Social Media Photo Subject to Traditional Authentication  — Once Photo Admissible to Show Gang Membership, Caption Corroborating That Not Offered for Truth But for Fact Statement Was Made, Thus Not Hearsay
People v. Thomas, 2019 Cal. App. Unpub. LEXIS 8244 (Cal. Ct. App. Dec. 11, 2019) (unpublished):
Defendant Byran Antoine Thomas attended a birthday party on March 21, 2014. He shot and killed one of the other partygoers, who was a member of a rival gang. Defendant claimed at trial that he was not the shooter, even though three witnesses, including two of the people accompanying him to the party, testified he was the shooter.
The jury found defendant guilty of first degree murder, and found true the allegations that defendant personally discharged a firearm causing death, and committed the murder for the benefit of, at the direction of, or in association with the Zilla street gang. The trial court found true the allegations that defendant had previously been convicted of two serious and violent felonies. The trial court tripled the term for the current conviction because of defendant's two prior felonies, sentencing him to a term of 75 years to life plus a consecutive 25-year-to-life term for the firearm enhancement.
Defendant argues the trial court should have instructed the jury that two witnesses, Shedrick Attaway and Danny Boston, were accomplices whose testimony [*2] was required to be corroborated. We conclude the trial court was not obligated to give such an instruction because there was no evidence defendant's associates were accomplices.
Defendant argues the gang expert's testimony was based on inadmissible hearsay in violation of his right to confront the witnesses against him. We conclude most of the expert's testimony was not a violation of the hearsay rule and no showing has been made the statements were testimonial. The small amount of testimony that was a hearsay violation constituted harmless error.
We conclude the trial court did not abuse its discretion in failing to declare a mistrial when the expert gave testimony about a photograph on defendant's phone that the parties had agreed to exclude. The testimony was brief and was not prejudicial. We will affirm the judgment, but will remand for the trial court to consider whether to strike defendant's firearm enhancement, because the trial court had no discretion at the time of sentencing to strike the enhancement. A subsequent change in the law has bestowed such discretion upon the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, Danny Boston, Shedrick Attaway, and Mack Ballard took [*3] a light rail train together to a party hosted by Areanna Nunnelly, Attaway's ex-girlfriend. Around 35 people were at the party. Some were dancing, and some were smoking outside. Two men, murder victim Davon Brown and Douglas Livingston, arrived with two other people. Attaway described them as "flexing" and "big-dogging." He said they were on a "different hype" than everybody else, and were acting tough. They changed the whole vibe of the party. Attaway testified his group let each other know to stay on their toes, because the two men did not give a good vibe to the party. They were bumping people and looking the men in their face.
Brown went inside the apartment and back out a few times. Nunnelly testified she heard Boston ask Brown, "You from out here?" Brown said, "No." Boston then told Brown that he looked like the guy from Starz. Brown said, "No" and turned his back. He seemed mad he had been asked the question.
One of the songs being played at the party was Third World, which was associated with the Starz gang. Defendant asked Nunnelly if he could play a song. The song he played was by Little Tim, who is a member of the FAB (Fourth Avenue Bloods) street gang. A friend of Nunnelly's [*4] turned off the song, told defendant he could play the song in his car or at his house, but not at the party. Defendant asked if someone was mad that he was playing the song. Brown said he wanted to hear the Third World song again.
One time when Brown and Livingston were outside smoking, they were approached by defendant, Attaway, Ballard, and Boston, who had their hoods tied down over their heads. Defendant asked Brown and Livingston where they were from. That question could mean "who are you banging with," or "what street [do] you stay on," or "who is your family?" Livingston said he was from Oakland and Brown said he was from Fresno. A woman came out then and told them all to either leave or go back inside the apartment. They went back to the house. Livingston stood by the back door, and Brown went inside. Later, Livingston heard gunshots.
Attaway and Boston both testified that defendant fired the shots that killed Brown. Defendant argued at trial that he was not the shooter, but that Attaway did the shooting. Defendant was about six feet tall with dreadlocks, and was wearing a black top and black hoodie. Attaway was roughly defendant's height, but was wearing gray shorts, a black [*5] shirt, glasses, and was heavier. Attaway had closely cropped hair. Boston testified he recognized defendant because he was wearing a hoodie, because of his hair, and because he was about six feet tall. In addition to Boston and Attaway, Shacoya Yates testified she saw defendant shooting Brown. She recognized defendant because he had been trying to get her to dance with him that night.
