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THE PEOPLE, Plaintiff and Respondent, v. CHERICE THOMAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Defendant Cherice Thomas appeals from a judgment entered following a jury trial in which she was convicted of first degree murder (count 1) and possession for sale of cocaine base (count 2), with findings that she committed the murder for the benefit of a criminal street gang and personally used and discharged a firearm, proximately causing great bodily injury.
She contends the court erred in admitting photographs and a roster listing her as a gang member, violated her privilege against self incrimination by admitting statements obtained by police during investigatory stops, and improperly permitted a gang expert to usurp the jury's fact finding function. She also contends the court improperly denied her petition to disclose juror information and made a sentencing error. We agree the photographs and roster were improperly admitted and that the gang expert improperly testified as to defendant's guilt. We conclude the errors were prejudicial, and therefore reverse the murder conviction.
BACKGROUND
In Los Angeles early in the morning of June 2, 2007, Stanley Daniels was shot and killed on Western Avenue near Leighton Avenue, an area claimed to be the territory of the Harlem Crips street gang. Two weeks later detective Sean Hansen of the Los Angeles Police Department questioned Chris Walker, a member of the Rollin' 20's street gang, rivals of the Harlem Crips. He said he had no information about the shooting.
The next month, Walker was arrested for firing a gun into an inhabited building. He informed officers he wanted to speak with detective Hansen again. In the second interview, Walker told Hansen the shooting on Western was retaliation for the earlier shooting of Mickey B., a Rollin' 20's member. He said he had been at a Rollin' 20's meeting a few days before the Western shooting, where a leader of the gang told those in attendance that the gang needed to “get ready to go to war.” Walker told Hansen that defendant said, “ ‘I'm ready. I'm ready․ I think I'm the only one that's ready and shit.’ ” Walker said that Rollin' 20's members Antonio Houston, Tiara Bigelow, and defendant then “did their shit on Western.” After the shooting, Walker said, defendant bragged that she had “murked” a “Barlem” (murdered a Harlem Crips gang member) on Western, that Houston “took her on one,” that she “murdered the nigger,” and that she was the only one from the car “busting and shit” (shooting). Later, Walker said, defendant acted like she was active and had gotten her stripes, and the gang members treated her with respect.
Shortly after this interview, police asked Walker to provide them with defendant's cell phone numbers. A week later, Walker gave police what he claimed was defendant's “chirp” number, 121*130*10994. (A chirp number is a number for “push to talk” communication by cell phone. The push-to-talk protocol uses the cell phone as if it were a two-way radio.) Records of the calls made and received by the phone using that chirp number indicated that in a four-week period around the time of the murder, the phone was used in Rollin' 20's territory much of the time and had been used in Harlem Crips territory only twice, two hours before and several minutes after the shooting on Western. The phone was not registered to defendant.
Police arrested defendant, finding cocaine in her possession and a different cell phone, which also was not registered to her.
At trial, Walker was uncooperative, refusing to confirm the information he had given to the police. A DVD of his police interview was played for the jury.
Frank White, an eyewitness, testified that he did not see the shooter's face but assumed the shooter was male because he ran like a man. (White consistently referred to the shooter as male.) He testified the shooter was about the same height as Daniels, the victim. Daniels was 5 feet 10 inches. Defendant is 5 feet 4 inches.
Officer Geraldine Thomsen testified as a gang expert about the rivalry between the Harlem Crips and the Rollin' 20's, their respective territories, and their criminal activities. She testified defendant had admitted in several encounters with police that she was a member of the Rollin' 20's. Thomsen also testified, over defendant's objection, that the attack actually benefitted defendant.
The jury deliberated over the course of three days. Defendant was convicted and sentenced to 50 years to life.
DISCUSSION
A. Admission of Photographs
Defendant moved to exclude three photographs. The first photograph was recovered during the execution of a search warrant on an unknown person's residence on an unknown date. It depicted defendant and Tiara Bigelow making hand signals associated with the Rollin' 20's. The second photograph was downloaded from an Internet website MySpace page belonging to an unknown person. It depicted defendant and Bigelow, with Bigelow again displaying Rollin' 20's gang signs. It was unknown where or when the photograph was taken or by whom, or when it was downloaded. The third photograph, also downloaded from a MySpace page, depicted a street sign for 27th Street (which is within Rollin' 20's territory), upon which a roster purportedly of Rollin' 20's members had been inscribed. The roster included defendant's moniker, Nina Ross (spelled “Neena Ross”). It was unknown where the photograph was or who took it or authored the writing depicted by it.
