PEOPLE v. ROBERTS

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. James ROBERTS, Defendant and Appellant.

No. B099308.

Decided: June 17, 1997

David Joseph Macher, Riverside, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted appellant of three counts of second degree robbery (Pen.Code, § 211;  counts I, II, and III;  statutory references, unless otherwise noted, are to the Penal Code), and found he had personally used a firearm (§ 12022.5, subd. (a)) in each robbery.   In a bifurcated proceeding, the trial court found true, allegations appellant had suffered seven serious felonies (§ 667, subd. (a)), that each was a “strike” (§ 667, subds.(b)-(i)), and that three were state prison priors (§ 667.5, subd. (b)).  Appellant was sentenced to state prison for 93 years to life.

Appellant contends (1) the trial court erred in admitting evidence that a gang member will lie for a non-gang-member neighbor;  (2) the trial court erred in imposing three life terms;  (3) the consecutive sentencing provisions of the three strikes law are unconstitutionally vague;  (4) his section 667, subdivision (a)(1) sentences were an impermissible dual use;  (5) the trial court committed section 667.5, subdivision (b) sentencing error;  (6) the 93-year-to-life sentence is cruel and unusual punishment;  and (7) there must be a Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628) remand.

We find appellant's contentions without merit and, after ordering a minor correction, affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

On June 2, 1994, near the 7 p.m.   closing time, appellant and Samuel Bobby Stewart robbed several Smart & Final employees at 1216 Compton Avenue in Los Angeles.   Both appellant and Stewart were armed.

Upon entering the store, they ordered everyone to lie down, had employees open cash registers, took the register money, appellant had an employee unlock the manager's office door and open the safe, and then place $850 in coins in a plastic bag.

Appellant told Stewart to hurry because someone was coming.   Appellant and Stewart both left the store.   Video cameras recorded the robbery.  (People's exh. 20.)

Gildardo Gudino, a Smart & Final employee, had driven to the store in order to pick up his paycheck and was about to drive into the parking lot when he saw appellant and Stewart run out of the store.   Stewart pointed a gun at him, Gudino ducked, heard two shots, rose, and, in his rear view mirror, saw the men run through the parking lot gate.   Gudino made a U-turn and followed them.

One of the robbery victims called 911 and nearby police units responded.   Officers saw the fleeing suspects, pursued them, and arrested appellant and Stewart.   Both were identified by the victims.

On Stewart police found $987 in currency, $41.25 in coins, food stamps (taken during the robbery), and a Smart & Final bag.

Appellant had $96 in his pocket.

Over $1,000 taken during the robbery was not recovered.

Stewart's gun, which he had tossed onto a roof during the chase, was also recovered.

Later, after Gudino got home, he saw a bullet hole in the passenger door molding of his car.   He removed the bullet and gave it to the police.

Appellant and Stewart were charged with the Smart & Final robberies and jointly tried.   A jury found them not guilty of one robbery count, convicted Stewart of other counts, but deadlocked on three counts of robbery involving appellant.

An amended information was filed and appellant was retried and convicted.   This appeal followed.

DISCUSSION

1. Appellant contends the trial court erred in admitting evidence that a gang member will lie for a non-gang-member neighbor.

The only defense witness was Samuel Bobby Stewart, already convicted of and sentenced for the Smart & Final robberies.

Stewart testified he committed the robberies not with appellant but with fellow Crip Gang members Andre and Raymond whose last names and addresses he did not know.   He said Raymond, the driver, left during the robbery, before he and Andre exited.   So Andre ran in one direction and he, Stewart, ran in the opposite direction.   While running, he passed a man who was just walking along-appellant.   The police-mistakenly-arrested appellant as one of the robbers.

To impeach Stewart by showing he had a motive to testify falsely, the prosecutor offered evidence that a gang member (Stewart) will testify falsely for a non-gang-member neighbor (appellant).   After a hearing, the trial court permitted the evidence.

Appellant contends the trial court erred in permitting Detective Reyas to give the subject testimony because he lacked qualifications and the evidence was more prejudicial than probative.  (Evid.Code, § 352.)   We consider both objections.

