Opinion
D058175 Super. Ct. No. SWF026359
11-23-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAY SHARP, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Albert J. Wojcik, Judge. Affirmed.
A jury convicted Anthony Ray Sharp of two counts of assault with a firearm, three counts of actively participating in a criminal street gang, and one count each of possessing a concealed dagger and an assault weapon. It also found true allegations that the assault counts were gang related and that Sharp personally used a shotgun during the assaults. The court sentenced him to 18 years and four months in prison. Sharp appeals, contending: (1) the prosecutor committed misconduct during closing argument; (2) he received ineffective assistance when defense counsel failed to object to the prosecutor's closing argument; (3) the trial court improperly instructed the jury on reasonable doubt; and (4) the gang enhancement was not supported by substantial evidence. He also requests that we review search warrant documentation in camera to determine whether there existed probable cause to search and whether the trial court properly ordered that the documents remained sealed. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with the standard of review, we summarize the facts in the light most favorable to the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
In the early morning of July 19, 2008, Brian Vargas and Manual Hernandez were walking along Ramona Street in Hemet to reach the home of Vargas's cousin, Maria Flores. As the pair walked by Sharp's home, a man handed Sharp a shotgun from a silver case, and Sharp said, "Come out, come out, wherever you are." Sharp chambered a round and then pointed the gun at the pair. Knowing that Sharp was a Mongols gang member, and fearing for their lives, they ran away and had Flores call 911.
A few minutes after the call, police surrounded Sharp's home and kept it under surveillance while they obtained a search warrant. About five hours later, Sharp left the house with Alexander Vallejo, another Mongols gang member. During a search of the property, police found numerous items referring to the Mongols, and a shotgun in a gray gun case loaded with two slugs. About ten days after the incident, Sharp approached Flores, mentioned Vargas and Hernandez by name, said that they could "fix things," and indicated that he wanted to speak to Vargas and Hernandez.
In November 2008, the police stopped Sharp's car and found a nine-and-one-half-inch knife concealed on his person. In December 2009, the police searched Sharp's house and found an assault weapon. In March 2010, while in custody, Sharp called Flores a "rat" for testifying against him.
The prosecutor subpoenaed Vargas, Hernandez and Flores for trial. They all testified that they did not want to be at court. Vargas and Hernandez denied that Sharp had assaulted them with a shotgun and denied their prior statements to police. Vargas claimed that Sharp was wrongly accused of the incident. Flores similarly denied that Vargas had told her that Sharp had threatened him with a shotgun and claimed that she did not know why she called 911 that night. The prosecutor played the 911 call for the jury. Flores admitted that she had been crying during the call, but claimed that she was not concerned about Vargas's safety when she made the call.
Accordingly, the prosecutor established the facts of the assault primarily through the testimony of the police officers that had interviewed Vargas, Hernandez and Flores after the incident. The prosecutor also played a telephonic interview with Flores, recorded a few months after the incident, where Flores stated that her neighbor had assaulted Vargas and Hernandez with a shotgun.
David Hankins, a gang expert, testified that the Mongols are a criminal street gang that garnered respect through fear and intimidation by possessing weapons and engaging in acts of violence. He also opined that Sharp was a member of the Mongols gang. Based on a hypothetical question matching the facts of the assaults on Vargas and Hernandez, Hankins opined that the incident was gang related, that it had been committed in association with another gang member, and that the incident benefited and promoted the gang by instilling fear in the community, building the reputation of the gang, and building trust between two gang members.
DISCUSSION
I. Alleged Prosecutorial Misconduct and Ineffective Assistance of Counsel
A. Background
During closing argument, the prosecutor claimed that California was "in a state of crisis because of the aggressive expansion campaigns of gangs like the Mongols, who think it's okay to come into our community and expand, and use violence and fear and intimidation on the citizens of our community." To support this assertion, the prosecutor read portions of the preamble to the California Street Terrorism Enforcement and Prevention Act (Pen. Code, § 186.20 et seq., undesignated statutory references are to this code), which states, among other things, that: (1) every person has the right "to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals;" (2) "the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods;" (3) "[t]hese activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected;" and (4) the Legislature enacted the law "to seek the eradication of criminal activity by street gangs." (§ 186.21.)
