue in Las Vegas, Nevada. [¶] The defendant told the officers that his name was Deandre Thomas. [¶] The officers lawfully seized the defendant's white HTC cell phone with serial number FA52BSR00864 from the defendant."
At trial, criminalist Brian Kim of the Los Angeles Police Department explained the protocol used to bring evidence to the forensic laboratory. When a request for DNA analysis is received, a request for the evidence is "submitted to our property division." From there, it is brought "into the laboratory exam room" for testing. "[E]ach case is given two numbers, one is one number that is assigned from the request, and the second is a laboratory generated case number." The first one is the D.R. number, and the other one, a laboratory information management case number, is generated in the laboratory. The D.R. number here was 151308321. Criminalist Reyna Hernandez of the Los Angeles Police Department picked up the envelope with the red glove from the property division. It was in an envelope, sealed. She documented the condition of the glove and then collected a swab from inside the glove for testing.
DNA profiles from the gloves were obtained by criminalist Hernandez. DNA profiles for the buccal swabs were developed by an unknown person in the laboratory. Kim personally reviewed the case files, the raw data, and the test results. He also personally reviewed the paperwork documenting each step of the process to make sure that everything "operated as standard" and the quality control procedures were followed. Y-STR DNA testing was done on the red glove and a partial male profile was obtained from the major contributor. "[W]e would expect to see that profile in approximately one in 6,250 unrelated male lineages or male lines." In his opinion, the DNA profile obtained from the red glove found at the scene was consistent with Locklin's profile obtained from the buccal swab. PCR STR DNA testing was done on the black glove and a profile was obtained from the major contributor. Kim stated that, statistically, the profile would be found in only one of 600 quintillion unrelated individuals. In his opinion, the profile obtained from the black glove found at the scene was consistent with Anthony Twyman's profile obtained from the buccal swab. Based on this review, he offered his "own independent conclusion" that all procedures had been properly followed and the DNA profiles obtained from the unknown samples were consistent with the known samples.
Also testifying at trial was Chad Fitzgerald, a special agent with the Federal Bureau of Investigation with the Cellular Analysis Survey Team, which helps analyze and interpret various types of telephone records that are generated from a telephone. He was provided with the authenticated records for three different telephone numbers: One was for Noble (the 213 number), one was for Locklin (the 702 number), and one was for Anthony Twyman (the 323 number). Fitzgerald testified that at 10:59 p.m., Locklin's number called Twyman's number. At 11:02 p.m., Noble's number called Locklin's number. All three numbers used cell phone towers in the vicinity of Bud Stop Collective between 10:59 p.m. and midnight. There was a gap in cell phone activity between 11:32 and 11:51 p.m., followed by Locklin's number making "a series of calls" using a nearby tower between 11:51 and 11:54 p.m. Over the following three months, there were over 900 communications between Noble's telephone and Locklin's.
Lynette Noble was called by the prosecution. She admitted she was a former gang member with Van Ness Gangsters and her gang name was "Lady Red." Although they had since been removed, she used to have various gang tattoos, including "R50" for "Rollin 50 Brim," which is the same as the Van Ness gang. Another tattoo was "RFV BSV," which stood for "Rollin 50" and "Blood Stone Villains." Others were derogatory of rival gangs, such as "CK" for "Crip Killer," and "Crabs" for "Crip." She admitted pleading guilty to the robbery and that she was serving time in prison.
She said she was at the dispensary to buy marijuana when three men came in from the back. Their faces were covered and they were wearing dark clothes. She did not help them put anything in the bags and did not take anything from the store. As they left, she ran out the back door "because that is the only way I could get out," and she "left separate," meaning not with the three men. Left behind were her identification card and "probably" her cellular telephone and marijuana recommendation.
When asked if appellant was "one of the men who robbed that store that evening," she could not "recall. I couldn't see their faces." She had known Locklin for "[a]t least five, six years" and he was her "ex." She said he was not a gang member and not a member of the Blood Stone Villains (BSV) street gang.
Because her responses were inconsistent with what she had told Detective Michael Matsuda during three recorded interviews, the prosecution began laying a foundation to impeach her. She admitted having been interviewed by Matsuda but denied or "did not recall" statements she had made to him about the crime or appellant's participation in it. The videotapes were then shown to the jury. On a break, Noble became ill. She was ordered back for another day.
Two days later she resumed testifying. She said she and Locklin had been in Las Vegas until about four to five days before the robbery. They had been in a dating relationship for some months and had come to Los Angeles together. Right before the robbery, she and Locklin were sitting in a parked car on a residential street a couple of blocks from the Bud Stop Collective. Locklin and several BSV gang members she did not personally know were talking. When asked if BSV was "the same gang that Mr. Locklin is a member of," she said, "Yes." She heard Locklin say they were "going to hit some shit," which she understood to be a robbery.
Noble was in the dispensary when three men entered from the back. She recognized Locklin as one of them "by his eyes." He did not have a firearm, but the others used theirs to pin down the clerk. She did not leave with Locklin; she left running, and kept running, until she got back to her neighborhood. But they met up a couple of hours later and he drove them to Las Vegas. Locklin's telephone number was listed as a contact in her cellular telephone as "KD52."
On cross-examination, Noble admitted her part in the robbery. She first said appellant was there wearing a black hoodie and a red bandana but later said she was unsure about his clothing. The two had met in Las Vegas about three or four months before the robbery and were both living there at the time. Locklin returned to Las Vegas, his home, after the robbery and they had a falling out a few days later. On redirect, Noble confirmed she knew Locklin because she had been in a relationship with him; he was one of the robbers.
DISCUSSION
I
Noble, an accomplice, testified that Locklin was one of the perpetrators. But "[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." (Pen. Code, § 1111.) The prosecution submitted as corroboration the DNA evidence from criminalist Kim and the call records evidence from FBI Special Agent Fitzgerald.
A. The DNA Evidence
The DNA profiles of Locklin and Twyman were created by a comparison of four samples: the unknown sample from the red glove with Locklin's known buccal swab sample, and the unknown sample from the black glove with Twyman's known buccal swab sample.
Locklin first challenges the chain of custody. The Attorney General argues Locklin did not object below and thus any claim on this ground has been forfeited because "[o]bjections related to the chain of custody are waived if not timely asserted." (People v. Baldine (2001) 94 Cal.App.4th 773, 779.) But Locklin did lodge an objection. The Attorney General counters that the objections only went to questions involving other issues. But that overlooks direct objections to chain of custody and the broad scope of the running colloquy between counsel and the court. The trial court and the prosecution were fairly informed that the objection on chain of custody included the known and unknown DNA samples collected. The claim was thus preserved.