Domonique Smith was sitting in her car outside the party and talking to a friend when she heard gunshots. People scattered, and she saw one person in a black hoodie and jeans with a gun running from the direction of the party. The person she saw was approximately 5 feet 10 or 11 inches tall, and had an average build and dreadlocks. The man touched her car.1
After the shooting, Boston, Attaway, Ballard, and defendant met at a nearby apartment where Boston's friend, Devonte Wilkins, lived. The next morning, they walked back to the light rail station and went home. Defendant was arrested and his apartment was searched. In the apartment officers found a black hoodie sweatshirt that was tested for gunshot residue. Particles consistent with gunshot residue were found on the front upper right chest, front upper [*6] left chest, front right forearm and cuff, and side right forearm and cuff.
Detective Jonathon Houston testified as the prosecution's gang expert. He testified that Oak Park Bloods are an African-American street gang. The main rivals of the Oak Park Bloods are G-MOB and its various subsets, which include BAY (Bad Ass Youngsters), Starz, Guttah, Del Paso Heights Bloods, and Trigga Mob. Oak Park Bloods are the parent or umbrella gang, to which all subsets have allegiance. The subsets are Zilla, Guns Up, and FAB. Under the subsets are cliques, or tight-knit groups of people that hang out together. Zilla members are Oak Park Bloods that rise above and beyond the regular members, and are more violent, commit more crimes, and are more tightlipped about their involvement.
The Seavey Circle area, where the crime took place, is not claimed by any particular gang. It is common for both G-MOB and Oak Park Bloods to come together in a violent way in that neighborhood because it is low-income housing. Zilla claims the color red, in common with the Oak Park Bloods.
The primary criminal activities of Zilla are narcotics possession and trafficking, weapons possession and trafficking, felony assault with [*7] a deadly weapon likely to produce great bodily injury, and homicide. Detective Houston testified to two predicate offenses of the Zillas, a felony assault, robbery, and sexual assault that occurred at the county jail against G-MOB members, and a mayhem conviction with a gang enhancement. Both cases resulted in convictions, and certified copies of both convictions were admitted into evidence.
Detective Houston testified about the process of validating gang members. He testified that he had known defendant since 2005, when he was a school resource officer at Hiram Johnson High School. Houston testified that in preparation for his testimony, he had reviewed 13 different reports, and had checked defendant's Facebook accounts and the pictures posted to the accounts. Houston's opinion was that defendant was a validated member or current member of the Zilla street gang. One of the reports Houston reviewed was a police report from 2009 indicating defendant admitted to detectives that he was a member of FAB, which is a subset of Oak Park Bloods, and that he had been a member for about two years. Houston explained that if defendant was associated with FAB in 2009, it meant he had not yet risen [*8] to the level of being a Zilla member. Zilla members also use the word "Uzzy" in their monikers. It is shorthand for Underworld Zilla. Defendant's monikers are "Uzzy Twin," "Twin," "Hands," and "T-Raw."
Also in 2009, Detective Houston was patrolling the Oak Park neighborhood and came into contact with defendant. Houston and his partner asked defendant if he was still a Blood member, and defendant admitted he had been a FAB member for approximately four years. Defendant showed Houston several gang-related photographs in which he was displaying FAB gang hand signs. Defendant was with two other known members of Oak Park Bloods.
In 2013 defendant was contacted while he was a passenger in a vehicle. He had gang-related photographs on his phone, he was wearing a red hat, and he had red ink tattoos, red being the color of the Oak Park Bloods and Zilla. He was also in the company of another gang member during that contact. Again in 2013 defendant was contacted during a traffic stop as a passenger, and he was again in the company of a validated member of the Oak Park Bloods.
One of defendant's tattoos says "Only God can judge me" in red ink. Both the red ink and the phrase are common among Oak [*9] Park Bloods. Another tattoo says "Royalty and respect." Respect is extremely important among gang members. One of his tattoos is of a star with bullet holes in it. This shows disrespect toward the Zilla's and Oak Park Bloods' rival gang—Starz. Defendant has "Shootah Gang" tattooed on his hand to pay tribute to Nicholas Newsome, who is in prison. Defendant also has the words "World" and "Bitch" tattooed on his middle fingers, signifying "fuck the world" and "fuck a bitch."