He then stated, "that's why we're here today. We're here for accountability. We're here to send a message to the Mongols, put our foot down. And you are going to return a true verdict and a just verdict." The prosecutor immediately reminded the jurors that they could not consider sympathy or prejudice, that they must return a verdict based on the facts, and should focus on the evidence. He then urged the jurors to use their common sense in evaluating witness testimony, including their prior inconsistent statements, suggesting it was reasonable for the victims to claim that nothing happened because they were scared for their lives and did not want to be snitches.
Near the beginning of her closing argument, defense counsel told the jury that: "[T]his case isn't about California being in crisis. And this case isn't about the preamble to some legislation. This case is about a human being, Anthony Sharp. And this case is about determining whether or not the prosecution has met their burden and proved each and every charge beyond a reasonable doubt." Defense counsel suggested that the victims lied to the police because their stories did not make sense.
At the end of closing argument, the prosecutor reiterated his theme of sending a message, stating: "This is an important case for our community. A very important case. And I want you to send a message to the Mongols that they can scare these witnesses all they want, but ultimately, we're gonna hold them accountable. Because if we don't...." Defense counsel never objected to the prosecutor's arguments. B. Analysis
Sharp asserts that the prosecution committed misconduct by arguing to the jury that it should "send a message" to gangs by convicting him and by encouraging the jury to convict him for the good of the community. To the extent he may have waived this argument by defense counsel's failure to object at trial, Sharp contends he received ineffective assistance of counsel.
To preserve a claim of prosecutorial misconduct on appeal, the defense must make a timely objection and request an admonition. (People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Accordingly, Sharp's claim of prosecutorial misconduct is waived and we review his assertion in the context of his alternative claim of ineffective assistance of counsel.
To establish ineffective assistance of counsel, Sharp must show, by a preponderance of the evidence, that his counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
Our review of prosecutorial misconduct claims is guided by well-established rules. "A prosecutor's conduct violates a defendant's federal constitutional rights when it comprises a pattern of conduct so egregious that it infects ' "the trial with unfairness as to make the resulting conviction a denial of due process." [Citation.]' [Citation.] The focus of the inquiry is on the effect of the prosecutor's conduct on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Bennett (2009) 45 Cal.4th 577, 594-595.)
Generally, jurors treat comments by prosecutors as words of an advocate in an attempt to persuade. (See People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.) We review the prosecutor's remarks to determine whether there is a reasonable likelihood that the jury misconstrued or misapplied them. (Id. at p. 663.) Also, we do not view the prosecutor's remarks in isolation but rather "in the context of the argument as a whole." (People v. Cole (2004) 33 Cal.4th 1158, 1203.)
Sharp relies on a series of federal cases that hold it is improper for a prosecutor to incite the "passions, fears and vulnerabilities of the jury" (U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149) by encouraging a guilty verdict in the service of some larger social purpose not directly related to the defendant's guilt or innocence — for example, to "protect community values, preserve civil order, or deter future lawbreaking." (United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1441.) Examination of these cases reveals the existence of a fine line between proper argument and misconduct. (See e.g., U.S. v. Solivan (6th Cir. 1991) 937 F.2d 1146, 1155 [The prosecutor diverted the jury's attention away from the facts and towards a controversial national social issue and crossed the line by asking the jury to send a message and consider the impact a conviction would have on the "War on Drugs".]; compare United States v. Alloway (6th Cir. 1968) 397 F.2d 105, 113 [There was no misconduct in an armed robbery case where the prosecutor " 'call[ed] on th[e] jury to speak out for the community and let the John Alloways know that this type of conduct will not be tolerated.'"].)