There were two chains of custody. One involved the DNA samples taken from the gloves; the other involved the buccal swabs. When chain of custody is questioned, the burden is on the party offering the evidence to persuade the trial court that it is reasonably certain there was no alteration to the evidence. We review the trial court's decision for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 134 (Catlin).) We first address chain of custody as to the gloves.
Officer Barajas placed the two gloves into sealed envelopes, booked them into evidence pursuant to department policy and procedures, and delivered the envelopes to the police department's property division. Locklin argues the collection process was tainted because it was unclear whether he packaged the two gloves into the same envelope and whether the envelope was actually sealed. There were some inconsistencies in the officer's testimony as to everything he had done at the scene over three years earlier. However, there was substantial evidence the gloves were placed in separate, sealed envelopes and delivered to the property division without alteration, tampering, or contamination.
According to criminalist Brian Kim, the sealed envelope containing the red glove was retrieved from the property division by laboratory criminalist Reyna Hernandez in accordance with the laboratory's policies and procedures. Hernandez documented the condition of the envelope and the glove and took the sample swab of DNA from the glove. Although there was no direct evidence as to how the envelope with the black glove was retrieved from the property division, Kim had described the laboratory protocols for retrieving evidence from the property division. He independently reviewed the case files here to be sure those protocols were followed. We conclude the court did not abuse its discretion in overruling the objection as to the gloves.
We now turn to Locklin's buccal swabs. These were taken by Detective Matsuda. He explained the collection process he used and that he then booked them into the police department's property division under the D.R. number. Locklin complains that the evidence did not show whether the swabs were sealed, or what he did with them, or whether he provided the items to anyone or otherwise identified them. As they were booked by Matsuda under the correct D.R. number there was no break in the chain of custody to the property division. (Catlin, supra, 26 Cal.4th at p. 134.) The prosecution shortcut the chain of custody evidence from the property division to the laboratory and the DNA testing. However, Kim independently reviewed the case file to ensure it complied with proper procedures. Locklin argues this case is on all four with People v. Jimenez (2008) 165 Cal.App.4th 75. In that case, the person who swabbed the defendant's cheek did not testify, and no evidence was presented as to how the swabs were transferred to the Department of Justice for testing. (Id. at p. 79.) Those lacunae are not present here. There was no abuse of discretion overruling the objection as to Locklin's buccal swabs.
As to Twyman's buccal swabs, the above analysis equally applies. The only difference is that his swabs were taken by Detective Tommy Thompson, given the proper D.R. number and booked into the property division. There as no abuse of discretion overruling the chain of custody objection as to Twyman's buccal swabs. B. People v. Kelly
Locklin then complains that the DNA samples were not properly analyzed. It has long been the rule that "evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test." (People v. Bolden (2002) 29 Cal.4th 515, 544; People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly).) The prosecution must first provide proof that the technique is generally accepted within the scientific community, second that the witness testifying about the technique is an expert on the subject, and third that the person performing the test in the particular case used correct scientific procedures. (Kelly, at p. 30.)
The DNA sample obtained from the red glove was subjected to Y-STR DNA testing of the male Y chromosome. Relying on Kelly, supra, 17 Cal.3d 24, Locklin argues the evidence was inadmissible because "there was a lack of foundation as to the established procedure for conducting a Y-STR DNA test and that the appropriate procedure was used in this case." He argues this is a Kelly first- and third-prong challenge.
The laboratory used standard PCR STR DNA testing on the sample in 2015 but was unable to obtain a sufficient profile for comparison purposes. It did not use Y-STR DNA testing at that time because that method had not been validated within the laboratory for use in case work until the end of 2016. The sample was tested in 2017 using Y-STR DNA testing which is more sensitive. This time they obtained a DNA profile that linked to appellant.
1. The First-Prong Challenge Was Waived
A first-prong challenge under Kelly assumes a new scientific method has been used to obtain evidence. (Kelly, supra, 17 Cal.3d at p. 30.) It requires the prosecution to prove the new technique is generally accepted within the scientific community before the evidence may be admitted. (Ibid.) The prosecution does not have to prove this, of course, once admission of evidence based on the new scientific technique has been approved in a published appellate court opinion. (See id. at p. 32.)
Here, Locklin recognizes that Y-STR DNA testing is generally accepted within the scientific community. (See Stevey, supra, 209 Cal.App.4th at p. 1414.) He complains instead that the prosecution "failed to establish that the techniques used to calculate the statistical weight of the Y-STR evidence are generally accepted in the scientific community . . . ." (Italics added.) He argues that for profile comparison purposes, "there remains debate within the scientific community as to how to calculate the statistical weight of Y-STR evidence."
There are three problems with this argument. First, Locklin did not object below on first-prong grounds; rather, the objection was made on the third prong, that the expert had not shown correct scientific procedures were used in this case. "There was no foundation for this, basis, for this profile. We know it is Y-STR testing, but we don't know exactly what he did, what procedure that he utilized. So there is no foundation . . . ." The failure to raise the specific objection on first-prong grounds waives the claim. "Having failed to object on Kelly/Frye grounds to the admission of the evidence . . . defendant has not preserved his claim." (People v. Ochoa (1998) 19 Cal.4th 353, 414.)
Second, he failed to identify for the court during trial the "new technique" he wanted to challenge. In Stevey, the appellate court upheld the trial court's refusal to hold an evidentiary hearing on the first Kelly prong; i.e., to determine whether Y-STR testing, and the methodology used to interpret the results of the DNA samples, were generally accepted within the relevant scientific community. (Stevey, supra, 209 Cal.App.4th at p. 1411.) Stevey concluded that Y-STR DNA testing is generally accepted, and that acceptance necessarily includes acceptance of the generally accepted techniques used to calculate the statistical weight of Y-STR profiles. (Ibid.) Having failed to identify the use of a new technique for statistical calculations, any first-prong challenge fails.
Locklin then hypothesizes that criminalist Brian Kim improperly used the "product rule" to calculate the probability of a match. In Stevey, the court recognized that experts "employ various statistical methods" to interpret the results with STR and Y-STR analyses. (Stevey, supra, 209 Cal.App.4th at p. 1407.) It then noted that while experts use the "product rule" for STR analysis, "[t]he product rule cannot be used to calculate the probability of a match with the results of a Y-STR analysis, however, because the traits are not inherited independently." (Ibid.) But Kim never said he used the product rule. He testified instead that there is a standard protocol for Y-STR DNA analysis in the forensic field and the laboratory follows that standard. Although Kim said he used a "statistical calculation" in making the profile comparisons, nothing in the record suggests he used any technique different from that which is generally accepted within the scientific community.