Detective Houston testified that several of defendant's Facebook posts showed him displaying gang signs. Houston also identified defendant in a photograph holding a firearm.
In the gang culture, asking someone where they are from is basically asking them what gang they are from. It is an attempt to find out if they are a friend or rival.
The victim had been a validated member of G-MOB at the time of the shooting. He was validated as a G-MOB Starz associate in 2012. The victim had tattoos of stars on both of his hands, something Starz members commonly have tattooed on themselves in visible places. Livingston was also affiliated with the Starz criminal street gang.
No Duty to Instruct on Accomplice Testimony
[*10] The Supreme Court has "held that '[w]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,' including the need for corroboration." (People v. Tobias (2001) 25 Cal.4th 327, 331.) Defendant argues Boston and Attaway were accomplices, and that the trial court had a sua sponte duty to give instructions on accomplice testimony. We disagree.
Penal Code2 section 1111 provides: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." An accomplice is defined by statute as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Ibid.) "To be chargeable with an identical offense, a witness must be considered a principal under section 31. . . . An accomplice must have '"guilty knowledge and intent with regard to the commission of the crime."' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 368-369.) The trial court need not instruct [*11] the jury on accomplice testimony where the evidence is insufficient as a matter of law to support a finding that the witness is an accomplice. (Ibid.)
Thus, the trial court is not required to instruct the jury on accomplice testimony unless there is evidence the witness: (1) personally committed the crime, or (2) knew of the criminal purpose of the person who committed the crime, and intended to and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime. (CALCRIM No. 334.) There was no evidence that either Boston or Attaway personally committed the crime, even though defendant argued Attaway was the shooter. Nor was there evidence they knew of defendant's criminal purpose and aided him in the commission of the crime. The only evidence defendant points to is that Attaway and Boston were friends, that they went to the party with defendant, that they were members of the same gang, that they had concerns about the presence of Livingston and Brown at the party, that Boston asked Brown where he was from, that they talked to Livingston and Brown at the party, that defendant told Boston to see if Brown and Livingston were still at the party, and that they all fled after [*12] the shooting. None of these facts are evidence that Boston or Attaway knew defendant intended to kill Brown or that they aided defendant in the murder. Thus, the trial court had no duty to give the instruction on accomplice testimony.
Moreover, the instruction "is not necessary when the witness does not claim firsthand knowledge of how the crime was committed, but merely testifies to what he or she saw or heard." (People v. Mackey (2015) 233 Cal.App.4th 32, 123.) Boston and Attaway did not testify to anything defendant said about his intentions prior to the murder, and did not testify that defendant confessed after the murder. The only inculpatory part of Boston's and Attaway's testimony was their statement that they saw defendant shoot Brown.
Also, there was corroborating evidence that defendant was the shooter. This fact was corroborated by the testimony of Yates and the fact that gunshot residue was found on a sweatshirt seized from defendant's apartment. Defendant argues the corroborating evidence was insufficient, but "'[c]orroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]' [Citation.] The evidence 'is sufficient if it [*13] tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.'" (People v. Lewis, supra, 26 Cal.4th at p. 370.) Thus, even assuming the trial court erred by failing to give an accomplice instruction, the error was harmless.
Gang Hearsay Testimony
Defendant was charged with a gang enhancement pursuant to section 186.22, subdivision (b)(1). The jury found the charge true. Section 186.22, subdivision (b)(1) imposes additional punishment where a defendant commits a felony "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 . . . ." Defendant argues the gang expert's testimony consisted of inadmissible hearsay to the extent the gang allegation must be reversed. Defendant further argues the hearsay evidence to which the expert testified was testimonial in nature, and violated defendant's Sixth Amendment right to confront the witnesses against him.
Defendant's argument is based on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which was decided a few months after defendant's trial. Sanchez held that an expert's case-specific statements concerning a defendant's gang membership constituted inadmissible hearsay where they were presented as true statements of [*14] fact without the requisite independent proof. (Id. at pp. 670-671.) The court held that such hearsay statements that were also testimonial should have been excluded for violation of the Sixth Amendment right to confront and cross-examine witnesses. (Ibid.) The court explained that "[c]ase-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) An expert may rely on hearsay in forming an opinion and may tell the jury of that reliance in general terms. (Id. at p. 685.) An expert may also help the jury understand the significance of case-specific facts, and may give an opinion about what such facts mean. (Id. at p. 676.) But, an expert may not supply case-specific facts unless: (1) the expert has personal knowledge of such facts, (2) the facts are independently proven by competent evidence, or (3) the statement is covered by a hearsay exception. (Id. at pp. 676, 686.)
