Filed 2/17/16 P. v Hampton CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068679
Plaintiff and Respondent,
v. (Super. Ct. No. FSB1202768)
RONALD LANE HAMPTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County, David
J. Mazurek, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Amanda E.
Casillas and Elizabeth Carino, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ronald Hampton of the willful, deliberate and premeditated
attempted murder of Tariq Davis and shooting a firearm from a motor vehicle. The jury
also found true that in the commission of the crimes, Hampton personally used and discharged a firearm, which caused great bodily injury, and that he committed the crimes
for the benefit of, in association with, or at the direction of a criminal street gang. He
appeals, contending: (1) the trial court erred by admitting a videotaped recording of a
witness statement, jail classification cards, which reported Hampton admitted gang
membership, and Hampton's three prior convictions as predicate offenses to prove the
gang enhancement; (2) the prosecutor failed to disclose that two predicate offenses
committed by others were fully or partially reversed; (3) the trial court erroneously
permitted a gang expert to invade the province of the jury on witness credibility and
Hampton's guilt; and (4) cumulative error warrants reversal. We find no prejudicial error
and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Hampton was a member of the Five Times Hometown Crips gang. Davis was a
member of the 107 Hoover gang. Hampton and Davis had a dispute regarding control of
drugs and prostitutes.
In June 2012, Davis, Walter Datcher, Shannon James, and Vallon Wallace were
walking down a street in San Bernardino together when a red car approached them. The
driver of the red car shot Davis and drove away. The car belonged to Jamie Leal, but she
had loaned it to Hampton in exchange for drugs. Datcher and James identified Hampton
as the shooter.
At trial, Datcher denied Hampton was the shooter. However, prior to trial,
Datcher had made multiple statements identifying Hampton. Two weeks after the
shooting, Datcher had told officers that Hampton shot Davis due to a dispute over drugs
2 and prostitutes. Additionally, in August 2012, Datcher had told police officers in a video
recorded statement that Hampton shot Davis. Datcher explained the pretrial statements
by testifying that Davis had instructed him to accuse Hampton of the shooting. In a
jailhouse call, Datcher asked the caller, "Remember when [Hampton] shot [Davis]?"
The prosecution introduced evidence that Hampton was engaged in an effort to
intimidate witnesses. For example, in a jailhouse call, Datcher discussed how Hampton
was attempting to find witnesses who had identified Hampton as the shooter and
Hampton's fellow gang members were also looking for individuals who spoke out about
the case. Similarly, in a jailhouse call, Hampton's wife encouraged him to go to trial
because the case was crumbling and the prosecution "might not have a witness so uh,
booyao!" Hampton's wife continued by stating, "[s]o, I thin[k] if you take it to trial, and
force people to talk, we gonna see if people gonna talk or people gonna disappear."
Davis did not testify at trial because he was shot and killed before trial began.
Defense
The defense presented one witness, Lydia Alvarez. Alvarez testified that she saw
a Black male driver in a red car fire a gun from the car. She described the driver as a
"chubby Black guy." She denied Hampton was the shooter and explained that the shooter
was heavier and had lighter skin than Hampton.
On the day of the shooting, Alvarez told an officer that she could identify the
driver of the red car. However, when Alvarez spoke to the prosecutor, Alvarez denied
knowing anything about the shooting. Alvarez testified that she did not want to be
involved in the case.
3 DISCUSSION
I. Alleged Evidentiary Error
A. Videotaped Witness Statement
1. Additional Background
Shortly before the close of evidence at trial, the prosecutor informed the court that
he had received information that Datcher had made a statement to the police implicating
Hampton of shooting Davis. Datcher made the statement during a video recorded police
interview pertaining to an unrelated case. The prosecutor gave defense counsel a copy of
the tape the next morning.
Defense counsel objected to introduction of the video as late discovery. Defense
counsel explained that he had not had an opportunity to review the video and related
transcript.
The trial court noted that the video concerned an unrelated case and had just come
to the prosecutor's attention. The court also noted that even if the prosecution had the
evidence earlier, it was not required to disclose it because the evidence was offered
purely for impeachment purposes. The prosecutor informed the court that he only
intended to introduce 13 minutes of the two and a half-hour video. Thereafter, the court
provided defense counsel with an opportunity to review the relevant 13 minutes of the
video. Ultimately, the court permitted the prosecution to introduce the 13-minute
segment of the video, concluding the evidence was relevant and impeached Datcher's
testimony.
