People v. Andrews, 2015 Cal. App. Unpub. LEXIS 3795 (Cal. Ct. App. May 28, 2015):

Appellant Michael Andrews was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a), one count of premeditated attempted murder in violation of Penal Code sections 187 and 664 and one count of being a felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a)(1). The jury found true the allegations that these crimes were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1). The jury also found true the allegations that a principal personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) and personally [*2]  and intentionally discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (c), in the commission of the murder and attempted murder. The jury also found true the allegation that, with respect to the murder, the principal's discharge proximately caused death within the meaning of Penal Code section 12022.53, subdivision (d). The trial court sentenced appellant to a total term of 50 years to life in state prison, consisting of a term of 25 years to life for the murder conviction, plus a 25-year-to-life term for the Penal Code section 12022.53 firearm enhancement. The court also sentenced appellant to a concurrent term of 15 years to life for the attempted murder conviction plus a 20-year-to-life term for the Penal Code section 12022.53 firearm enhancement and a concurrent term of five years for the possession of a firearm conviction. The court imposed but stayed 10-year determinate terms for the Penal Code section 186.22 gang enhancement to the murder and attempted murder convictions.

Appellant appeals from the judgment of conviction, contending admission of two YouTube videos violated his constitutional rights to due process and a fair trial and admission of evidence he committed two previous murders violated Evidence Code¹ section 1101 and his constitutional rights to due process and a fair trial. He contends that if either of these claims have [*3]  been forfeited, he received ineffective assistance of counsel. Appellant also contends the prosecutor committed misconduct during closing argument. He asks us to review the in camera transcript of his Pitchess² motion. Both appellant and respondent contend the trial court's imposition of 10-year determinate terms for the gang enhancement must be stricken. We agree the terms must be stricken. We affirm the judgment of conviction in all other respects.

1   All further statutory references are to the Evidence Code unless otherwise specified.

2   Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

Facts

In the evening of June 17, 2010, Cynthia Parker was shot and killed while sitting in her car in front of a house at 5018 Wadsworth Avenue. Her baby daughter was in the rear passenger seat but was unharmed. The shooting occurred in an area claimed by the Ten Line Crips (Crips) gang. The area had previously been claimed by the Blood Stone Villains (BSV) gang.

Police arrived at the scene at about 10:45 p.m. Although there were 10 to 15 people in the street screaming and crying, ultimately only Shawanda Kelly provided a statement to the police.

According to Kelly, Parker had been visiting her and got in the car to go home. Kelly said good-bye [*4]  and went into the house. She heard the sound of what she thought were firecrackers and then heard Parker's car horn. Kelly walked out to find Parker wounded and unresponsive.

Kelly told police the baby's father was Kenyae Rollins and that he and Parker had been in an argument before the shooting. At some point, Rollins kicked in the front of Parker's car. Parker believed Rollins was cheating on her.

Rollins heard about the murder the next day when Parker's sister called him and said, "Boy, I'm going to whoop your ass if you had anything to do with my sister getting shot." Rollins found the inhabitants of the Wadsworth house hanging out together at 98th and Main. Everyone there gave him a "run down" of what happened.

Wanda Boyd told Rollins that she had been standing at the side of the car with her relative Larry Shidie, talking to Parker. Shidie is a Crips gang member. Boyd said she saw a man fumbling with his belt nearby, then he got a gun and started shooting at Shidie and then at Boyd.

About a week after the shooting, Boyd visited Parker's grandfather, John Brider. Brider was taking care of Parker's child. Boyd told him she witnessed Parker's shooting. Boyd said she was talking to Parker [*5]  when a man came around the corner in the darkness. Parker flashed her lights to try to identify the man. The man was chasing her nephew and shooting at him. After her nephew left, the man shot at Boyd and she ran away. Boyd did not tell Brider the name of her nephew.

Rollins began conducting his own investigation. He learned from Shidie that Boyd's son "Ghetto," a Crips gang member, had a picture of the "dude that did the shooting." Rollins went to see Ghetto the next day. Ghetto had about three photos. Rollins took a picture of one of the photographs with his cell phone. Rollins then asked people about the pictures and someone volunteered that the person in the picture was a BSV gang member. He showed the picture to Boyd and Shidie. Shidie indicated that the image was of the shooter, but Boyd was not sure.