Defense counsel was sensitive to the possible Kelly/Frey issue. On cross-examination, criminalist Kim was examined about the statistical probability method used for comparison of the profiles. He was questioned about the Y-STR database and its limited number of profiles and asked how that affected his calculations. But there was no evidence that would suggest Kim used a new procedure not generally accepted within the scientific community.
Locklin's attempt to rectify the omission on appeal by citing the unpublished federal ruling in United States v. Russell (D.N.M. 2018) 2018 WL 7286831, and by referencing opinions on DNA typing made in 4 Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony (2019-2020) section 30:30 is not enough. There is nothing compelling about either authority in the context of this appeal. The New Mexico case relates to a discrete issue not relevant here. Although Faigman argues issues raised by Y-STR DNA testing are new and courts are only now beginning to grapple with the complex issues presented, he only suggests that, in his opinion, courts should hold substantive hearings on the testing procedures. (Faigman, § 30:30.) That may be good advice elsewhere in the nation, but in California the issue is settled. To the extent Faigman and others might be suggesting that the consensus of the scientific community about statistical calculations involving Y-STR DNA testing may have changed, that would require a proper objection and the introduction of new evidence. None was provided.
The issue was waived.
2. The Third-Prong Challenge
On a third-prong Kelly challenge, the only issue is "whether the procedures actually utilized in the case were in compliance with that methodology and technique, as generally accepted by the scientific community." (People v. Venegas (1998) 18 Cal.4th 47, 78 [italics in original].)
Y-STR DNA testing looks only at the Y chromosome, or the male part of DNA, and at multiple parts of that very specific location. Criminalist Brian Kim testified that the laboratory followed the same procedures for extracting and purifying DNA it uses in DNA cases generally. But in this case the laboratory was looking to see how much male DNA was present in the sample from the red glove. It identified the major contributor, generated copies of the male DNA, and obtained a partial profile.
Kim has been at the Los Angeles Police Department Forensic Science Division for seven years and testified as to the protocol used for DNA testing. There is a standard DNA testing method used for DNA analysis in the forensic field. This procedure is utilized in the Los Angeles Police Department laboratory, and it consists of a four-part protocol in the laboratory. There are various controls in place to ensure that a sample is not contaminated and that only one sample is processed at a time. Everything is reviewed once at the technical level by a peer or another forensic scientist. The lab report and all the paperwork are reviewed twice, once by another criminalist and then by either a different criminalist or a supervisor. Although the testing kits or the chemistry may be slightly different for Y-STR DNA testing, "the concepts are exactly the same." Kim reviewed the laboratory's file and documents and determined that all "standard generally accepted testing procedures were followed" in this case.
Kim compared the unknown male DNA profile from the red glove with the known buccal swab profile and found them consistent. He also did a "statistical calculation." Based on that, Kim stated that, "we would expect to see that profile in approximately one in 6,250 unrelated male lineages." Attached to the laboratory report was a database the laboratory uses to perform statistical calculations for comparisons in cases where Y-STR is used. Kim testified that the database for Y-STR is different than it is for STR; they are not the same profiles and are used for different purposes. The database for STR is managed by the Federal Bureau of Investigations and the Y-STR database is managed by the National Center for Forensic Science at the University of Central Florida. The Y-STR database is used to determine the estimated frequency. It has a total database size of 28,425, and a database size of 6,896 for African Americans.
Locklin argues that does not satisfy Kelly's third-prong analysis because Kim had no personal knowledge of whether the protocols were applied in this case. Kim admitted he did not retrieve the sample from the property division, swab the gloves, or do the test, but he reviewed the "raw data" and drew his own independent conclusions based on that. He further testified that the case file contains the complete paperwork where every step is documented. He is able to review everything from the collection process to evidence documentation to the raw data. This process is part of the laboratory's standard operations, and is a procedure that is generally required by laboratories throughout the world.
The court did not abuse its discretion in allowing this evidence. What weight to give that evidence was properly left to the jury. (People v. Cordova (2015) 62 Cal.4th 104, 128.)
C. Hearsay and Confrontation Rights
Kim testified that the retrieval and testing of the DNA samples was done by another criminalist in the laboratory. However, he independently reviewed the laboratory's case file and the raw data and provided the jury with his own, independent opinion on the profile issues. Kim detailed his background, training, and experience. He explained that the case files contained all paperwork in the matter and any qualified scientist could look at the file and determine what procedures had been used.
Locklin objected on the ground this was inadmissible hearsay and violated his rights under the confrontation clause and current Supreme Court precedent. He asserted that the technician who actually conducted the test had to appear and be made available for cross-examination. The objection was overruled.
In People v. Barba (2013) 215 Cal.App.4th 712, this division held that the testimony of an expert who independently reviewed the data and independently drew his own conclusions from test results obtained by another criminalist within the laboratory was admissible. (Id. at pp. 742-743.) Locklin suggests case law has evolved and Barba is no longer good law. But in People v. Ogaz (2020) 53 Cal.App.5th 280, the court went through the most recent cases. In its case, it found the drug test results to be testimonial and that a witness that was merely a "conduit" for statements made in the report could not testify as to the test results obtained by another criminalist. (Id. at pp. 293-294.) But citing Barba and other similar cases, it commented, "[t]hat wouldn't be a problem if [the witness] had formulated his own independent opinions based on the data that [the criminalist] produced during the testing process." (Id. at p. 293.) In that situation, the court said the strictures of the confrontation clause are met, and the defendant has the opportunity to cross-examine the witness offering the opinion. (Ibid.)
Barba is still good law; and Locklin was not denied his right to confront and cross-examine his accusers.