4 The prosecution recalled Datcher and impeached him with the video. In the video,
Datcher stated Hampton approached Davis driving a red car and shot him. Datcher
testified that he had spoken with Davis before the police interview. Davis told Datcher
what to say in relation to the case and that the best way to get rid of Hampton was to get
him locked up.
2. Analysis
Hampton contends the trial court abused its discretion by admitting the video
recording of Datcher's statements to the police. Specifically, Hampton argues the trial
court erred in concluding the prosecutor did not have a duty to disclose the videotape on
the basis that it was for impeachment purposes. We reject this argument.
Penal Code section 1054.1, subdivision (f), requires the prosecution to disclose
"[r]elevant written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecutor intends to call at the trial." (Undesignated statutory
references are to the Penal Code.) The disclosures required by section 1054.1 "shall be
made at least 30 days prior to the trial, unless good cause is shown why a disclosure
should be denied, restricted, or deferred. If the material and information becomes known
to, or comes into the possession of, a party within 30 days of trial, disclosure shall be
made immediately . . . ." (§ 1054.7, italics added.) The prosecution does not have a duty
to disclose impeachment information. (People v. Tillis (1998) 18 Cal.4th 284, 290-291.)
Before imposing any exclusion of testimony or evidence as a means of preventing
prejudice to a defendant, a trial court must carefully weigh the cost to the truth-finding
process of excluding otherwise relevant and probative evidence. (People v. Gonzales
5 (1994) 22 Cal.App.4th 1744, 1757-1758.) Consequently, exclusion is warranted as a
remedy only when the prejudice caused by a failure to disclose is substantial and
irremediable. (Id. at p. 1757.) We review the trial court's decision regarding enforcement
of the discovery required by section 1054.1 for abuse of discretion. (People v. Jackson
(1993) 15 Cal.App.4th 1197, 1203; People v. Wimberly (1992) 5 Cal.App.4th 773, 792.)
Here, even if Datcher's video recorded statement was used for more than
impeachment purposes and thus subject to disclosure under section 1054.1, there was no
discovery violation. Although the general rule requires the prosecutor to make
disclosures 30 days prior to trial, this deadline does not apply where the information
becomes known to the prosecutor at a later time. (§ 1054.7.) In such instances,
disclosure shall be made immediately. (Ibid.) The prosecutor in this case complied with
this requirement. During trial, the prosecutor informed defense counsel and the court that
it had just come to the prosecution's attention via a text message that Datcher made a
statement incriminating Hampton. As soon as the prosecutor learned of the evidence, he
called defense counsel to provide the defense with a copy of the video, which was done
the next morning. At trial, Datcher did not dispute that the prosecution had just learned
of the evidence. Accordingly, the prosecutor did not violate the discovery rules and the
court acted within its discretion in admitting the video evidence.
Even assuming Hampton's argument has merit, the alleged error was harmless
under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v.
Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) The jury in this case heard other
evidence that Datcher implicated Hampton as the shooter. Notably, the jury heard
6 evidence that two weeks after the shooting, Datcher had told officers that Hampton shot
Davis due to a dispute over drugs and prostitutes. Moreover, the jury heard a jailhouse
call in which Datcher asked the caller, "Remember when [Hampton] shot [Davis]?"
Based on this evidence, we conclude the alleged error in admitting Datcher's videotaped
statement was harmless.
B. Jail Classification Cards
At trial, the prosecution introduced evidence of four jail classification cards which
reported that Hampton admitted to being a member of the Five Times Hometown Crips
gang. Hampton argues the trial court erred in admitting the jail classification cards
because he did not receive warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436,
478-479 (Miranda).
In People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), our high court considered
"whether routine questions about gang affiliation, posed to defendant while processing
him into jail on murder charges, come within Miranda's well-recognized booking
exception." (Id. at p. 527.) The court held that "the questions exceeded the scope of the
exception and that officers should have known these questions were reasonably likely to
elicit an incriminating response because of California's criminal gang statutes and
defendant's pending charges. While officers were permitted to ask these questions for
institutional security purposes, defendant's un-Mirandized responses were inadmissible
against him during the case-in-chief." (Ibid.)
Under the rule set forth in Elizalde, Hampton's jail classification cards were
inadmissible against him during the case-in-chief as there was no evidence that he was
7 given Miranda advisements. However, as in Elizalde, the error was harmless beyond a
reasonable doubt because Hampton's gang membership was convincingly established by
other evidence. (Elizalde, supra, 6 Cal.4th at p. 542.) For example, James testified that
she previously told officers that Hampton was a member of "the Five." Further, Officer
Ernie Luna testified that he contacted Hampton twice in matters unrelated to this case.