On June 21, 2010, Rollins met with Los Angeles Police Detectives Tommy Thompson and Leonardo McKenzie. A few weeks later, Rollins electronically provided the detectives with a digital copy of his photograph of Ghetto's photograph. According to Detective McKenzie, Rollins told them Boyd positively identified the image in the photograph as the shooter.

At some point, Detective McKenzie [*6]  showed the image provided by Rollins to other gang officers who suggested that it was "Chabo," a member of the BSV gang. Searching for that moniker in department resources, he found a photograph of appellant.

On March 23, 2011, Detectives McKenzie and Thompson interviewed Kenneth Jones, who was in custody on a possession for sale of PCP case. Detectives told him, "We have a guy that's saying you did something."

Detectives showed Jones the photograph from Rollins and asked Jones if he knew the person in the picture as "Chabo." Jones claimed he met appellant, whom he knows as "Chabo," through Tavar Thomas, a BSV member known as "CK Bell." Bell referred appellant to Jones for a security job at a night club. Later, Jones fired appellant for stealing alcohol. Appellant was angry about being fired.

Bell was shot outside the "Bottums Up" recording studio, a BSV hang-out, on May 30, 2010. Jones told police that on June 17, 2010, he was hanging out with a bunch of people at 51st and Central. Appellant was there, both drunk and high and "talking nonsense." He said, "Bell, my brother, Bell this, Bell that, woo, da, woo, woo, woo. Whew, uh, no ain't nobody going to do nothing? . . . Ain't no motherfucker [*7]  ain't fixing to do shit . . . I got him and that's my brother. He in the hospital, woo, woo, woo, woo." Appellant asked if anyone had any "heat," which is street slang for a pistol. Later, Jones heard shots.

Jones was an extremely uncooperative witness at trial, and repeatedly denied making statements to police. When the prosecutor played the audio tape of his police interview, he said his statements to the detectives during the interview were lies because he was not "sworn in." According to Jones, the detectives accused him of the murder and he felt threatened that they would "put a case on [him]" if he did not tell them what they wanted to hear. Detectives played a tape for him of appellant pointing the finger at him. He was told "you're the one who is probably going to eat this," and "you're going to get rung the fuck up." Jones was angry at appellant during the interview and was still angry at him at the time of trial for accusing him of the murder and getting him involved in the case.

In July 2011 Detectives McKenzie and Thompson interviewed Shidie. Shidie was undergoing court ordered drug rehabilitation at the time. Shidie told the detectives he got off work at approximately 7:00 [*8]  p.m. on June 17, 2010, and went to Boyd's house in the 5000 block of Wadsworth where family members were watching the Lakers game. The house is known as a Crips hang-out area. While there, he drank a pint of tequila and smoked a blunt. At the time, he was an alcoholic and tequila did not make him drunk, in his opinion. He had been drinking since age nine.

Shidie went outside and saw Boyd was standing by the driver's side door talking to Parker, in the front seat of the car. He noticed a man walking down the street, going on and off the curb. The man came to the back of Parker's car, on the rear passenger side, and started to "go for his waistband." Shidie kicked the gate in front of the house to avoid being shot. He was about two feet away from the man before Shidie took off running toward 51st Street and toward Avalon Boulevard. Shidie was zigzagging down the street to avoid being shot. For a moment, he stopped by a light pole and a bullet passed his right foot and hit the ground. He heard about six more shots as he was running. About 30 minutes later, he returned to see the streets were blocked off by police. Shidie was arrested in Long Beach for robbery about a month after the murder. [*9]

The detectives showed Shidie the cell phone image provided by Rollins. Shidie said he recognized the shooter from a funeral for his cousin Tommy Kirkpatrick back in 2006 or 2007. Shidie's first reaction to the photo was, "He kind of looked the same." As the interview went on, the identification became more "solid." The funeral was the first and last time Shidie ever saw appellant, until the night of the shooting. Shidie identified appellant in the courtroom as the shooter he saw that night.

Although he initially denied getting money from the police, Shidie admitted that he did get paid by the police for his relocation. Around the time of the preliminary hearing, Shidie told the previous deputy district attorney that he was concerned about "snitching" and that something bad might happen to him. The prosecutor now assigned to the case suggested he could be relocated. Over the course of three months he was paid a total of $2,700, for rent, meals and incidentals. Shidie understood that if he did not testify in this case, he would be in contempt of court and have to serve six years in prison for the robbery he did in Long Beach.

