Ross v Santoro, 2017 U.S. Dist. LEXIS 74564 (C.D. Cal. Mar. 31, 2017), adopted, 2017 U.S. Dist. LEXIS 74548 (C.D. Cal. May 15, 2017):

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Background¹

1   The following summary is taken from the opinion of the California Court of Appeal. Because petitioner challenges the sufficiency of the evidence, the Court has independently reviewed the record, which confirms that the state appellate court's summary of the evidence is a fair and accurate one. Citations to the record are this Court's.

[Prosecution case]    About 7:00 p.m. on July 28, 2009, 17-year-old Eric Moton was shot numerous times in a small park a block from his home in Lynwood. (Undesignated date references pertain to 2009.) Just before the shooting, Moton and his girlfriend, Monique Sneed, were sitting on a bench alongside a basketball court at the back of the park, which was enclosed on three sides by walls and accessible only from the front. The sun had not yet set, and children were playing on the basketball court and in other areas of the park. [Reporter's Transcript on Appeal ("RT") 927-935, 938, 1034-1037, 1217]. Moton and Sneed saw defendant walk into the park from the front. [RT 935-939, 109-1042]. Moton knew defendant because they had attended Lynwood High School together. Moton knew defendant as "Little Man," and he recognized defendant right away from his "body language." [RT 931-934, 967-969].

While Moton [*2]  and defendant were in school together, defendant became a member of the Lynwood Neighborhood Crips gang and proclaimed his membership and moniker of "Caccy Blue" to Moton. [RT 932-934, 967-969]. Moton testified that, although [he] had been affiliated with the Palm and Oaks Gangster Crips gang, he was not a member, had never claimed to be a member, and had no tattoos. Moton never had any problems with any members of the Lynwood Neighborhood Crips gang, and had last seen defendant about one year before the shooting. [RT 930, 979-980, 989, 997, 1000, 2114-2115].

Defendant quickly walked straight toward Moton and Sneed. Sneed testified that defendant looked "really suspicious" and angry and held his hand inside his pants the entire time he was walking. [RT 1037-1040, 1045]. Sneed asked Moton if he knew defendant. Moton replied, "'Baby, that's Little Man from Lynwood Neighborhood.'" [RT 944, 1041, 1226]. Defendant stopped on the basketball court, about seven feet from where Moton and Sneed were sitting. Moton testified defendant had a "mean" look on his face. [RT 939-940]. Moton and defendant looked at one another. Moton said, "'I don't bang, man. Just stall me out,'" meaning, "Don't do [*3]  this." [RT 942-943, 970-971, 1042-1043]. Defendant replied, "'What? Fuck Jokes.'" [RT 943, 1041-1044]. "Jokes" was a disrespectful name for the Palm and Oaks gang. [RT 943-944, 3110].

Moton began running, but was trapped by the park walls behind him and on both sides of him. [RT 929, 937]. He thought he might be able to jump the wall to his left, so he ran toward it. Defendant began shooting. The other people in the park began screaming and running away. A gunshot struck Moton before he made it past the basketball court. Moton continued to run, but was struck by another bullet. He fell to the ground and attempted to crawl away. Defendant continued to shoot at Moton from behind. [RT 945-946, 1047]. Sneed testified defendant fired six or seven shots. [RT 1046-1047]. Defendant ran back to the park entrance and Moton crawled toward where Sneed had crouched behind one of the benches. Sneed phoned 911. [RT 946-948, 1035, 1045-1050].

***

Moton was in the hospital for two weeks and underwent several surgeries to repair the injuries caused by the gunshots. He suffered nerve damage in his left leg and one bullet remained lodged in his thigh. [RT 948-952].

Moton testified that at the time of the shooting defendant wore his hair in cornrows, that is, braids tied tightly to the scalp and hanging down in the back. Moton did not see tattoos on defendant's arms. [RT 974-975]. Sneed testified that at the time of the shooting defendant had "really fuzzy ... raggedy braids," that is, cornrows that needed to be taken out and redone. [RT 1045]. She did not see any tattoos on defendant's arms. [RT 1217, 1235]. Defendant was wearing a white T-shirt and gray basketball shorts. [RT 1040-1041]. Ramirez testified that the shooter was a thin African-American male wearing a white T-shirt who appeared to be 16 or 17 years old, and had cornrows or braids. [RT [*6]  1515].

Los Angeles Sheriff's Detective Hugo Reynaga did not know the identity of "Little Man" from the Lynwood Neighborhood Crips gang. Reynaga prepared a "sixpack" photographic array that did not contain defendant's photograph and showed it separately to Sneed, then Moton. [RT 1835-1839]. Sneed told Reynaga that the shooter was not in the sixpack, but she circled one photograph and told Reynaga that although the person in the photograph was not the shooter, he looked the most similar to the shooter. [RT 1837-1839]. Outside the presence of Sneed, Moton told Reynaga that defendant was not in the sixpack. Moton pointed to number four in the sixpack, who was Jerome Thomas, and said, "'I know this guy, but he is not the one who shot me.'" [RT 1835-1839]. Moton then used his mother's laptop computer to find a video on YouTube that he had viewed a few days before the shooting. The video, which was posted on YouTube in 2007, was played for the jury at trial. It showed defendant, who identified himself in the video as Caccy Blue, Jerome Thomas, and two other members of the Lynwood Neighborhood Crips gang Moton identified as Ashley and Brian pointing out their graffiti, making gang hand signals, [*7]  stating their gang monikers, proclaiming their gang's superiority to rival gangs -- including the Palm and Oak Crips gang, and insulting the rival gangs with statements such as "Fuck Jokes." Moton pointed to defendant in the video and told Reynaga that was the person who shot him. [RT 953-954, 990-991, 996, 999, 1838-1840]. Reynaga called Sneed into the room and Moton played the video again. Sneed identified defendant in the video as the person who had shot Moton. Moton did not tell Sneed the shooter was in the video before she identified defendant. [RT 1204-1205, 1228, 1839]. A few days later, Reynaga showed Sneed and Moton a new sixpack that contained defendant's photograph, and each identified defendant as the shooter. [RT 954-956, 1204-1208, 1234, 1839-1841]. Moton and Sneed also identified defendant at trial. [RT 963-964].