The trial court admitted the photographs and roster over defendant's objections. We agree with defendant that the court erred.
“Authentication of a writing is required before it may be received in evidence.” (Evid.Code, § 1401, subd. (a).) A photograph is a “writing.” (Evid.Code, § 250.) “No photograph or film has any value in the absence of a proper foundation. It is necessary to know when it was taken and that it is accurate and truly represents what it purports to show. It becomes probative only upon the assumption that it is relevant and accurate. This foundation is usually provided by the testimony of a person who was present at the time the picture was taken, or who is otherwise qualified to state that the representation is accurate. In addition, it may be provided by the aid of expert testimony ․ although there is no one qualified to authenticate it from personal observation.” (People v. Bowley (1963) 59 Cal.2d 855, 862.) “Without such proof the writing is irrelevant because it has no ‘tendency in reason’ to prove or disprove a fact at issue in the case. [Citation.]” (People v. Beckley (2010) 185 Cal.App.4th 509, 518.)
The record does not contain the kind of evidence described in Bowley or any other evidence sufficient to sustain a finding that the photographs were accurate depictions of defendant (or Bigelow) actually flashing gang signs or of a roster listing actual Rollin' 20's members. The provenance of the photographs was unknown. Thomsen could not testify from her personal knowledge that the photographs truthfully portrayed defendant or Bigelow flashing gang signs and no expert testified the photographs were not composite or faked. “Such expert testimony is even more critical today to prevent the admission of manipulated images than it was when ․ Bowley [was] decided. Recent experience shows that digital photographs can be changed to produce false images. [Citation.] Indeed, with the advent of computer software programs such as Adobe Photoshop ‘it does not always take skill, experience, or even cognizance to alter a digital photo.’ [Citation.]” (People v. Beckley, supra, 185 Cal.App.4th at p. 515.)
The photographs and roster were improperly admitted into evidence.
B. Admission of Field Identification Card Evidence
Before trial, defendant moved to exclude information obtained by police during several investigatory stops in 2007. On March 22, responding to a radio call regarding narcotics activity, two police officers stopped behind defendant's parked vehicle, ordered her out, and asked why she was there. They obtained her identification information and filled out a Field Identification (F.I.) card. Defendant provided her name, address, social security number, phone number, job information, gang moniker and gang affiliation. She was not arrested. Similar stops took place on May 3, 12 and 18 and June 2. In each, two officers responded to reports of illegal activity, stopped defendant, and obtained the same information, which they noted on F.I. cards. Two officers also stopped defendant in an alley on June 13 and investigated possible narcotics activity. Again, they left after filling out an F.I. card. Defendant was never arrested or handcuffed during the stops, and no Miranda 1 warnings were given.
Defendant argues the court erred in admitting F.I. card evidence because it was obtained in violation of her Miranda rights. We disagree.
Before interrogating a person who is in “custody or otherwise deprived of his freedom of action in any significant way,” the police must first warn the person “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” (Miranda v. Arizona, supra, 384 U.S. at p. 444.) Statements obtained in violation of this rule may not be used to establish guilt. (Ibid.)
Miranda warnings are required only when a person is subjected to “custodial interrogation.” (Miranda, supra, 384 U.S. at p. 444.) “Custody” in this context includes both actual custody and any situation in which a person has been deprived of his freedom of action in any significant way. (People v. Mickey (1991) 54 Cal.3d 612, 648.)
Not all police inquiries amount to “interrogation” requiring Miranda warnings. Preliminary investigative inquiries designed to obtain identifying information, or to confirm or dispel the suspicion of criminal conduct, may be outside the parameters requiring Miranda warnings. (People v. Morris (1991) 53 Cal.3d 152, 198 [two brief questions to learn defendant's identity and his relationship to a vehicle used in connection with criminal activity did not violate Miranda ]; disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
The rule excluding preliminary inquiries from the scope of Miranda “recognizes the value of routine and nonintrusive police inquiry before arrests and accusations are made. Such inquiry serves to minimize mistakes and protect the innocent․ ‘One of the primary purposes of preliminary questioning is to separate a group of persons possibly involved in a crime into those who should and those who should not be arrested-to decide whether all, some, or none should be charged. To turn all such questioning into custodial interrogation, requiring Miranda warnings in all cases, may help those eventually charged. But, it could also seriously interfere with the process of information gathering and on occasion force the police to cast their net of arrest too wide, significantly interfering with the liberty of the innocent.’ ” (People v. Morris, supra, 53 Cal.3d at p. 198.)