At trial, Los Angeles Police Officer Brian Cooney testified as [*10]  a gang expert. He is familiar with the BSV gang. The gang has been in existence since the 1970s, is associated with the color red, and controls a territory in South Los Angeles. The gang's primary activities are vandalism, narcotics sales, robberies and murders. At the time of this shooting, there were approximately 170 BSV gang members. Three predicate crimes committed for the BSV gang were admitted, including a 2006 assault conviction of appellant.

Officer Cooney found a rap video about BSV on YouTube which was played for the jury in which gang hand signs were shown. Appellant is shown in the video making gang hand signs and holding a gun behind his back. Officer Cooney opined that the video was shot at the Bottum's Up recording studio.

A second YouTube video was also posted online. In it appellant is talking to a documentarian holding a camera and asking him questions. Appellant boasts about his gang membership and exploits, including a prior murder he committed as a juvenile, when he was considered a "menace to society." He says he does not do drive by shootings and instead does "walk up" shootings and he considers himself "trigger happy" and is willing to shoot at anyone or anything. [*11]  In the video, at one point, he is holding a "granny" gun, which he says is old. He brags about drug use, and throws plastic wrapped crack cocaine on the carpet while others in the room laugh.

In Officer Cooney's opinion, when appellant suffered his previous conviction in 2006, appellant was a documented member of BSV with the moniker of "Chabo." Appellant was sentenced to four years in prison for his 2006 conviction, but since his release from prison, there is no documentation as to where appellant lives or whether or not he still associates with the gang. However, in Officer Cooney's opinion, no one can ever disassociate from a gang and anyone who has gang tattoos is an active gang member. Appellant has various gang tattoos on his body, including one that probably indicates he killed a rival Crip gang member.

Officer Cooney explained that the immediate area where the shooting occurred is controlled by the Crips. Previously, the neighborhood was controlled by BSV, but then Crips started to move in. Crips graffiti was seen around the area of the shooting. The incursion of the Crips gang members was causing tension in the neighborhood as it was seen as disrespectful to BSV.

In response [*12]  to a hypothetical mirroring the facts of this case, Officer Cooney opined that the crimes were committed "for the benefit of, at the direction of or in association with a criminal street gang." In his opinion, the shooter was working on behalf of the BSV gang because he shot at a rival gang member in retaliation for the BSV gang member who was shot 17 days earlier. The crime established fear among rival gangs and demonstrated the gang's potential for violence.

Discussion

1. Admission of YouTube videos

Appellant contends the trial court abused its discretion in admitting the two videos found on YouTube because the videos were not authenticated, were old, were cumulative and were extremely prejudicial. He contends this error violated his Fourteenth Amendment rights to due process and a fair trial. The trial court did not abuse its discretion. There was no violation of appellant's constitutional rights.

a. Authentication

Authentication of a writing, including a photograph, is required before it may be admitted in evidence. (§§ 250, 1401.) Authentication is determined by the trial court as a preliminary fact. (§ 403, subd. (a)(3).) Authentication is defined as "the introduction of evidence sufficient to sustain a finding that it is the writing [*13]  that the proponent of the evidence claims it is or . . . the establishment of such facts by any other means provided by law." (§ 1400.)

"As with other writings, the proof that is necessary to authenticate a photograph or video recording varies with the nature of the evidence that the photograph or video recording is being offered to prove and with the degree of possibility of error. (Annot., Authentication or Verification of Photograph as Basis for Introduction in Evidence (1950) 9 A.L.R.2d 899, 900.) The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. (2 [Broun,] McCormick, [on Evidence (7th ed. 2013) Authentication] § 221, pp. 82-83.) The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1434-1435 (Valdez).) Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.)" (People v. Goldsmith (2014) 59 Cal.4th 258, 266-268.)

"A photograph or video recording is typically authenticated [*14]  by showing it is a fair and accurate representation of the scene depicted. [Citations.] This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.] It may be supplied by other witness testimony, circumstantial evidence, content and location. [Citations.]" (People v. Goldsmith, supra, 59 Cal.4th at pp. 267-268.)