***

Reynaga, who at the time of the charged offenses was "in charge of investigating any gang-related crime in the City of Lynwood," served as the prosecution's gang expert. He testified that the Lynwood Neighborhood Crips and Palm and Oak Gangster Crips gangs claimed territories in Lynwood and were enemies. [RT 1842-1849, 1861, 1867-1874]. A third gang, the Lynwood Vario Segundo, actually claimed the park where the shooting occurred, but there was Palm and Oak gang graffiti on the basketball court at that park. [RT 1847-1848, 2104-2106]. Reynaga testified to the symbols used by the Lynwood Neighborhood Crips gang, which included "NY," as [*12]  well as the derogatory names they used for their rivals, such as "Jokes" for the Palm and Oak Gangster Crips gang. [RT 1850]. The primary activities of the Lynwood Neighborhood Crips gang are vandalism by graffiti, armed robberies, shootings, and murders. [RT 1852, 1859, 1879]. Reynaga also explained the meaning of the slang and graffiti in the YouTube video. [RT 1856-1871].

Reynaga opined that defendant was an active member of the Lynwood Neighborhood Crips gang and Moton was a member or affiliate of the Palm and Oak Gangster Crips gang. With respect to defendant, Reynaga based his opinion on the "N" and "H" tattoos on the inside of defendant's forearms, defendant's moniker Caccy Blue, the blue and yellow clothing defendant wore in the YouTube video, and defendant's statements and conduct in that video, which included pointing to his moniker in a gang "roll call" graffito. [RT 1865-1869, 2116-2117]. In response to the prosecutor's hypothetical question based upon the prosecution's evidence, Reynaga opined that the charged crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. [RT 1872-1874]. He further testified that the shooting [*13]  would benefit the gang by demonstrating "how hardcore the gang is," thereby generating respect for the gang and intimidating the community, which would make it easier for the gang to recruit new members and become stronger. [RT 1874-1878].

***

b. YouTube video featuring defendant

Just before the prosecutor played a DVD of the YouTube video featuring defendant, defendant objected that the video should be excluded under Evidence Code section 352 as "more prejudicial than probative. It certainly paints my client in a very negative light. I also argue that it's cumulative. There has already been quite a bit of gang evidence; there is more to come regarding tattoos."

The trial court overruled defendant's objection, stating, "This is not only as [*48]  to the gang allegation, ... but the gang evidence is very important also as to at least in the People's case as to the motives based on the People's theory that the wording is 'Fuck Jokes.' [¶] Also, based on what was stated to me earlier, I think it's on the record that it goes not only to the gang motive but the identification of the defendant; that he is not only an active gang member, but also that he used the same words. [¶] ... So the court finds that under 352 that it is not -- its probative value does not [sic] substantially outweigh its prejudicial effect -- or the prejudicial effect is not [sic] substantially outweighed by the probative value...."

Defendant argues the trial court erred by admitting the video because it "was far more prejudicial than probative because it was unknown when it was made, [defendant] did not use unique language, and the evidence of [defendant's] gang membership was cumulative."

We have viewed the DVD of the video. It is 3 minutes 37 seconds long and principally focuses upon two other boys, not defendant. The three boys and one girl in the video wander around an alley and into a carport as they point out graffiti and state what the graffiti signify. [*49]  In most of the scenes that depict defendant, he makes gang hand signals and states the name of his gang and his moniker, Caccy Blue Loco. In another scene, defendant points out his graffiti and says, "Eastside Lynwood" and "Fuck Jokes." Near the end of the video, defendant says, "Neighborhood Crip, cuz" and the girl says "Fuck Jokes, cuz."

The video was relevant to demonstrate defendant's membership in the Lynwood Neighborhood Crips gang, which was in turn relevant to show defendant's motive for shooting Moton and to assist in proving the gang enhancement allegation. It was also relevant to corroborate Moton's and Sneed's identification of defendant. They testified that defendant said "Fuck Jokes" just before opening fire, and the video demonstrated that "Fuck Jokes" was a phrase defendant used. In addition, Moton and Sneed first identified defendant to Reynaga by pointing him out in this YouTube video.

Although Reynaga testified that Lynwood Neighborhood Crips gang members called Palm and Oaks Gangster Crips gang members "Jokes," and Moton testified that "Fuck Jokes" was a statement of disrespect to members of the Palm and Oaks Gangster gang members Crips, the video was unique in demonstrating [*50]  that defendant used this phrase. Thus, the video was not cumulative. That other members of defendant's gang, such as the girl in the video, used the same phrase provided defendant with an argument for the jury, but did not negate or diminish the probative value of the video.