To determine whether a defendant was in custody, a trial court must examine the totality of the circumstances surrounding the interrogation to determine whether a reasonable person in the defendant's position would have considered himself at liberty to terminate the interrogation and leave. (People v. Ochoa (1998) 19 Cal.4th 353, 401-402; People v. Stansbury, supra, 9 Cal.4th at p. 830.)
Courts have identified a variety of circumstances relevant to the determination of whether the defendant was in custody, including the following: “whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) No single factor is dispositive; their interplay and combined effect must be assessed. (Ibid.)
On appeal, we accept the trial court's findings of historical fact if supported by substantial evidence but independently determine whether defendant was in custody. (People v. Stansbury, supra, 9 Cal.4th at p. 831.)
Under the totality of the circumstances, defendant was not in custody when police spoke with her on the street. In each instance, only two police officers were present, and nothing in the record suggests that the atmosphere was dominated by them or that defendant was physically restrained or removed from her location. Nothing indicates the questioning was aggressive, confrontational, or accusatory or that police manifested a belief in defendant's guilt, used interrogation techniques, or otherwise pressured her to incriminate herself. Under these circumstances, a reasonable person in defendant's position would not have considered herself to be in police custody. The trial court correctly ruled that police were not required to give defendant Miranda warnings before obtaining information noted on the F.I. cards.
C. Admission of the Gang Expert's Testimony
Officer Thomsen testified she was familiar with street gangs in general and the Rollin' 20's and Harlem Crips in particular, and that defendant was a member of the Rollin' 20's.
Thomsen was asked by the prosecution, “Do you have an opinion whether or not the shooting which resulted in the death of Stanley Daniels was an act that was committed by Cherice Thomas, a Rollin' 20's gang member, at the direction of other Rollin' 20's gang members and was committed in association with Rollin' 20's gang members and whether or not Miss Thomas' actions of shooting Stanley Daniels to death provided a benefit to the Rollin' 20's criminal street gang?” After defendant's objection was overruled, Thomsen responded, “My opinion is that the crime of murder was committed for the benefit of the Rollin' 20's street gang.”
Toward the end of direct examination, the prosecution asked, “So killing a rival gang member in rival territory gives a huge benefit and a huge increase in power to Nina Ross, doesn't it?” Thomsen said, “Correct.” She was then asked, “In your experience, is it at all unusual for a female like Cherice Thomas, the woman seated here in the pink sweater and the glasses, to be somebody who would put in work at the level of a murder for the Rollin' 20's gang?” She responded, “No.”
Defendant contends the trial court erred by admitting this testimony regarding her ultimate culpability. We agree.
“A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.] ․ [T]he reason for employing this rule is not because guilt is the ‘ultimate issue of fact’ to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case. [Citation.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.)
“[A]n expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618 [hypothetical questions based on facts of case permissible and expert can be asked if actions are gang-related activity done for benefit of the gang].) But the expert cannot exceed the permissible scope of expert testimony simply because he or she is responding to a hypothetical question.
Here, Thomsen was asked to opine on whether the Western shooting “was committed by Cherice Thomas” and whether it gave “a huge benefit and a huge increase in power to Nina Ross,” defendant's aka. The questions were not hypothetical; they improperly solicited an opinion from a non-percipient witness as to whether defendant herself committed the murder. Thomsen did not answer the first question directly, responding only that in her opinion, “the crime of murder was committed for the benefit of the Rollin' 20's street gang.” But admission of even this response was improper, on two levels. First, though Thomsen did not say directly that defendant committed the shooting, the prosecutor's phrasing explicitly posed that question, and Thomsen's response implied the answer was yes. Moreover, Thomsen improperly identified the crime as murder and opined that that crime had indeed been committed. (People v. Torres, supra, 33 Cal.App.4th at pp. 46-47 [expert may not define the crime or express an opinion as to whether it has been committed].)
Thomsen's answer to the second question was a flat statement of defendant's guilt.
Thomsen's opinion that defendant committed the murder was bolstered by the question regarding the habits of females “like” defendant. The prosecution asked whether it would be unusual for someone like defendant, “the woman seated [t]here in the pink sweater and the glasses,” to murder for her gang. Thomsen said, “No.”
In fine, the prosecution asked Thomsen whether defendant murdered Daniels for the benefit of the Rollin' 20's. Thomsen said she did. But that was for the jury, not the expert, to decide. When an expert's opinion “amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them.” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183.)