Case-specific facts are to be distinguished from "generally accepted background information." (Sanchez, supra, 63 Cal.4th at p. 676.) An expert may testify to background information without violating the hearsay rule. For example, the fact that a person has a tattoo is case-specific information that may be established by a witness or a photograph. (Id. at p. 677.) That [*15] the tattoo is the symbol of a particular gang, and that it shows the person tattooed belongs to the gang is generally accepted background information. (Ibid.)
The People argue defendant forfeited the issue by failing to raise an objection. As defendant makes an alternate claim of ineffective assistance of counsel, we shall address the issue. We examine each objection defendant now raises.
A. Police Reports
1. Arguments on Hearsay Grounds
Detective Houston relied on four police reports in forming his opinion.3 There was no expert hearsay violation as to three of the reports, because the officers involved testified. In one case, Houston was the officer involved. As Sanchez explained, experts are given more latitude than lay witnesses when relating information to the jury. (Sanchez, supra, 63 Cal.4th at p. 675.) An expert may testify concerning his or her general knowledge, even if the testimony is hearsay. (Id. at p. 676.) Additionally, an expert may testify to case-specific facts about which he has personal knowledge, and if a witness with personal knowledge of case-specific facts testifies at trial, the expert may rely on those facts and give an opinion about what those facts mean. (Ibid.) That is what happened here.
The reports that were admissible without a hearsay violation were: (1) a July 2009 contact in which Officer Scott MacLafferty, who testified at trial, contacted defendant and validated him as a gang member based upon defendant's admission and the fact that the number 2126 was required to unlock defendant's phone4; (2) a 2009 case Detective Houston worked where defendant admitted to Houston that he had been a FAB member for approximately four years, in which defendant showed Houston several gang-related photographs, and where defendant was in the company of two other known members of Oak Park Bloods; and (3) a February 2013 contact in which Officer Nicholas Knoblock (who testified at trial) contacted defendant (who wore gang-related clothing and sported gang-related tattoos) and searched defendant's cell phone, which contained gang-related photographs. Specifically with regard to the third contact, Knoblock testified that defendant wore the color red (which was associated with Blood gangs), admitted being a member of the Oak Park Bloods and affiliated with Zilla, sported red tattoos, and was with another member of the Oak Park Bloods. Houston used these reports as the basis for his expert [*17] opinion that defendant was a member of the Zilla street gang.
The fourth police report was also from 2013. Detective Houston's testimony regarding the contact was a single sentence: "[Defendant] was contacted during a traffic stop as a passenger in a vehicle, and he was in the company of another validated member of the Oak Park Bloods." The report was part of the evidence Houston relied on to support his expert opinion that defendant was a member of the Zilla subset of the Oak Park Bloods. While this report technically was inadmissible under state hearsay rules, its admission was harmless. Improper admission of a hearsay statement is subject to the harmless error test set for in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Seumanu (2015) 61 Cal.4th 1293, 1308.) Thus, we examine whether it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, at p. 836.)
We conclude it is not reasonably probable that the omission of this evidence would have resulted in a more favorable outcome for defendant. The testimony from the report was much less specific than the other three incidents that did not violate the hearsay rule, and did not add any information that was not already properly in evidence.
2. Arguments [*18] on Sixth Amendment Grounds
Defendant argues all 13 contacts based on police reports were testimonial hearsay offered without the opportunity to cross-examine the witnesses in violation of his Sixth Amendment right to confront the witnesses and evidence against him. As we have already indicated, in the case of nine of the police reports, no hearsay statements were admitted, thus no testimonial hearsay was admitted in violation of defendant's confrontation rights. As to two of the police reports that were introduced by the officers involved, we also concluded there was no state law hearsay violation because Sanchez indicates an expert may testify about case-specific facts that are established by witnesses with personal knowledge of those facts. (Sanchez, supra, 63 Cal.4th at p. 676.) A third police report did not violate state hearsay law because Detective Houston had personal knowledge of the facts. Defendant argues that because the police reports were produced in the course of an ongoing criminal investigation, they were testimonial evidence that violated his Sixth Amendment right to confront the witnesses and evidence against him.
"Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial [*19] testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, 63 Cal.4th at p. 689.)
The first contact was memorialized in a police report indicating defendant had been "contacted" by gang detectives and admitted to them that he was a gang member. The contacting officer, MacLafferty, testified he was working enforcement on the light rail trains. He testified he made contact on the train with defendant and validated defendant based on defendant's admission to being a gang member, his use of a gang symbol to unlock his phone, and gang-related photographs on his phone. Defense counsel did not cross-examine MacLafferty. Sanchez indicates police reports are testimonial if they are "compiled during police investigation of . . . completed crimes." (Sanchez, supra, 63 Cal.4th at p. 694.) There is insufficient evidence from MacLafferty's testimony to conclude the police report related to the investigation of past criminal activity. It is defendant's burden to affirmatively demonstrate error. (People v. Ochoa (2017) 7 Cal.App.5th 575, 585.) Because defendant did not object to the admission of the evidence, or cross-examine the officer, the record is not clear enough to conclude [*20] whether the expert's testimony involved testimonial hearsay. No confrontation clause violation has been demonstrated.
The second contact was memorialized in a police report, but the facts were related by Detective Houston, who had firsthand knowledge of the contact. Defendant's statement to Houston that he was still a gang member was not hearsay because it was an admission. The other occurrences during the contact—being with other gang members and having gang-related photographs on his phone—do not constitute out-of-court statements. As there was no hearsay involved in the second contact, there was no Sixth Amendment violation.
The third contact was recorded in a police report which stated that defendant was contacted when he was a passenger in a vehicle. The contacting officer, Knoblock, testified he was on patrol when he contacted defendant. Knoblock saw that defendant had gang-related photographs on his phone, wore gang-related clothing, displayed gang-related tattoos, and was with another gang member. Defendant admitted he was a gang member. Defense counsel did not cross-examine Knoblock. The record is not clear enough to conclude whether the police report on which the expert relied involved testimonial hearsay. No [*21] confrontation clause violation has been demonstrated.
The fourth and final contact was taken from a police report. The only statement made by the expert was that defendant "was contacted during a traffic stop as a passenger in a vehicle, and he was in the company of another validated member of the Oak Park Bloods." The record is insufficient to determine whether testimonial hearsay was involved. Defendant has not established a confrontation clause violation.
In any event, the admission of the evidence was harmless beyond a reasonable doubt. The police reports on which the expert testimony relied were admitted to show that defendant was a gang member. Defendant's theory of the case did not contest that fact, but instead argued he did not pull the trigger. In closing argument, defense counsel admitted defendant's gang membership: "Now, let's just be honest. Mr. Thomas is a gang member. I have never, ever said he wasn't. He has never said he wasn't. It's in his pictures. It's in his tattoos. That's not really an issue in this case. What is at issue is who pulled the trigger."
Defendant argues Detective Houston said he had "seen" monikers for defendant of "Uzzy Twin, Twin, Hands, and T-Raw." Defendant claims this information [*22] was obtained from outside sources and is classic hearsay. Hearsay is a statement that is: (1) made by someone other than the testifying witness, and (2) offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Defendant's monikers are not an out-of-court statement, thus not hearsay. Had Houston testified that he had read a report stating that defendant used the monikers Uzzy Twin, et cetera, that would be an out-of-court statement offered to prove the truth of the matter stated, but that is not what Houston said.
C. Pictures on Facebook
The prosecutor showed Detective Houston defendant's photograph. Houston testified the photograph accurately reflected the way defendant looked when Houston had contact with him and upon his arrest. Houston then identified a picture of defendant and the tattoos on his forearms, pictures of defendant's forearms and hands, a photograph of defendant on Facebook, a picture of Oak Park Bloods members with a caption, a Facebook photograph of defendant displaying gang hand signs, two Facebook photographs of defendant with captions, and a photograph of defendant holding a gun. Defendant argues these were all hearsay.