Here, the prosecutor's comments addressed the credibility of the witnesses and the Mongols use of fear and intimidation to silence witnesses. The remarks did not cross the line because they amounted to a comment on the evidence. One of the primary issues for the jury to resolve was whether the victims lied to police immediately after the incident, or whether they lied on the witness stand out of fear of retaliation by the Mongols. (People v. Morales (2001) 25 Cal.4th 34, 44 [during closing argument, a party is entitled to discuss the evidence and comment on reasonable inferences that may be drawn therefrom].) Notably, Hankins opined that people are less likely to testify against gang members because they know that even if the particular gang member the witness testified against goes to jail, that the jail-bound member has many violent friends, which intimidates witnesses and that Mongols feel untouchable because fear keeps people in their communities from testifying. The prosecutor's comments directly related to the evidence presented to the jury and did not improperly appeal to the jury's passion and prejudice. (People v. Cornwell (2005) 37 Cal.4th 50, 92-93, cert. den. sub nom. Cornwell v. California (2006) 546 U.S. 1216, [People v. Cornwell overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421].)
Moreover, no reasonable juror would have construed the prosecutor's comments as an exhortation to follow community sentiment about the Mongols rather than their own judgment about Sharp's guilt or innocence because the prosecutor reminded the jurors they could not consider prejudice, they must return a verdict based on the facts, and should focus on the evidence. (See People v. Carpenter (1997) 15 Cal.4th 312, 397 [prosecutor's references to the "measure of a society" did not inject issues broader than defendant's guilt and invite the jury to render a verdict based on public opinion], superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106; People v. Wash (1993) 6 Cal.4th 215, 261-262 [no misconduct where prosecutor urged "jury 'to make a statement,' to do 'the right thing,' and to restore 'confidence' in the criminal justice system by returning a verdict of death"]; People v. Lang (1989) 49 Cal.3d 991, 1041 [prosecutor's remarks that "if you want to have a voice in your community and an effect upon the law in the community, this is your opportunity" are not improper because "[n]o reasonable juror would have construed the remarks as urging the jurors to follow community sentiment rather than their own judgment"].)
Sharp has not shown how the remarks, in the context of the prosecutor's argument as a whole, were either deceptive or reprehensible. (People v. Cole, supra, 33 Cal.4th at p. 1203.) Because the comments were not objectionable, there was no basis for a claim of ineffective assistance in the failure to object. (E.g., People v. Dickey (2005) 35 Cal.4th 884, 915.)
Even if we assume arguendo that the argument was improper, no prejudice resulted from defense counsel's failure to object to it. The trial court instructed the jury not to base its decision on passion, prejudice, public opinion or public feeling, and that statements of counsel are not evidence. (CALJIC Nos. 0.50, 1.00 & 1.02.) Further, the trial court fully instructed the jury regarding evaluating witness credibility and weighing conflicting testimony. (CALJIC Nos. 2.13, 2.20, 2.21.2 & 2.22.) We presume the jury followed the trial court's instructions. (People v. Martinez (2010) 47 Cal.4th 911, 957.)
II. Sufficiency of the Evidence Supporting the Gang Enhancement
Sharp claims a due process violation because sufficient evidence did not support the jury's true finding on the gang enhancement allegation. (§ 186.22, subd. (b)(1).) Citing People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa) and People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), Sharp contends the evidence did not support Hankins's testimony that the assault benefited the Mongols by instilling fear in the neighborhood. We disagree.
In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the judgment and presume the existence of every fact that the jury could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) To establish a gang enhancement, the prosecution must prove that the crime for which the defendant was convicted 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." (§ 186.22, subd. (b)(1).) These requirements are stated in the disjunctive. (Ibid.) "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of ... a[] criminal street gang'" within the meaning of section 186.22, subdivision (b)(1). (People v. Albillar (2010) 51 Cal.4th 47, 63 (Albillar).)