After the matter was submitted, Locklin requested permission to address People v. Turner (2020) 10 Cal.5th 786 and People v. Azcona (2020) 58 Cal.App.5th 504, two recently filed opinions. We invited, and have reviewed, the supplemental briefs submitted by the parties and find neither case is apt. In Turner, the defendant was convicted, in part, of killing a fetus. When the case was tried the prosecution was tasked with proving the fetus was viable. Because the expert did not perform the autopsy, the Supreme Court held that her reliance on observations made by the non-testifying witness in the autopsy report (i.e., the weight and gestational age of the fetus) in order to opine that the fetus was viable violated People v. Sanchez (2016) 63 Cal.4th 665. (Turner, at pp. 821-822.) In Azcona, the expert testified that another, non-testifying firearms expert had reviewed and was in agreement with the expert's conclusions. The Court of Appeal held that this testimony allowed the prosecution to introduce case-specific facts and the opinion of the non-testifying expert without exposing that witness to cross-examination in violation of Sanchez and Crawford v. Washington (2004) 541 U.S. 36. (Azcona, at pp. 514-515.) Here, Dr. Kim did not rely on any case-specific hearsay. He performed the analysis on his own and gave his own, independent opinion as to what that analysis showed.
II
The Call Records Were Properly Admitted
The call records of Locklin's cellular telephone number, authenticated by the telephone company's custodian of records and analyzed by FBI special agent Chad Fitzgerald, served to corroborate the accomplice's identification of Locklin as one of the robbers. They showed that the telephone numbers associated with Locklin, Noble, and Twyman were communicating with each other in the area of the Bud Stop Collective before and after the robbery. The records were obtained pursuant to a search warrant issued by the Los Angeles Superior Court on July 20, 2017.
Locklin argues the call records were obtained as the result of an illegal search of his telephone by the Las Vegas police on March 31, 2016; and, as the fruit of the poisonous tree, should not have been admitted. In his view, it was the illegal search that confirmed the "702" number was his and caused the Los Angeles police to seek the July 20, 2017 search warrant. At the suppression hearing, the prosecution conceded the March 31, 2016 Las Vegas search was illegal. It appears the Las Vegas police had obtained a Nevada search warrant for Locklin's telephone on August 18, 2015, but it had not downloaded the telephone number as part of that search. The later warrantless search on March 31, 2016, which obtained the number, was thus illegal. While conceding the Las Vegas search was illegal under Riley v. California (2014) 573 U.S. 373, 387, the Attorney General contends the police already had his telephone number. And, in any event, any illegally seized evidence was still admissible under the inevitable discovery doctrine.
Locklin's request to augment the record on appeal with the transcript of the hearing held on October 24, 2017, is granted.
The relevant timeline is as follows: The robbery occurred March 17, 2015. Locklin was arrested June 18, 2015, in Las Vegas on an unrelated charge. The parties stipulated the Las Vegas police had legally seized his cellular telephone three days earlier when they contacted him on an unrelated matter. On August 18, 2015, the Los Angeles police served a search warrant on Sprint for a "702" number they believed was associated with Locklin. Sprint did not produce any call records.
Noble was arrested December 14, 2015, on an unrelated warrant. On December 30, 2015, during an interview with Matsuda, she identified "KD" as one of the men who robbed the Bud Stop Collective. She was shown a six-pack and identified Locklin as "KD." She then circled his picture. Noble was arrested January 4, 2016, for the robbery and gave the police consent to search her cellular telephone. As a result of that search, the police recovered a "702" number for "KD52." On March 30, 2016, Matsuda confirmed with Noble that "KD52" was the "KD" who was one of the robbers. The Las Vegas police were then contacted for any information they had as to telephone numbers for Locklin. It was in response to this request that the Las Vegas police conducted a warrantless, and illegal, search of his telephone.
Locklin concedes the police had a strong suspicion he was involved in the robbery after interviewing Noble in December 2015. In fact, she had told them he was one of the men that had robbed the dispensary that night; and the police had discovered that she had saved his "702" number in her contacts under "KD52." In short, the Los Angeles police already had Locklin's telephone number. He complains, however, that because they did not "use" that information until they had "confirmed" his number through the illegal search, any later obtained evidence was the fruit of the poisonous tree. We are unpersuaded.
The Attorney General asserts this issue was forfeited by defendant's failure to object at trial to the admission of the evidence. The argument is based on an overly restrictive reading of the record of the suppression hearing. The matter, and the arguments that have been raised on appeal, were fully addressed. We conclude the issue has not been forfeited under the circumstances here.
Evidence obtained illegally will not be excluded as fruit of the poisonous tree if the knowledge of the particular facts were obtained from an independent source. This is known as the "independent source doctrine." (People v. Superior Court (Corbett) (2017) 8 Cal.App.5th 670, 681-682.) Here, the Los Angeles police had Locklin's telephone number and evidence that he was a perpetrator of the robbery months before the illegal search. They had also served a search warrant on Sprint for that number. Although the later illegal search may have "confirmed" this was Locklin's number, that did not undermine the fact the police had obtained his telephone number and possible involvement in the crime from an independent source.
Even if the call records had not been independently sourced, they were admissible under the "inevitable discovery doctrine." That doctrine provides that, "Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." (Murray v. U.S. (1988) 487 U.S. 533, 539 [italics in original].) " 'As this is essentially a question of fact, we must uphold the trial court's determination if supported by substantial evidence.' " (People v. Fayed (2020) 9 Cal.5th 147, 184.) Again, the police had Locklin's telephone number and his possible connection to the robbery, and they had already served a search warrant on the telephone number which required a showing of probable cause. Substantial evidence supports the trial court's determination; the call records would ultimately have been discovered.
III
The Flight Instruction Was Properly Given
Over the objection of defense counsel, the court instructed the jury with CALCRIM No. 372. It provides: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
The general rule is clear: "If there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt,' then it is proper to instruct on flight." ([Pen. Code,] § 1127c.)" (People v. Mason (1991) 52 Cal.3d 909, 943.) Some earlier cases had suggested that a flight instruction was never proper when identity was a contested issue, but Mason rejected them. Where identity is an issue, as here, the flight instruction may be given but only where "there is substantial evidence of flight by the defendant apart from his identification as the perpetrator, from which the jury could reasonably infer a consciousness of guilt. [Citations.] Thus, for example, where there is independent evidence of flight as to which defendant's identity as the fleer is not in dispute . . . ." (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1476 [italics omitted].)
Here, the flight instruction was given because Noble testified she met up with Locklin within hours of the robbery and he drove them to Las Vegas, and a couple of months later when stopped by the Las Vegas police on an unrelated matter he gave a false name. He told them his name was "Deandre Thomas" even though his true last name is Locklin.
Locklin argues that because he was living in Las Vegas at the time, a return home did not support a flight instruction. "Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt." (People v. Turner (1990) 50 Cal.3d 668, 695 (Turner) [italics in original].) There was some evidence he lived in Las Vegas at the time of the robbery. On cross-examination, Noble claimed that they met about three to four months before the robbery and were both living in Las Vegas at the time; and, the city was Locklin's home. This contradicted her earlier testimony on direct that they had met instead in "[her] neighborhood" on 54th Street in South Los Angeles, but she never contradicted her claim that Locklin was living in Las Vegas at the time of the robbery.