On those occasions, Hampton admitted to being a member of the Five Times Hometown
Crips gang, was wearing gang colors, identified himself with his gang moniker, and was
with another gang member. Officer Luna also observed tattoos on Hampton revealing
Hampton's gang affiliation. Similarly, Officer Paul Spriggs testified that based on his
contacts with Hampton and reports of other officers' contacts with Hampton, Hampton
admitted gang membership, had gang tattoos, and affiliated with other Five Times
Hometown Crips gang members. Lastly, during closing argument, defense counsel
conceded that Hampton was a member of the Five Times Hometown Crips. Based on
counsel's argument and the evidence in this case, admission of the jail classification cards
was harmless beyond a reasonable doubt.
II. Predicate Offenses
A. Additional Background
The prosecution sought to admit predicate offenses to prove the gang enhancement
allegation. The predicate offenses included Hampton's prior convictions. Defense
counsel objected, arguing there were other predicate offenses available which were not
committed by Hampton and admission of Hampton's prior offenses was prejudicial. The
court ruled Hampton's prior offenses were relevant to prove he was personally involved
8 in gang activities and whether his current offense was committed for the benefit of, at the
direction of, or in association with other gang members for the benefit of that gang. The
court noted that admission of Hampton's prior offenses was not unduly prejudicial
because the prior offenses were not more serious or inflammatory than the crimes
charged in his case.
The prosecution ultimately presented evidence of six predicate offenses to prove
the gang allegation. Hampton committed three of those offenses and the remaining three
were committed by others. The predicate offenses included:
1. Hampton's 2001 conviction for possession for sale or transportation of cocaine base;
2. Hampton's 2005 conviction for possession for sale of a controlled substance;
3. Hampton's 2007 conviction for taking a motor vehicle without consent;
4. Isaac Pendaloza's 2009 conviction for being a felon in possession of a firearm with a finding that the offense was committed for the benefit of a criminal street gang;
5. Desmone Downs's 2010 conviction for murder with a finding that the offense was committed for the benefit of the Five Times Hometown Crips; and
6. Danny Louie's 2012 conviction for carjacking and dissuading a witness with a finding that the crimes were committed for the benefit of a criminal street gang.
B. Hampton's Predicate Offenses
Hampton contends the trial court erred in admitting evidence of his three prior
convictions as predicate offenses to support the gang allegation because the evidence was
9 unduly prejudicial under Evidence Code section 352. Hampton also argues the trial court
erred in allowing the "wholesale admission of [his] prior convictions as long as they were
enumerated gang crimes." We reject these arguments.
To support a true finding on a criminal street gang enhancement allegation, the
prosecution must establish a "pattern of criminal gang activity," which requires a
showing of two or more predicate offenses. (§ 186.22, subd. (e).) There is no settled
number of predicate offenses which may be admitted to prove a gang enhancement.
(People v. Rivas (2013) 214 Cal.App.4th 1410, 1435-1436 (Rivas) [upholding admission
of six predicate offenses]; People v. Hill (2011) 191 Cal.App.4th 1104, 1137-1139
[admission of eight predicate offenses committed by members of defendant's gang was
not unduly cumulative].)
With respect to the introduction of evidence of a predicate offense committed by
the defendant, "[a] predicate offense [may] be established by proof of an offense the
defendant committed on a separate occasion." (People v. Tran (2011) 51 Cal.4th 1040,
1046 (Tran).) Further, with respect to the number of predicate offenses introduced,
"although the court need not limit the prosecution's evidence to one or two separate
offenses lest the jury find a failure of proof as to at least one of them, the probative value
of the evidence inevitably decreases with each additional offense, while its prejudicial
effect increases, tilting the balance towards exclusion." (Id. at p. 1049.) "The court in its
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
10 substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
(Evid. Code, § 352.)
We review the trial court's rulings on the admission of predicate offenses for an
abuse of discretion. (See, e.g., Rivas, supra, 214 Cal.App.4th at p. 1436 [applying abuse
of discretion standard of review to defendant's contention that trial court erred in
permitting prosecution to introduce evidence of excessive number of predicate gang
offenses]; Tran, supra, 51 Cal.4th at p. 1050 [applying abuse of discretion standard of
review to defendant's claim that trial court erred in admitting evidence of his prior
conviction for purposes of proving gang predicate offense].)