Vargas and Hernandez knew that Sharp was a Mongols gang member. Hankins stated that the Mongols's motto is "Respect few, fear none." Respect is "everything" to the Mongols with Hankins analogizing respect with fear, meaning that gang members do things for the club, such as assaults, to make people fear them. A gang member gains respect or generates more fear based on the violence of particular crimes. He opined that an assault with a shotgun by a gang member committed in front of another gang member benefited the gang because the assault: (1) intimidates the community, causing fear; (2) shows the observing gang member that the person committing the assault "is a serious member and [] is willing to do things for the organization;" and (3) bolsters the reputation of the gang in the neighborhood.
Case law recognizes that "[a] community cowed by gang intimidation is less likely to report gang crimes and to assist in their prosecution. The gang benefit is plain." (People v. Margarejo (2008) 162 Cal.App.4th 102, 110; see also, Albillar, supra, 51 Cal.4th at p. 63 [where rape victim knew her rapists were gang members, reports of the violent attack would benefit the gang by raising fear and intimidation in the community].) Because substantial evidence supports a finding that the crimes benefitted the gang, reversal cannot be justified by the possibility that the evidence might have been reconciled with a finding that Sharp acted for personal reasons only. (Albillar, supra, 51 Cal.4th at p. 60.) The cases cited by Sharp do not compel reversal of the jury's findings in this case. (Ochoa, supra, 179 Cal.App.4th at p. 662 [no evidence revealed defendant committed crimes in gang territory or with other gang members or associates]; Ramon, supra, 175 Cal.App.4th at p. 853 [fact that defendant was with another gang member and in gang territory when he drove a stolen vehicle with an unregistered firearm inside did not justify imposition of gang enhancement where there was no evidence the crimes were one of the primary activities of the gang; those facts were not sufficient to support expert's testimony that crimes were committed for benefit of gang].)
Finally, citing Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia), Sharp asserts the evidence is insufficient to support the second prong of section 186.22, subdivision (b)(1), which requires that a defendant commit the gang-related felony "with the specific intent to promote, further, or assist in any criminal conduct by gang members" because the statute requires a defendant to assist in or promote a crime other than the one charged. The Albillar court, however, concluded that Garcia did not correctly interpret the statute. It held the specific intent language of section 186.22, subdivision (b) is "unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense or conviction sought to be enhanced." (Albillar, supra, 51 Cal.4th at p. 66.) We are bound by this conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In summary, because the true finding on the gang enhancement was supported by sufficient evidence, Sharp's claim of a due process violation has no merit.
III. Reasonable Doubt Instruction
The trial court instructed the jury on reasonable doubt pursuant to CALJIC No. 2.90. This instruction defines reasonable doubt and states that "[a] defendant in a criminal action is presumed to be innocent until the contrary is proved" and that "[t]his presumption places upon the People the burden of proving [the defendant] guilty beyond a reasonable doubt." CALJIC No. 2.61 informed the jury that, a "defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against [him]. No lack of testimony on defendant's part will make up for a failure of proof by the People so as to support a finding against him on any essential element." Additionally, CALJIC No. 2.01 explained that "each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt."
For each of the charged offenses, the count instructed "in order to prove [the crime], each of the following elements must be proved," followed by the elements of the offense. Finally, for each of the enhancement allegations, the trial court instructed the jury that "[t]he People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true." (CALJIC Nos. 17.24.2, 17.19)
Sharp asserts his right to due process was violated because the reasonable doubt instruction did not inform the jury that the prosecution had to prove "each element" of the crimes and allegations beyond a reasonable doubt. Relying on out-of-state authority, he claims the jury could have found him guilty of a crime, while believing that one element of the crime was not proved beyond a reasonable doubt. We disagree.
Due process requires that the jury in a criminal case be instructed that the government has the burden to prove beyond a reasonable doubt each element of the charged offense. (Middleton v. McNeil (2004) 541 U.S. 433, 437.) So long as the trial court instructs the jury on the necessity of proof beyond a reasonable doubt, "the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. [Citation.] Rather, 'taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.' [Citation.]" (Victor v. Nebraska (1994) 511 U.S. 1, 5.) Critically, "instructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677.) We review an instruction challenged for ambiguity to determine whether there is a reasonable likelihood that the jury applied the instruction in a way that denied fundamental fairness. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Clair (1992) 2 Cal.4th 629, 663.)