Even so, "the circumstances of departure from the crime scene" may justify a flight instruction. (Turner, supra, 50 Cal.3d at p. 695 [italics in original].) Noble testified the two of them left for Las Vegas within hours of the robbery. Based on the timeline of the crime, this means they left around 2:00 or 3:00 in the morning. No separate reason was given for this sudden departure. But it provided some evidence that, if believed by the jury, Locklin fled to Las Vegas within a few hours of the crime.
There is a possible discrepancy between Noble's testimony and the cellular telephone records. FBI special agent Chad Fitzgerald testified that their telephones (the "213" and "702" numbers) were still in the Los Angeles area up until March 20, 2015, or three days after the crime. According to him, the records showed that those two telephones were using the same cell phone towers at the same time on the road to Las Vegas on March 20.
In People v. Pensinger (1991) 52 Cal.3d 1210, the defendant argued he was just passing through the city where the crime occurred and on his way to Texas so "the fact that he was discovered in Texas two weeks after the crime was not evidence that he had fled from the scene with any consciousness of guilt." (Id. at p. 1244.) In rejecting that argument, the Supreme Court pointed out that because there was "some evidence" the defendant planned to stay in the city, the jury, after deciding he was the perpetrator, "could have inferred that his sudden change of plans showed consciousness of guilt." (Ibid.) Here, there was some evidence Locklin and Noble had been staying in Los Angeles for a few days and then left for Las Vegas in the early hours of the morning, right after the robbery was committed. If the jury concluded that Locklin was one of the perpetrators, it could then infer, as in Pensinger, that the sudden departure showed a consciousness of guilt.
The flight instruction was not given simply because the perpetrators fled the scene; rather, it was given because there was some evidence from which the jury could conclude that the later flight to Las Vegas, a few hours after the crime, evidenced a consciousness of guilt. It was not error to give the flight instruction.
IV
The Gang Evidence
The information included a gang enhancement allegation that the offense was committed for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1)(C).) Noble, a former gang member, testified that Locklin was a Blood Stone Villain (BSV) gang member. Los Angeles Police Officer Dana Smith, who worked gang enforcement and was responsible for investigating the BSV gang, testified that photographs showed Locklin was a gang member and, in his opinion, the robbery was committed for the benefit of BSV.
Locklin complains that Noble should not have been allowed to give a lay opinion that he was a BSV gang member because her opinion lacked foundation. He also argues no substantial evidence supported the gang enhancement allegation finding.
A. Lay Opinion of Gang Evidence
Any claim that evidence was erroneously admitted is waived unless a timely and specific objection or motion to strike was made thereto in the trial court. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) Noble was asked at trial whether Locklin was a gang member. No objection was made and thus the objection was waived.
Defense counsel had initially challenged Noble's testimony in a pretrial motion in limine to exclude portions of her recorded interview with Detective Matsuda on December 30, 2015, including any reference to gang affiliation, on the ground that it lacked foundation. Noble had told Matsuda that appellant was a BSV gang member. But a pretrial objection not finally ruled on does not preserve the issue on appeal. (People v. Holloway (2004) 33 Cal.4th 96, 133 (Holloway).) Here, the trial court did not rule on the motion in limine, telling counsel it would wait for the objection. "So now we go on to the next general question that [defense counsel] was discussing with regard to knowing whether he was a gang member.
"Again, that could be lay opinion. That could be perception. I don't know what it is. It depends on how it is presented, but I think it is appropriate since the 186.22 (b)(1)(C) is alleged therefore the reference to the gang is permissible and relevant depending on how it is brought out in the case in chief.
"Of course, [defense counsel] will object I am sure whenever there is an issue, and we can address it at that time.
"[DEFENSE COUNSEL]: Thank you."
Later in the same hearing, the court again told defense counsel the evidence was relevant because of the gang enhancement allegation but its admissibility would depend on how it was presented in the prosecution's case "and how the foundation is laid for that individual . . . ."
The court's ruling on the in limine motion was not final and thus defense counsel's failure to renew the objection at trial waived the issue. (Holloway, supra, 33 Cal.4th at p. 133.) Even so, Locklin was not deprived of fundamental due process. "A lay witness may testify to an opinion if it is rationally based on the witness's perception and if it is helpful to a clear understanding of his testimony. (Evid. Code, § 800.)" (People v. Farnam (2002) 28 Cal.4th 107, 153.)
Noble testified she was a former gang member with the Van Ness Gangsters and had worn gang tattoos, including one with "BSV," that stood for Blood Stone Villains. She always "[hung] out with gangsters," some of the gangsters were members of BSV, and she "got to know them really well." She had dated and been in relationships with gang members, had been in an intimate relationship with Locklin for months, and had heard him talking with others that she knew to be BSV gang members while they and Locklin planned the robbery. She also admitted (after initially denying it) that as a former gang member she was scared because by testifying she was possibly subjecting herself to retaliation.
Relying on People v. Ramirez (2016) 244 Cal.App.4th 800, Locklin argues that there was no foundation for Noble's testimony because she did not testify as to the facts supporting her opinion. Ramirez involved an expert witness who failed to provide sufficient facts to connect the predicate offenses of a subset gang to a larger gang. (Id. at p. 816.) Other cases cited by Locklin, such as Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, involved experts that based their opinions on assumed facts for which there was no evidentiary support in the record. (Id. at p. 1117, 1119-1121.) Here, on the other hand, Noble testified as to her former experiences as a gang member, as to the fact she used to have a tattoo with BSV on it, and as to her interactions with known BSV gang members. She had also been in an intimate relationship with Locklin. That personal perception was sufficient to provide a rational foundation and basis for her opinion that Locklin was a BSV gang member. (People v. Becerrada (2017) 2 Cal.5th 1009, 1032.)
Finally, the suggestion that Noble's opinion was improperly admitted because it could have been based on hearsay rather than personal knowledge is not compelling. We must presume all intendments in favor of the judgment, and " ' "on matters as to which the record is silent, error must be affirmatively shown." ' " (People v. Giordano (2007) 42 Cal.4th 644, 666, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Here, Noble told the jury about her personal experiences with known BSV gang members including Locklin. Nothing in her testimony suggested that she learned of Locklin's affiliation with the BSV gang through inadmissible hearsay instead. Nor did the defense object at trial on that ground. Locklin has failed to affirmatively show error on this ground. We may not now speculate as to what other evidence might have come out under more intense direct examination or rigorous cross-examination. People v. Anthony (2019) 32 Cal.App.5th 1102, 1139—1140.