Hampton's argument regarding the cumulative nature of his prior convictions and
their prejudicial effect was largely rejected in Tran, supra, 51 Cal.4th at p. 1046. In that
case, the prosecution established a gang's predicate offenses, as required by section
186.22, subdivision (f), by presenting evidence of crimes the defendant himself
committed on behalf of the gang. On appeal, the defendant argued that in light of
evidence of crimes committed by other gang members, evidence of his past crimes was
cumulative and therefore unduly prejudicial. In rejecting this contention, the court stated:
"[D]efendant cites no authority for the argument that the prosecution must forgo the use
of relevant, persuasive evidence to prove an element of a crime because the element
might also be established through other evidence. The prejudicial effect of evidence
defendant committed a separate offense may, of course, outweigh its probative value if it
is merely cumulative regarding an issue not reasonably subject to dispute. [Citations.]
But the prosecution cannot be compelled to ' "present its case in the sanitized fashion
11 suggested by the defense." ' [Citation.] When the evidence has probative value, and the
potential for prejudice resulting from its admission is within tolerable limits, it is not
unduly prejudicial and its admission is not an abuse of discretion." (Tran, at pp. 1048-
1049.)
Here, Hampton concedes that there is no settled limit on the number of predicate
offenses that may be admitted to prove a gang enhancement and that the offenses do not
have to be gang related. The trial court acts within its discretion in admitting the
predicate offenses when the evidence has probative value and is not unduly prejudicial.
(Tran, supra, 51 Cal.4th at p. 1049.) The predicate offenses involving Hampton were for
drug-related offenses and taking a motor vehicle without consent. This evidence had
clear probative value with respect to the gang enhancement. Further, the potential for
prejudice was within tolerable limits. (Ibid.) An important factor in determining whether
evidence of a defendant's other offenses is unduly prejudicial is whether it is more
inflammatory than the charged crimes. (Id. at p. 1047.) As the trial court noted,
Hampton's prior offenses were less serious and no more inflammatory than the crimes
charged in this case.
We also reject Hampton's argument that the trial court misunderstood its discretion
and the principles set forth in Tran, supra, 51 Cal.4th at p. 1046. Contrary to Hampton's
argument, the trial court did not allow the "wholesale admission" of his prior convictions
and treat the decision in Tran as removing his ability to object to the predicate offenses.
Rather, the trial court conducted a proper balancing test and found admission of
Hampton's prior offenses was not unduly prejudicial.
12 Because the evidence was probative and not unduly prejudicial, the trial court did
not abuse its discretion in admitting it. (Tran, supra, 51 Cal.4th at p. 1050.)
Accordingly, we reject Hampton's related claim that in admitting the evidence the trial
court deprived him of due process and a fair trial.
C. Status of Predicate Offenses
Hampton argues the prosecutor had a duty under Brady v. Maryland (1963) 373
U.S. 83 (Brady), to disclose that one of the predicate offenses offered to prove the gang
enhancement was reversed on appeal and another was pending appeal. Specifically,
Hampton contends Downs's murder conviction was reversed one month before trial and
an appeal was pending in Louie's case. Hampton alleges that without the Downs
predicate offense, the remaining predicate offenses fail to establish a pattern of criminal
activity within the meaning of section 186.22, subdivision (e). Alternatively, Hampton
contends his trial counsel was ineffective for failing to discover the status of the Downs
and Louie predicate offenses. Hampton claims he was prejudiced because the most
serious predicate offense was reversed on appeal. Lastly, Hampton asserts reversal is
required under the cumulative error doctrine because the prosecutor also improperly used
his prior convictions as predicate offenses.
1. Alleged Brady Violation
The constitutional right to due process of law requires that the prosecution disclose
to the defense evidence favorable to the defendant and material to guilt or punishment.
(Brady, supra, 373 U.S. at pp. 86-87.) Evidence is favorable to the defendant if it either
helps the defendant (e.g., is exculpatory) or hurts the prosecution (e.g., by impeaching a
13 prosecution witness). (U.S. v. Bagley (1985) 473 U.S. 667, 676; City of Los Angeles v.
Superior Court (2002) 29 Cal.4th 1, 8.) Evidence is "material" under Brady "only if there
is a reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different." (Bagley, at p. 682.) To prove the
prosecution has violated its Brady duty, the defendant "must show both the favorableness
and the materiality of any evidence not disclosed by the prosecution . . . ." (In re
Sassounian (1995) 9 Cal.4th 535, 545.)