Here, taken as a whole, the instructions told the jury that "the People [have] the burden of proving [the defendant] guilty beyond a reasonable doubt" (CALJIC No. 2.90), that "the People [must] prove beyond a reasonable doubt every essential element of the charge against [the defendant]" (CALJIC No. 2.61), that "each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt" (CALJIC No. 2.01), to prove a crime "each of the following elements must be proved" (CALJIC Nos. 9.02, 6.50, 12.41), and an allegation must be found not true unless proven by the People beyond a reasonable doubt (CALJIC Nos. 17.24.2, 17.19.)
When the entire charge to the jury in the instant case is considered, it is clear that the trial court instructed the jury that the People have the burden of proving each and every element of the charged offense and special allegations beyond a reasonable doubt. Jurors are presumed intelligent and capable of correlating the instructions given them. (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) Accordingly, CALJIC No. 2.90 is not ambiguous, nor is it constitutionally infirm. (People v. Osband (1996) 13 Cal.4th 622, 679 [after considering the instructions as a whole, including CALJIC Nos. 2.90 and 2.01, the court held "we find no reasonable likelihood that the jury was misled with regard to its obligation to find each element of each charged crime proven beyond a reasonable doubt."]; see also People v. Ochoa (2001) 26 Cal.4th 398, 444, fn. 13 ["It would be correct to instruct that the People must prove every element of the offense beyond a reasonable doubt, but a defendant is not entitled to that instruction."], disapproved on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)
IV. Search Warrant
The defense moved to unseal the search warrant and affidavit that authorized the second search of Sharp's home. This search provided evidence to support the gang related charges and resulted in the seizure of the assault weapon. After the prosecution opposed the request, the trial court held an in camera hearing and concluded that the materials should remain sealed because of an ongoing police investigation.
Sharp requests that we review the search warrant and supporting affidavit in camera to determine whether probable cause supported the issuance of the warrant and whether the trial court properly found that the materials should not be disclosed. The People do not oppose the request.
"A search warrant must be supported by probable cause. [Citations.] In determining whether probable cause exists, the magistrate considers the totality of the circumstances." (People v. Varghese (2008) 162 Cal.App.4th 1084, 1103.) In reviewing the validity of a search warrant and the search conducted pursuant to it, we inquire whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. (People v. Kraft (2000) 23 Cal.4th 978, 1040 (Kraft).)The issuing magistrate must make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found. (Id. at pp. 1040-1041.) The magistrate's determination of probable cause is entitled to deferential review. (Id. at p. 1041.)
The Fourth Amendment requires particularity of the place to be searched and the items to be seized. The requirement of particularity ensures that law enforcement officers do not use a warrant to generally rummage through one's property. Whether the description in a warrant of the property to be seized is sufficiently definite is a question of law subject to independent review by the appellate court. Searching officers may seize items specifically named in a valid warrant, as well as other items in plain view, provided the officers are lawfully located in the place from which they view the items in question. (Kraft, supra, 23 Cal.4th at p. 1041.)
We have conducted our own in camera review of the search warrant and supporting affidavit. We also reviewed the reporter's transcript of the in camera hearing held by the trial court on February 9, 2010. We conclude the trial did not err in either its denial of Sharp's motion to unseal the search warrant affidavit or its decision to keep these documents sealed. We also find that the "totality of the circumstances" presented in the search warrant affidavit established a fair probability that contraband or evidence of a crime would be found in Sharp's residence. Accordingly, we find the trial court did not err in denying Sharp's motion to unseal the search warrant.
DISPOSITION
The judgment is affirmed.
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MCINTYRE, J.
WE CONCUR:
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NARES, Acting P. J.
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HALLER, J.