Evidence Code section 801 sets forth the grounds for the admission of expert opinion testimony.   It states:  “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:  [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;  and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

“[A]n expert need only demonstrate he possesses ‘special knowledge, skill, experience, training or education sufficient’ for the trial court to find him an expert.”  (People v. Fudge (1994) 7 Cal.4th 1075, 1120, 31 Cal.Rptr.2d 321, 875 P.2d 36.)  “Case law has upheld expert police officer testimony in the field of gang sociology and psychology.”  (People v. Gamez (1991) 235 Cal.App.3d 957, 966, 286 Cal.Rptr. 894, disapproved on other grounds by People v. Gardeley (1997) 14 Cal.4th 605, 624, fn. 10, 59 Cal.Rptr.2d 356, 927 P.2d 713;  In re Darrell T. (1979) 90 Cal.App.3d 325, 328-329, 153 Cal.Rptr. 261;  People v. McDaniels (1980) 107 Cal.App.3d 898, 904-905, 166 Cal.Rptr. 12.)

 Detective Reyas testified he had worked four years in two different gang units, had received gang instruction at the Police Academy, at a special Gang Awareness School, and at a five-day National Law Enforcement Officer Institute gang school.   Further, he testified he had spoken to hundreds of gang members, had gained their confidence, and talked with them “about what they're willing to do for people who aren't gang members[.]”

Based upon his experience, Detective Reyas testified, “L.A. gang members come to court and testify falsely in order to assist a non-gang member who happens to live in the same neighborhood as the gang member[.]” 1

“The governing rules are well settled.   First, the decision of a trial court to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’  [Citation.]  Second, ‘the admissibility of expert opinion is a question of degree.   The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission;  if that were the test, little expert opinion testimony would ever be heard.   Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would ‘assist’ the jury.   It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.” ' ”  (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300, 283 Cal.Rptr. 382, 812 P.2d 563.)

 We find no manifest abuse of discretion in the trial court's ruling that Detective Reyas was a qualified gang expert.  (People v. Chavez (1985) 39 Cal.3d 823, 828, 218 Cal.Rptr. 49, 705 P.2d 372);  Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1319-1320, 273 Cal.Rptr. 214;  “The judge's discretion in determining qualifications is very broad, and is seldom disturbed on appeal.”  (3 Witkin, Cal. Evidence (3d ed.1986) § 1844, p. 1799.)

“When a section 352 [Evid.Code, § 352] objection is raised, the trial court ‘must weigh the admission of [the challenged] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would have on the defense.’   If the prejudicial effect outweighs the probative value, the trial court should exclude the evidence.  ‘[T]he fundamental rule [is] that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted.’ ”  (People v. Cardenas (1982) 31 Cal.3d 897, 904, 184 Cal.Rptr. 165, 647 P.2d 569;  citations omitted.)

“Relevant evidence is evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’  (Evid.Code, § 210.)[E]vidence is relevant if it ‘tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent or motive.’ ”  (People v. Champion (1995) 9 Cal.4th 879, 922, 39 Cal.Rptr.2d 547, 891 P.2d 93.)

 “The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason.   Evidence of gang activity and affiliation is admissible where it is relevant to issues of motive and intent, and, while admissible evidence often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias.”  (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369, 37 Cal.Rptr.2d 596;  citations omitted.)

We find no abuse of the trial court's discretion.  (Evid.Code, § 352.)   The evidence of motive to fabricate was clearly relevant.   Its prejudicial effect was minimal since Stewart had already testified he was a gang member, and Detective Reyas's testimony was predicated upon appellant not being a gang member.

2. Appellant contends the trial court erred in imposing three life terms.

The trial court imposed consecutive 25-year-to-life terms on the three robbery counts, each involving a different victim.

Appellant contends the sentences violated section 667, subdivision (c)(6) and (7).   They provide:  “(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).

“(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”

In three strike cases, the issue of whether consecutive sentences are to be imposed when violent crimes are committed against different victims “on the same occasion” has divided Courts of Appeal and has not yet been resolved by our Supreme Court (People v. Markson (1995) 50 Cal.App.4th 434, 49 Cal.Rptr.2d 3, review granted Mar. 21, 1996;  People v. Nelson (1996) 47 Cal.App.4th 1784, 51 Cal.Rptr.2d 9, review granted May 29, 1996;  People v. Hendrix (1996) 47 Cal.App.4th 11, 54 Cal.Rptr.2d 755, review granted Sept. 25, 1996;  People v. Pearsall (1996) 48 Cal.App.4th 600, 55 Cal.Rptr.2d 713, review granted Nov. 26, 1996).

 If a person, without serious felony convictions, robs two victims on the same occasion he may be punished for each robbery.  (People v. Lagomarsino (1950) 97 Cal.App.2d 92, 100, 217 P.2d 124, 1 Witkin & Epstein, Cal.Criminal Law (2d ed.1988) § 118, pp. 138-139.)

Considering that “the intent of the Legislature in enacting subdivisions (b) to (i), ․ [was] to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses” (§ 667, subd. (b)), it would be irreconcilable with that legislative intent to hold that if a person, with serious felony convictions, robs two victims on the same occasion he may not be punished for each robbery.