Even though "the prosecution may not withhold favorable and material evidence
from the defense, neither does it have the duty to conduct the defendant's investigation
for him. [Citation.] If the material evidence is in a defendant's possession or is available
to a defendant through the exercise of due diligence, then . . . the defendant has all that is
necessary to ensure a fair trial . . . ." (People v. Salazar (2005) 35 Cal.4th 1031, 1048-
1049 (Salazar).) We apply a de novo standard of review to the issue of whether the
defendant established the elements of a Brady claim. (Id. at p. 1042.)
Here, the prosecutor disclosed the predicate offenses that he intended to use to
support the gang enhancement. Those predicate offenses included the Downs and Louie
offenses. As Hampton concedes, information regarding the status of Downs's and Louie's
convictions was readily available to him through a simple Internet search. Where, as
here, the prosecution disclosed the predicate offenses and the information regarding their
status was available to the defendant through exercise of due diligence, there is no Brady
violation as he had all he needed to ensure a fair trial. (Salazar, supra, 35 Cal.4th at
pp. 1048-1049.)
14 Regardless, information regarding the appellate status of the Downs and Louie
convictions was not material because those offenses were admissible as predicate
offenses to prove the gang allegation irrespective of whether they were reversed or
partially reversed on appeal. Subdivision (e) of section 186.22 defines " 'pattern of
criminal gang activity' " as "the commission of, attempted commission of, . . . or
conviction of two or more" enumerated offenses. (Italics added.) "Because section
186.22, subdivision (e) contains both the options of 'commission' or 'conviction,' the
statute expressly does not require that the offense necessarily result in a conviction."
(People v. Garcia (2014) 224 Cal.App.4th 519, 524; In re I.M. (2005) 125 Cal.App.4th
1195, 1207-1208 [evidence that a gang member was prosecuted for an offense, without a
showing that he was convicted, was sufficient evidence of "commission" of predicate
offense for pattern of criminal gang activity].)
2. Sufficiency of Predicate Offenses
For the same reason, we also reject Hampton's argument that without the Downs
predicate offense, the remaining predicate offenses fail to establish a pattern of criminal
activity within the meaning of section 186.22, subdivision (e). Hampton bases his
contention on the requirement that the most recent predicate offense must have occurred
within three years of one of the earlier crimes. (§ 186.22, subd. (e).) Hampton urges that
this requirement fails if we excise Downs's conviction from the record because without
Downs's offense, Louie's 2012 offense, which was the most recent predicate offense, did
not occur within three years of Pendaloza's crime. As we have explained, a conviction is
not required for a predicate offense to qualify as an offense supporting criminal street
15 gang enhancement. (Ibid.) All that is required is evidence that the offense was
committed. (People v. Garcia, supra, 224 Cal.App.4th at p. 524.)
In this case, the evidence adequately established the Downs predicate offense.
Officer Luna testified that Downs, a documented member of the Five Times Hometown
Crips gang, went to a rival gang party, walked up behind an individual and shot him point
blank in the back of the head. Additionally, the court admitted documentary evidence
regarding the information against Downs and other court records from his case. (People
v. Gardeley (1996) 14 Cal.4th 605, 624-626 [court found sufficient evidence of a
predicate offense in an information and other court records showing that a gang member
had been convicted of shooting at an inhabited building].) Therefore, regardless of the
status of Downs's conviction, it could be used as a predicate offense to establish the gang
allegation and we reject Hampton's argument that it must be excised from the record. We
note, however, that based on the record before us, had Downs's murder conviction been
reversed for insufficiency of the evidence, it would not have been a proper predicate
offense as there would be no competent evidence regarding whether the offense had in
fact been committed by a gang member.
3. Alleged Ineffective Assistance
Hampton alternatively contends his trial counsel was ineffective for failing to
discover the status of the Downs and Louie predicate offenses. We reject this argument.
To establish ineffective assistance of counsel, Hampton must show, by a
preponderance of the evidence, that his counsel's representation fell below the standard of
a competent advocate and a reasonable probability exists that, but for counsel's errors, the
16 result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A
"reasonable probability" is a probability sufficient to undermine confidence in the
outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) In determining whether
counsel's performance was deficient, we exercise deferential scrutiny and "assess the
reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at
the time that counsel acted or failed to act." (People v. Ledesma, at p. 216.) We presume
that counsel's conduct fell within the wide range of reasonable professional assistance
and tactical errors are generally not deemed reversible. (People v. Maury (2003) 30
Cal.4th 342, 389.) Our review is limited to the record on appeal and we must reject a
claim of ineffective assistance if the record sheds no light on why counsel acted or failed
to act in the manner challenged unless (1) counsel was asked for and failed to provide a
satisfactory explanation or (2) there simply could be no satisfactory explanation. (People
v. Burgener (2003) 29 Cal.4th 833, 880.)