D. Prejudice
Erroneous admission of the photographs and Thomsen's testimony requires reversal only if it is prejudicial, that is, if there is a reasonable probability that, absent the error, defendant would have obtained a more favorable verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson ).)
During closing argument, the prosecutor made extensive use of the photographs and Thomsen's opinion. She argued, “I told you in my opening statements that the image of this defendant that you see and have seen seated here in this courtroom throughout this trial is not the same image that will be revealed to you through the evidence that you will see and hear in this case, and that's precisely what happened.” “[T]he picture of the defendant, Cherice Thomas, Nina Ross, who viciously ended Stanley Daniels' life on June 2nd of 2007 looks less like this women in the yellow shirt and who wore the pink shirt and looks more like the woman portrayed in the exhibits that you have that show Cherice Thomas wearing her red t-shirt throwing gang signs. [¶] Officer Thomsen told you that this woman here in the black t-shirt throwing gang signs, that's Cherice Thomas too. She doesn't have glasses on, but Officer Thomsen told you she's seen her day in and day out and that's what she looks like.” “The evidence presented to you by Geraldine Thomsen provides to you an insight into this defendant so that you will not be duped by her appearance here in the courtroom, so that you have a true picture of Cherice Thomas who is not as she appears in this courtroom.”
The primary issue in this case was identity. The evidence tending to identify defendant as the shooter was Walker's statement that she planned the murder and bragged about it afterward and his statement that she owned a cell phone that was shown to have been in the vicinity of the murder. This evidence was bolstered by the evidence that defendant on several occasions admitted to police that she was a Rollin' 20's member.
The identification evidence was weakened by Walker's having changed his story twice and by the testimony of Frank White, the eyewitness, who testified the shooter was a 5 feet 10 inches tall male. Also undermining the prosecution's case was the fact that the cell phone known to have been in the vicinity of the murder, which Walker associated with defendant, was not registered to defendant and was not the same phone as was found in her possession during her arrest.
In essence, defendant was convicted on the basis of Walker's depiction of her as a working, dangerous gang member, a depiction he later disavowed. The photographs of defendant displaying gang signs and Thomsen's testimony that defendant benefited from the murder reinforced the image painted by Walker. Given the weakness of the identification evidence, it would have been remarkable if the jury had not been influenced by the improperly admitted and utilized gang evidence. Though the impact of the errors on the minds of the jurors is difficult to assess, certain factors indicate the errors were not harmless. First, the jury deliberated over a period of three days. Our supreme court “has held that jury deliberations of almost six hours are an indication that the issue of guilt is not ‘open and shut’ and strongly suggest that errors in the admission of evidence are prejudicial.” (People v. Cardenas (1982) 31 Cal.3d 897, 907.) Second, the jury requested that the testimony of Frank White, the eyewitness who thought the shooter was male, be read back to them, indicating they were concerned about the sufficiency of the evidence establishing the shooter's identity.
The People argue the photographs merely showed that defendant was a gang member, a fact that was amply established on other evidence. We think they probably did more; they probably lead the jurors to infer that defendant was an active gang member disposed to commit crimes. If so, the fundamental presumption of innocence was impaired and the fairness of the factfinding process undermined. (See People v. Taylor (1982) 31 Cal.3d 488, 494 [criminal defendant is entitled to be tried in ordinary clothing, not prison jumpsuit].)
Where there is “ ‘at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result,’ ” the error is prejudicial. (People v. Mower (2002) 28 Cal.4th 457, 484, quoting Watson, supra, 46 Cal.2d at p. 837.) Here, comparing the gang evidence that the trial court improperly admitted against the plausible, but flawed and by no means conclusive identification evidence, and the prosecutor's use of the gang evidence in argument, we conclude there is such an equal balance of reasonable probabilities to create serious doubt about whether the errors affected defendant's murder conviction.
Accordingly, we reverse the murder conviction.
We need not determine whether the trial court improperly denied defendant access to juror contact information or made a sentencing error.
DISPOSITION
The judgment on count 1 is reversed, as are the gun use and gang enhancements. In all other respects, the judgment is affirmed. The matter is remanded for further proceedings.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
MALLANO, P. J.
JOHNSON, J.
FOOTNOTES
FN1. Miranda v. Arizona (1966) 384 U.S. 436.. FN1. Miranda v. Arizona (1966) 384 U.S. 436.
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Docket No: B217439
Decided: October 27, 2010
Court: Court of Appeal, Second District, California.
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