 Accordingly, we agree with People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, (Second Dist., Div. Four), People v. McKee (1995) 36 Cal.App.4th 540, 42 Cal.Rptr.2d 707 (Second Dist, Div. Six), People v. Ingram (1995) 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256 (Fifth Dist.), People v. Carter (1995) 41 Cal.App.4th 683, 48 Cal.Rptr.2d 726 (Second Dist., Div. Five), and People v. Samuels (1996) 42 Cal.App.4th 1022, 50 Cal.Rptr.2d 157 (Second Dist., Div. One) that the principles of section 654 apply to the subject provisions.   We hold appellant may be separately and consecutively punished for robbing each of the three victims.

3.-7.***

DISPOSITION

The judgment is ordered corrected by striking “667.5(B) S” from number 3, ENHANCEMENTS.

As corrected, the judgment is affirmed.

I concur in the judgment and rationale of the majority opinion with one exception, its discussion of the admissibility of the gang expert's opinion testimony to the effect gang members lie about non-members in order to earn more respect in the gang.   While I am convinced the introduction of this opinion did not substantially affect the outcome and therefore support the affirmance of the judgment, I am concerned about the dangers inherent in this sort of “group character” evidence.

“[M]embership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion.”  (In re Wing Y. (1977) 67 Cal.App.3d 69, 79, 136 Cal.Rptr. 390.)   This applies to evidence about an individual witness's credibility as well as his other conduct.   The tendency of members of a certain group-whether it be racial, ethnic or religious group, or a street gang-to lie about certain topics does not “lead reasonably to any inference as to” whether a member of that group lied on a given occasion.   Thus, even accepting the accuracy of the gang expert's testimony the membership of this street gang will commit perjury for neighborhood residents in order to gain respect within the organization 1 does not “lead reasonably to any inference” this particular member of the gang committed perjury in his statements to the police or his testimony at trial.

This case is very different from those which allow proof both the witness and the defendant are members of the same organization in order to establish the witness was biased in favor of his confederate.  (United States v. Abel (1984) 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 [common membership in “Aryan Brotherhood” admissible to show witness bias];  see also, Saltzburg, Bias Evidence and Gang Membership (Spring 1996) Criminal Justice 48, and cases discussed therein.)   Here the evidence showed the witness and the defendant shared no common membership in a street gang and thus this line of cases is inapplicable.

In my view, the majority ruling invites a flood of dubious evidence about the motives and characteristics of any number of groups and organizations of which a witness may be a member in order to establish the particular witness was more likely to lie-or tell the truth-on a given occasion.   You can almost hear an expert on “Boy Scouts” testifying scouts lose respect within that organization, and maybe even their merit badges, if they lie about anything and therefore the witness, an Eagle Scout, must be telling the truth.   Or a purported expert on police behavior testifying members of the force gain respect among other police by lying about probable cause if needed to save an arrest or search and thus this particular officer must be lying on this particular occasion about this particular search.   Or a defense expert on gangs expressing the opinion a member of one gang will gain respect within his gang by committing perjury that gets a rival gang in trouble, and hence this witness must be lying in his testimony implicating the defendant, a member of a rival gang.

The possibilities of such testimony are almost endless-involving the characteristics and motivations of various racial, ethnic, professional, and religious groups, as well as organizations as different as the Boy Scouts and the Compton Crips.   The law has wisely looked askance at evidence of group tendencies and motives to lie-or tell the truth-when making credibility judgments about individual members of those groups.   The relevance of such group tendencies in predicting a witness's credibility on a given occasion is extraordinarily weak.   Meantime the potential prejudice-in favor of certain groups and organizations and against others-is extraordinarily powerful.   The instant case provides a good illustration of those dangers.   In my view, the trial court here erred in allowing this evidence and we should criticize rather than endorse its decision to do so, even though that error turned out to be harmless.   Otherwise, we only encourage other courts to admit similar evidence with all the risks it poses for the truth-finding process.

FOOTNOTES

1.   There was evidence appellant and Stewart lived within two blocks of each other.

FOOTNOTE.   See footnote *, ante.

1.   The gang expert's testimony also was objectionable for the prosecution's failure to lay an adequate foundation for this opinion.   The avowed basis for the opinion was weak indeed highly speculative-a few conversations with gang members and “observations” of gangs-but no known instances where gang members had actually committed perjury to help neighbors.   There was no specification of the reward for committing perjury to help a neighbor or the punishment for failing to do so-other than some undefined increase in “respect.”

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.

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