Noble's lay opinion was properly admitted.
B. Substantial Evidence Supported the Gang Enhancement
The jury found true the gang enhancement allegation. A sentence enhancement under Penal Code section 186.22, subdivision (b)(1), applies to "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." "There is rarely direct evidence that a crime was committed for the benefit of a gang." (People v. Miranda (2011) 192 Cal.App.4th 398, 411 (Miranda).) However, " 'Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.' " (Id. at p. 412; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
Los Angeles Police Dana Smith had recently worked in the gang enforcement detail. For more than two years he was focused on and "responsible for" Blood Stone Villains and two other street gangs.
Smith described the BSV street gang. There are 187 documented members and most carry a BSV tattoo. They have a hand sign of "5-deuce," identify with the number "52," and the color red. The primary activities of BSV are "take-over robberies, 211 PC, [and] vehicle thefts." He had investigated crimes committed by BSV gang members and knew of cases where BSV members committed crimes with members of other gangs. The scene of the robbery, Bud Stop Collective, was in BSV gang territory. It is directly across the street from a fast food place where the gang members congregate and hang out. He conceded he did not know Locklin or whether he had gang tattoos.
He was shown several photographs that had been retrieved from Locklin's telephone. In one photograph, written in red on the front of a black hat, was "Let Villian [sic] B The Reason." In another, written in red on the back of a hat, was "Happy 5 Duse Day." There was also a photograph of the man in a vehicle making a sideways "V" sign with his hand. There was no dispute that the photographs were of Locklin. Smith stated that these photographs, taken as a whole, showed Locklin was a gang member. Smith also referred to a 2016 conviction for attempted murder with a gang allegation admission for Anthony Twyman. In his opinion, Twyman was also a BSV gang member.
These photographs were retrieved by a computer scientist with the Las Vegas Police Department; there is no suggestion they were illegally obtained.
Smith opined that the robbery of Bud Stop Collective was committed for the benefit of BSV street gang. Locklin points out, however, that, "Not every crime committed by a gang member is gang related." (People v. Perez (2017) 18 Cal.App.5th 598, 607.) He emphasizes here the following omissions: No gang signs were thrown, the gang's name was not called out, and there was no evidence that the proceeds went to the gang. But there is no requirement that a gang enhancement allegation may be supported only if gang signs were thrown, gang names yelled, and the prosecution can trace the proceeds from the crime to the street gang. "There is rarely direct evidence that a crime was committed for the benefit of a gang." (Miranda, supra, 192 Cal.App.4th at p. 411.) It is sufficient if the crime was committed by a gang member in association with other known gang members. (Id. at p. 412.) As the Supreme Court stated: "In sum, if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (People v. Albillar (2010) 51 Cal.4th 47, 68 (Albillar); see People v. Franklin (2016) 248 Cal.App.4th 938, 949.)
Here, there was substantial evidence Locklin and Twyman were members of BSV street gang, the crime was planned with other gang members, the crime was committed in the heart of the gang's claimed territory, and at least one perpetrator wore a red bandana. That evidence supported the true finding under Albillar, supra, 51 Cal.4th at page 68. Locklin attempts to compare the evidence in this case with the evidence relied in other cases, such as In re Daniel C. (2011) 195 Cal.App.4th 1350, People v. Ochoa (2009) 179 Cal.App.4th 650, and People v. Albarran (2007) 149 Cal.App.4th 214, and suggest that more was required. But none of those cases suggests that the fundamental rule of Albillar requires more than what was shown here.
Locklin argues that no substantial evidence supported the finding he was a member of BSV. But Noble—a former gang member who used to have a BSV tattoo, who was an accomplice to the crime, and who used to be in an intimate relationship with Locklin—testified he was a gang member of BSV street gang. To be sure, there were inconsistencies in her story, and initially she told the jury he was not a gang member. But in the end, she testified that he was. It was a question of fact for the jury to determine whether they believed her. Her statement that Locklin was a gang member was substantial evidence from which the jury could find that he was.
Finally, Locklin cites Johnson v. Montgomery (9th Cir. 2018) 899 F.3d 1052, for the proposition that for gang members to act in concert, they must have a "common gang membership." (Id. at p. 1057.) Because Noble was from Van Ness Gangsters, that chain was, he asserts, broken. Noble had worn a tattoo with BSV in it; the gang expert said the gang would not permit a non-member to wear gang symbols. She testified as to her acquaintance with BSV gang members and the closer relationship between her and Locklin at that time. And, unlike Albillar or Johnson, there was evidence from an expert witness that in some cases BSV members would commit crimes with members of other gangs. The "rule" in Johnson does not apply here.
V
There Was No Prosecutorial Error
Locklin argues the prosecutor committed error during closing argument: He argued facts not in evidence and misstated the law. At the start of closing argument, the prosecutor made the following overview remarks. The specific areas complained of are italicized.
"There's broad areas, and I am going to talk about them specifically, but Ms. Noble, her testimony alone coming in here and saying that it is him, if you believe those portions of her testimony, that is enough to convict him.
"You also have to evaluate Ms. Noble's testimony and look for corroboration of her statements.
"We are going to go over not only the other things that prove that it is Mr. Locklin, but also those same things corroborate Ms. Noble and the statement that she gave.
"So there's Ms. Noble, her relationship with him and what she said when she testified. There's also cell phone evidence that is consistent with him being a perpetrator of this crime, and that corroborates Ms. Noble.
"DNA evidence consistent with him being a perpetrator of this crime and his connections with Mr. Twyman. We know there should be no doubt in your head that Mr. Twyman was also involved in the crime.
"Mr. Twyman was someone who was connected with the defendant, right around the time of the robbery. Their phone calls, only around the time of the robbery.
"The fact that he was arrested with a similar gun, the fact that his DNA was found in evidence that was recovered at that scene, should be no doubt in your mind that he was involved, and he is connected with Mr. Locklin."
A. There Was No Misstatement of Law
Locklin first focuses on the italicized part where the prosecution states that if you believe Ms. Noble's testimony, that is enough to convict.
Viewed in isolation, that misstates the law. Penal Code section 1111 provides that, "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Given Noble was an accomplice, the jury could not convict appellant based solely on her testimony unless it was corroborated.