The photographs of defendant's tattoos and of defendant [*23] holding a gun were admitted to show defendant's gang membership. They were properly authenticated by Detective Houston for this purpose. Pictures of tattoos are a case-specific fact that can be established by a witness who saw the tattoo, or by an authenticated photograph. (Sanchez, supra, 63 Cal.4th at p. 677.) The foundation required for the photographs was merely sufficient evidence for a trier of fact to find that the photograph was what it purported to be, i.e., that it was a photograph of defendant or of other gang members. (See People v. Goldsmith (2014) 59 Cal.4th 258, 267.) Houston was able to identify defendant and his tattoos, thus the pictures were not inadmissible hearsay. To the extent those pictures also contained captions, the captions, too, were introduced to show that defendant was a gang member. As such, the captions were not admitted to establish that what was said was true, but merely that the statements were made.5 To the extent some of the content consisted of defendant declaring himself to be a Zilla, such statements were not hearsay because they fell under the exception for an admission of a party. (Evid. Code, § 1220.)
D. Gang Validation of Victim
Detective Houston testified he had researched the victim's background and determined that he was a validated G-MOB [*24] member, who had been validated in 2009. Houston stated that Brown's "jail classification remarks indicated that he needed to be separated from Zilla, Oak Park Bloods, and Crips because they were his enemies. [¶] Then in classification, it also indicated that he was validated as a G-MOB Starz associate in 2012." Houston also testified generally that members of Starz commonly have star tattoos. Houston was then shown two autopsy photographs of the victim showing star tattoos on his hands. The autopsy photographs were properly authenticated by the forensic pathologist.
Defendant argues the testimony that Brown was a validated member of G-MOB in 2009 and 2012 and that his jail classification indicated he should be separated from rival gangs was hearsay. Detective Houston's expert testimony about the 2009 validation of Brown was not a hearsay violation because the officer who validated Brown testified at trial. As previously indicated, an expert may not supply case-specific facts about which he has no personal knowledge, but if a witness with personal knowledge of case-specific facts testifies at trial, an expert my give an opinion about what those facts mean. (Sanchez, supra, 63 Cal.4th at p. 676.) That is what happened here. [*25] Officer Neil Cybulski testified that he transported Brown to juvenile hall in 2009, and once there completed a gang validation of Brown. Cybulski testified he determined Brown was a validated member of Starz based on his star shaped earring and Brown's acknowledgement that he was a member of Guttah Boyz, and that Guttah Boyz was a younger subset of the Starz gang. On the basis of this information, Houston opined that the instant killing was motivated by gang rivalries.
Detective Houston's testimony regarding Brown's 2012 validation from his jail classification was improperly admitted hearsay. However, given the testimony regarding Brown's earlier validation that was properly admitted, as well as the tattoos from Brown's autopsy photos, the admission of this statement was harmless.
Motion for Mistrial
As indicated, Detective Houston testified regarding four instances of police contact with defendant. While testifying as to the third contact, he was asked to describe the contact, and he responded that defendant had a photograph of a handgun on his phone. Defense counsel immediately asked to approach. Outside the presence of the jury and of Houston, defense counsel stated that she and [*26] the prosecutor discussed what evidence the expert would testify about to prove defendant's gang membership. They agreed there would be no discussion of the gun photograph listed in the report Houston had just testified about. Defense counsel asserted Houston had intentionally mentioned the gun picture, and asserted the statement was "incredibly prejudicial."
The prosecutor acknowledged that she and defense counsel had reached an agreement regarding the introduction or omission of several items of evidence and that she had reviewed all of those items with Detective Houston just prior to the jury coming in. The prosecutor did not know why Houston had described the picture, but stated that she had given him a lot of information right before the jury came in. The prosecutor also argued the mistake was not serious enough to warrant a mistrial, since the jury would be seeing a much more recent photograph of defendant with a gun.
The court found that Detective Houston's mistake was not intentional and did not rise to the level of a mistrial because it was one statement and there was no description of the gun. The court also found the statement was not prejudicial because another more recent [*27] gun photograph would come into evidence. The court noted the witness's statement had been in violation of an agreement between the parties, but indicated the evidence might well have come in over an objection, had there been an objection to it. Although defense counsel never specifically asked for a mistrial, both the prosecutor and the court agreed the testimony in violation of the parties' agreement did not warrant a mistrial.
Defendant now argues that the trial court abused its discretion when it denied the mistrial motion. Assuming defendant did in fact make a mistrial motion, we agree with the People that the trial court did not abuse its discretion in finding the testimony did not warrant a mistrial.
"A motion for mistrial presupposes error plus incurable prejudice." (People v. Gatlin (1989) 209 Cal.App.3d 31, 38.) Neither is present here.