Here, the prosecutor relied on the testimony of gang expert Officer Cooney and the contents of the videos for authentication. Officer Cooney testified that it was very common for gangs to post videos on the internet, and police used the videos on a daily basis to obtain information about gangs. According to the officer, gangs "love to put this stuff out there." The videos were discovered in an internet search using the name of the gang.

There was no clear evidence showing when the videos were posted on YouTube. Dates ranged from 2006 through 2008. The creation of the interview video (Exhibit 5) can be dated from appellant's statement that he is "28 right now." Appellant was born in July 1977. Thus, the video was filmed sometime between July 2005, when appellant turned 28, and July 2006, when he turned 29. There is no information showing when [*15]  the music video (Exhibit 1), was made, although it appears undisputed that it was made before appellant's last prison term, which began in late 2006. Since the people in Exhibit 1 also appear in Exhibit 5, and there is a similarity of clothing in the two videos, it is reasonable to infer that the two exhibits are of a similar age. The crimes in this case occurred in June 2010, making the videos four or five years old at the time of the crimes.

Both videos were offered by the prosecution to prove various aspects of the gang enhancement. The Exhibit 1 music video was offered primarily to show the existence of BSV as a criminal gang consisting of three or more persons with common signs and symbols and a pattern of criminal activity, and to show appellant's membership in the gang. The Exhibit 5 interview video was offered to show a pattern of criminal activity by BSV, appellant's involvement in BSV and his access to a firearm similar to the one used in the murder.

Officer Cooney described Exhibit 1 as a rap video. This matches the content of the video, which contains shots of one or more persons wearing headphones and singing in front of a microphone and also shots in which a number of people [*16]  are moving in time to the music. In both interior and exterior scenes, many of the people are looking into the camera and making gestures, demonstrating that they are aware they are being filmed. The video is a montage of still photos and video clips. Thus, the video clearly depicts a performance.

Officer Cooney testified that he recognized appellant in the video, and there appears to be no dispute that he is in the video. Officer Cooney also testified that he recognized the gestures made by the people in the video, including appellant, as gang signs for the BSV gang. Virtually everyone in the video is wearing red, the color associated with BSV. Many are wearing matching black or white T-shirts.

Officer Cooney believed the video was made at Bottum's Up, a recording studio at 5020 South Central which was a BSV gang hang-out. The video contains some images which appear to be the inside of a recording studio. As appellant's trial counsel pointed out, other images in the video show the outside of the Fun Zone, a business located at 5513 South Hooper, a few blocks away from Bottum's Up. Some interior images appear to have been shot at the Fun Zone as well. The Fun Zone was also a BSV hang [*17]  out.³

3   According to a map used by the defense during the cross-examination of Officer Cooney, the Fun Zone appears to be in territory claimed by BSV. (Def. Exhs. A & B.)

Officer Cooney's testimony, plus the contents of the video, is sufficient to support a finding that the video is authentic, that is the video is a rap music video made by a group of BSV gang members at one or more of their gang hangouts, to celebrate or promote BSV and its lifestyle.

Exhibit 5 shows what appears to be an informal interview of appellant by an unidentified filmmaker. It too appears to be a video celebrating or promoting BSV. Thus, the content of the videos matches the circumstances of Officer Cooney's discovery of it on YouTube. The video was clearly designed for an audience. It has been edited in several places. There is an opening title sequence with the words "Bloodstone Villains" with music playing.

This video shows appellant and several other gang members in a small room with two couches, talking. Appellant speaks about being a BSV gang member, about BSV's rivalry with other gangs and about narcotics sales. Appellant and another man take turns holding a revolver during the video. Throughout the video, [*18]  appellant and the others use gang slang such as "crabs" and "granny." Appellant frequently looks at the camera while speaking, and there can be no doubt that he is aware that he is being recorded.

As the trial court noted, there are indications that the conversation in the video was not spontaneous. At various points, the person filming the video asks appellant a question and receives a response. Some questions suggest the film is meant for an audience, perhaps outside the BSV gang. For example, the filmmaker refers to a firearm and says, "Man I see you stay ready, huh, you -- you was telling those niggas stay ready, huh?" The filmmaker also asks, "But you say you was on that water, huh? What's -- what's -- what's that, man for those that don't know?"

The contents of the video, together with Officer Cooney's testimony, are sufficient to support a finding that the video is authentic, that is the video was created to promote or celebrate BSV and its lifestyle for an audience.