Viewed in context, however, the prosecutor's statement did not misstate the law, mislead lead the jury, or create a different standard of proof. (People v. Cole (2004) 33 Cal.4th 1158, 1203 [statements of prosecution are reviewed in context of whole argument].) In the sentences immediately following, the prosecutor spoke of the DNA evidence and the call records that corroborated Noble's testimony that Locklin was one of the perpetrators. He later said, "Next, to connect the defendant to the crime, but also to corroborate Ms. Noble's statement was the cell phone evidence." In rebuttal, the prosecution added, "And how reasonable is her testimony when you consider it with all the other evidence in the case? That is the crux of understanding Ms. Noble's testimony is that you just don't take her word for it. You shouldn't just take her word for it. You should look for corroboration. You should look at all the evidence as a whole and say what else proves that she was telling us the truth?"
The general fallacy of carving out a single sentence and claiming, without context, that it demonstrates error is underscored by a comment the prosecution made earlier in closing: "I think even Mr. Locklin was affected by this crime even though he wasn't there at the moment that it happened."
Viewed as a whole, the record does not show prosecutorial error.
B. There Was No Reference to Facts Outside the Record
Locklin then argues the prosecution improperly argued "his DNA" was collected from the red glove and this proved he was one of the robbers. Relying on People v. Hill (1998) 17 Cal.4th 800, he insists this was clear misconduct. In Hill, the prosecution was found to have misstated the evidence by improperly referring to blood on a knife as the "defendant's" when the evidence only showed it was type O blood, the same type as defendant's. (Id. at pp. 823-824.) Locklin argues the same analysis applies to a prosecution's claim that the DNA evidence was "his DNA." This argument fails for two independent reasons.
Locklin misreads the record. When the prosecution argued "his" DNA was found in evidence recovered at the scene, it was referring to Twyman's DNA from the black glove. The prosecution was trying to suggest that Twyman's presence at the scene, proved through the DNA, was indirect evidence Locklin was there, as well.
Second, at no time did the prosecution state during closing argument that the DNA found in the red and white glove was Locklin's. Rather, the jury was told the DNA evidence was "consistent" with his DNA. "When they analyzed that DNA, they found DNA from Mr. Locklin's familial male line consistent in that glove, on the interior of that glove, from the interior swab of that glove, and as Brian Kim testified to you, that it was consistent with Mr. Locklin's DNA." "And when he talked to you about those databases, what he was specifically talking to you about was the statistical weight to give to the conclusion that his profile was consistent with the profile that was observed in that evidence sample. Because we know what his profile is, and we're comparing it to the swab that came out of that red and white glove. And when he compares those two things together, he says it's consistent with Mr. Locklin's DNA. But because he's a scientist, they don't come in here and say 100 percent we're positive it's him. All of their conclusions have a statistical weight that they give it, and that's what he's talking about DNA profiles in the database."
There was no prosecutorial error.
DISPOSITION
The judgment is affirmed.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
GRIMES, Acting P. J. Stratton, J., Dissenting.
Deandre Locklin orchestrated a robbery of a marijuana dispensary with three others. He traveled to Los Angeles from his home in Las Vegas with his girlfriend/co-robber to commit the crime. The estimated take from the robbery was $30,000 in cash and drugs. He was charged with and convicted of second degree robbery. The Information also alleged a gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1), that is, that the robbery was committed for the benefit of a criminal gang. The jury found the gang allegation true.
All further undesignated statutory references are to the Penal Code.
I dissent from the majority's conclusions that the evidence was sufficient to support the gang enhancement here and that the lay opinion testimony of girlfriend Lynette Noble was properly admitted. The majority upholds a gang enhancement under section 186.22, subdivision (b)(1) based on little more than a thread of evidence, not the substantial evidence required by law.
First, Lynette Noble's "lay opinion" that appellant was a gang member. This is the only direct evidence of appellant's alleged gang membership. In a motion in limine filed before trial, appellant objected on the ground that her testimony lacked foundation. The trial court did not rule, stating admissibility would depend on how the evidence was actually presented at trial. The witness did testify that appellant was a gang member - without providing any factual foundation for her opinion just as appellant had predicted in his prior objection to the court. I would not find the objection waived. Appellant timely objected to the testimony in a properly made motion in limine, upon which the court should have ruled, if only to say "The objection to the evidence in its present form is sustained/overruled." Given that the testimony was in the same form to which appellant had objected, I would not put the onus on appellant to object again in front of the jury or risk forfeiture. Just by declining to rule on a properly filed motion, the trial court put the onus on appellant to object again. Appellant's objection put the People and the trial court on precise notice about the lack of evidentiary foundation. We should not permit the trial court to erase the objection from the record just by declining to rule. The trial court had a duty to rule on the motion, not to "invite," "direct," "expect," or "instruct" appellant to renew it. (See People v. Demetrulias (2006) 39 Cal.4th 1, 20-21 [objection must adequately alert the trial court to the nature of the anticipated evidence and the specific basis on which exclusion is sought]; Grossblatt v. Wright (1951) 108 Cal.App.2d 475, 481 ["A liberal rule of construction should be applied in determining whether an exception was taken. Courts exist to do justice. Litigants should be saved from the consequences of an oversight by counsel where it can be done in furtherance of justice and consistent with established rules of law."].) Where, as here, everyone was on proper notice, nothing more should be required. Caselaw that allows the trial court to so erase a properly filed objection by declining to rule on it should, in my view, be reexamined.
At trial, Noble simply declared appellant was a gang member, without testifying about how she knew this information, the fundamental requirement for admissible lay opinion testimony. The People neither asked her how she knew this information nor introduced other evidence that would establish an acceptable basis for her opinion. Importantly, we have no idea if she based this opinion on personal knowledge or on what someone else told her. The trial court abused its discretion in allowing the testimony under these circumstances.
Evidence Code section 800 covers lay opinion testimony. It limits lay opinion testimony to an opinion that is "(a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." "The meaning of subdivision (a) is clear: 'A witness who is not testifying as an expert may testify in the form of an opinion only if the opinion is based on his own perception.' " (People v. McAlpin (1991) 53 Cal.3d 1289, 1306.) "Perception" is defined as the process of acquiring knowledge " 'through one's senses' (Evid. Code, § 170), i.e., by personal observation." (McAlpin, at p. 1306.) The decision whether to permit lay opinion rests in the sound discretion of the trial court. (People v. Medina (1990) 51 Cal.3d 870, 887.) However, the opinion must be supported by a proper foundation. (People v. Navarette (2003) 30 Cal.4th 458, 493.) Opinion testimony is only as good as the facts upon which it is based. (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1136-1137 ; People v. Ramirez (2016) 244 Cal.App.4th 800, 816 (Ramirez).)