As indicated there was no court order excluding testimony regarding the gun photograph found on defendant's phone in 2013. Defense counsel and the prosecutor merely had an agreement that the witness would not divulge the content of the photograph. The court indicated it may or may not have allowed the testimony had a motion to exclude been made.
A trial court should not declare a mistrial [*28] unless it is apprised of prejudice that is incurable by admonition or instruction. (People v. Lewis (2008) 43 Cal.4th 415, 501.) "'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. . . .' [Citation.] A motion for a mistrial should be granted when '"'a [defendant's] chances of receiving a fair trial have been irreparably damaged.'"' [Citation.]" (People v. Collins (2010) 49 Cal.4th 175, 198-199.)
The statement defendant argues was incurably prejudicial is Detective Houston's statement regarding a police contact in 2013: "He had a photograph of a handgun on his phone." Defendant argues the statement was highly prejudicial because the murder was committed with a gun and the testimony "was devastating to appellant's defense that Attaway fire[d] the shots." We disagree.
The jury did not see the gun photograph, but only heard Houston's brief statement. Another photograph of defendant holding a gun shortly before the murder was properly introduced. There was overwhelming evidence of defendant's gang involvement, defense counsel conceded defendant's gang involvement, and there were three eyewitnesses who testified he was the shooter. The brief comment [*29] was not prejudicial, and the trial court did not abuse its discretion when it decided not to declare a mistrial.
Discretion to Strike Firearm Enhancement
The jury found true the allegation that defendant personally discharged a firearm causing death within the meaning of section 12022.53, subdivision (d). For the enhancement the court sentenced defendant to a consecutive term of 25 years to life. At the time defendant was sentenced, section 12022.53 did not allow the trial court to strike the firearm enhancement in the interest of justice. (See former § 12022.53, subd. (h); Stats. 2010, ch. 711, § 5.) Effective January 1, 2018, Senate Bill No. 620 amended section 12022.53 to provide that the court may strike or dismiss an enhancement in the interest of justice. (Stats. 2017, ch. 682, §§ 1 & 2.)
Defendant argues the amended statute is retroactive, and remand is appropriate to permit the trial court to exercise its discretion to strike the firearm enhancement. The People agree that the amended section is retroactive, but argue remand is not appropriate because the record shows the trial court would not have exercised its discretion to strike the enhancement. The People point to the trial court's remarks during sentencing calling out defendant's "disrespectful" attitude, lack of [*30] remorse, and the "cruel, callus vicious" nature of the crime. The People argue the trial court's remarks indicate a remand would be futile.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) We will follow the general rule and allow the trial court the opportunity to exercise its discretion in the first instance, however unlikely it may be that the trial court will exercise that discretion.
We remand to allow the trial court to exercise its sentencing discretion under Penal Code section 12022.53, subdivision (h) concerning whether to strike the firearm enhancement. The judgment is otherwise affirmed.
/s/ BLEASE, Acting P. J.
/s/ HULL, J.
/s/ DUARTE, J.
End of Document
1 Officer Justin Freeman testified that Smith reported to him that she saw someone touch a Volvo parked two parking spots to the north of where Smith was parked. At that time there was a lot of dew on the Volvo, and there appeared to be a smeared handprint on it. The print was lifted but it was not a match for defendant.
3 Detective Houston stated that he had reviewed over 13 different reports. However, he gave no case-specific facts from any reports other than the four considered here. An expert may "rely on hearsay in forming an opinion, and may tell the jury in general terms [*16] that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.) To violate the hearsay rule, the expert must relate case-specific out-of-court statements and treat the content of those statements as true statements that support the expert opinion. (Id. at p. 686.) No hearsay evidence from the other nine reports was admitted, thus there was no hearsay violation as to the remaining reports Houston considered. This is not a case where the expert "'"under the guise of reasons [for an opinion] [brought] before the jury incompetent hearsay evidence."' [Citation.]" (Id. at p. 679.)
4 The number is significant because U is the 21st letter of the alphabet and Z is the 26th letter of the alphabet. UZ stands for Underworld Zilla.
5 The captions were: (1) "Shoot a Gang" on the picture of the Oak Park Bloods; (2) "Speakin' on my name the wrong way in front of the wrong nigga. Bitch, I'm really Uzzy. I'll show you how to dome a nigga. No FB [Facebook] wolfin'. Catch me in the streets where it's really beef. Uzzy gang[;]" and (3) "We on that Starz down shit. 19-4. Mafia movement."
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