When there is error in admitting lay testimony, the error is harmless unless it is reasonably probable the jury would have reached a result more favorable to appellant had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Noble was not asked nor did she volunteer how she knew appellant was in a gang. She just baldly stated he was a gang member. She then added that shortly before the robbery, she overheard him in Las Vegas, where they lived, talking on the telephone to "gang members," but she admitted she had no idea with whom he was actually speaking. Just as she had no idea to whom appellant was talking, we have no idea to this day on what she based her testimony. She belonged to a different gang than the Blood Stone Villains and had the tattoos and moniker to prove it. She "h[u]ng out" with Blood Stone Villains and knew a handful of them, but not co-defendant Anthony Twyman, also an alleged gang member. Noble testified that she had known appellant for at least five years. She started a relationship with him "some months" before the March 2015 robbery and ended the relationship in December 2015. He was her "ex." During those some months she was "with" him, did she see gang tattoos or gang attire? Did she know if he had a gang moniker? Did he say something in that telephone call that indicated he was in a gang? We don't know. None of this establishes how or why she believed appellant was a current or even former gang member; at most, her testimony established her ties to her own gang and her lack of familiarity with the Blood Stone Villains and its members.
Given the otherwise thin evidence in support of the gang enhancement, Noble's testimony purporting to establish appellant's gang membership was the only evidence, other than an undated photograph of him in a hat with gang insignia, connecting appellant to a gang. Admitting the testimony that appellant was a gang member without requiring the People to establish how Noble knew that information was an abuse of discretion. I conclude it is reasonably probable the jury would have rejected the gang enhancement without her testimony of appellant's gang membership. On that ground I would reverse the gang enhancement.
Nevertheless, even with Noble's testimony of appellant's gang membership, the evidence in support of the gang enhancement was not substantial. We must remember: "Not every crime committed by a gang member is gang related." (People v. Perez (2017) 18 Cal.App.5th 598, 607 (Perez).) The People's evidence consisted of:
• an undated photograph of appellant in a hat with "Villain" and "B" in red on it;
• another undated photograph of appellant in a red hat which is the type normally worn on May 2, BSV day;
• Noble's unfounded testimony that appellant was a member of the Blood Stone Villains;
• Noble's testimony she heard him talking about doing a robbery with someone she said was a gang member, although she did not know with whom he was speaking;
• the robbery was committed in Blood Stone Villain territory across the street from a fast food place which gang members frequented;
• one year after this robbery, one of the robbers, Anthony Twyman, admitted to being a member of the Blood Stone Villain gang in a murder prosecution; before this admission, he was unknown to the People's gang expert Officer Smith and to Lynette Noble;
• Blood Stone Villain is a gang that commits crimes like robberies of marijuana dispensaries, armed robberies, murder, and possession of firearms by felons;
• Red is the gang's unifying color, but occasionally members wear blue and appellant wore a blue shirt during the robbery.
So, we have two undated photographs of appellant wearing a red hat, one with gang initials; a robbery of a marijuana dispensary committed within BSV territory; alleged gang membership at some unspecified time; a conversation by appellant with purported and unidentified "gang members" about doing a robbery; and a co-robber who admitted gang membership a year later.
What we don't have is evidence sufficient to satisfy what the law demands. Let's turn to that all-important factor.
To support a true finding on a section 186.22, subdivision (b) gang enhancement, the People must prove (1) the defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang, and (2) the defendant intended to promote, further, or assist criminal conduct by gang members. (CALCRIM No. 1401; People v. Albillar (2010) 51 Cal.4th 47, 59 (Albillar).)
We review the record in the light most favorable to the judgment to determine whether it contains substantial evidence. (Albillar, supra, 51 Cal.4th at pp. 59-60.) Substantial evidence is evidence that is reasonably credible and of solid value from which a reasonable trier of fact would find the defendant guilty beyond a reasonable doubt. (People v. Wilson (2008) 44 Cal.4th 758, 806.) A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
The crimes were committed privately in the sense that there was no gang name announced during its commission to induce fear in the community. There was no evidence that any one of the robbers threw gang signals during or even after the robbery. There was no evidence that the gang itself benefitted from or received proceeds of the robbery. The robbers did not identify themselves as gang members or associates, either as they were committing the crime or as they made their escape. The gang expert, Officer Smith, opined appellant was a BSV member basely solely on inferences the expert drew from the undated photographs presented to him. Officer Smith was THE local designated BSV expert yet he did not know appellant or co-defendant Twyman nor did he testify to anything he had heard about them. The expert testified that the crime was gang-related because the gang would earn money from the robbery to impress and recruit future gang members. Yet there was no evidence the gang received any proceeds of the robbery. Indeed, there was no evidence the BSV gang was even aware that this robbery was in the offing. Nor were the victims rival gang members. (People v. Albarran (2007) 149 Cal.App.4th 214, 227 [evidence insufficient to establish that gang members' or gang's reputations would be enhanced where there was no evidence the defendants identified themselves a gang members, bragged about the crime, created graffiti, or otherwise took credit for it]; Perez, supra, 18 Cal.App.5th at pp. 612-613 [evidence insufficient to prove benefit to a street gang where there was no evidence anyone shouted a gang name or displayed a gang sign during the offense].) Finally, that the robbery was committed within BSV's "territory" is insufficient to establish specific intent to benefit the gang. (People v. Ramon (2009) 175 Cal.App.4th 843, 851 (Ramon).)
As for appellant personally, there was no evidence of gang tattoos, gang monikers, prior admissions of gang membership, residence in a gang neighborhood, family members who were in a gang or personal prior encounters with the police in the company of gang members or associates. (Ramirez, supra, 244 Cal.App.4th at pp. 818-819 [no flashed gang signs, no called-out gang names, no apparent gang attire, no gang tattoos are all significant factors militating against the gang enhancement].) Appellant travelled from his residence in Las Vegas, committed the crime, and returned to Las Vegas.
I conclude substantial evidence does not support a finding the crimes were committed for the benefit of a criminal street gang. Neither is there evidence appellant acted "in association with" a gang. We can speculate of course, as did the expert, that appellant acted on behalf of a gang, but such speculation raises, at most, a mere possibility, upon which this gang enhancement cannot be allowed to stand. (Ramon, supra, 175 Cal.App.4th at p. 845.)
STRATTON, J.