Here, the record is unclear as to whether defense counsel investigated the status of
Downs's and Louie's convictions. The record reveals, however, that Hampton's counsel
chose to focus the defense on the identity of the shooter rather than the gang allegation.
In fact, defense counsel admitted that Hampton was a member of the gang and that fellow
gang members engaged in criminal activity. Thus, counsel's failure to introduce evidence
that Downs's conviction was reversed and Louie's partially reversed may have been a part
of the trial strategy to focus on the identity of the shooter. A reviewing court does not
second guess trial counsel's strategy and tactical choices. (People v. Mitcham (1992) 1
Cal.4th 1027, 1059.)
17 Regardless, even if defense counsel had investigated Downs's and Louie's
convictions, Hampton has not shown prejudice because, as we explained, there is no
requirement that the predicate offenses must be convictions. (§ 186.22, subd. (e); People
v. Garcia, supra, 224 Cal.App.4th at p. 524.) Thus, whether or not defense counsel knew
of the status of the convictions, the evidence was admissible to prove a pattern of
criminal gang activity.
4. Alleged Cumulative Error
Hampton asserts reversal is required under the cumulative error doctrine because
the prosecutor also improperly used his prior convictions as predicate offenses. Having
rejected Hampton's argument regarding the prosecutor's use of his crimes as predicate
offenses, we also reject Hampton's cumulative error argument.
III. Gang Expert Testimony
Officer Luna testified regarding his investigation of the case and as the
prosecution's gang expert. He stated the Five Times Hometown Crips gang had
approximately 80 documented members. The gang's primary activities included narcotics
sales, vehicle thefts, weapons charges, and violent crimes, including assaults, robberies,
murders, and attempted murders.
When discussing the reluctance of witnesses to testify, the prosecutor and Officer
Luna engaged in the following discussion:
"[Prosecutor]: And, Officer Luna, as you evaluated and got to give your opinion as to witnesses in court and the way they testified as well as how they interacted with you when you were there when
18 they were served with subpoenas, how does—based on your training and experience, how does that affect your opinion as to whether or not this crime is benefiting Five Times based on what's going on between individuals in custody and witnesses out of custody?
"[Officer Luna]: It shows that the Five Times is a violent gang. A member from the Five Time has shot at a person point blank in the middle of the street—
"[Defense Counsel]: Object to that. Assumes facts not in evidence and offers an opinion —
"THE COURT: Overruled.
"[Defense Counsel]:—opinion as—
"[Officer Luna]: — in broad daylight. Now witnesses are coming forward. [¶] I don't know if you heard testimony with the witnesses but none of them wanted to be here. . . . [¶] All the statements that we took were either right on that they identified [Hampton], but here in court they said that they never said that, that we force fed them the information." (Italics added.)
Later, the prosecutor and Officer Luna engaged in the following colloquy:
"[Prosecutor]: Are there any tangible benefits to the reputation of Five Time Hometown Crips that you can point to by the defendant attempting to murder someone in open daylight?
"[Officer Luna]: A gang member committing murder for the benefit of the gang is like the ultimate [thing] a gang member can do to achieve status, but not only for himself but for the gang. It shows as gang members, as you hear words 'the streets,' 'streets talk,' everyone knows that this incident occurred. They know that [Hampton] did it. People made reference that they know he's from 'the Five.' So people are going to know if you mess with a Five Time's gang member, they are going to come back and shoot you. [¶] They assaulted him. They hit him over the head with a baseball bat or stick; he came back and shot him point black [sic]. It shows you don't mess with Five Time's gang members. It establishes fear in the community. It establishes fear amongst other gang members and it
19 boasts that particular gang and that particular gang member's status within the gang." (Italics added.)
Officer Luna also testified over defense counsel's objections that the crimes of
shooting from a motor vehicle and attempting to commit murder benefit the Five Times
Hometown Crips gang. Based on Officer Luna's investigations, he opined that the Five
Times Hometown Crips gang engaged in a pattern of criminal activity.
B. Analysis
Hampton argues Officer Luna provided improper expert testimony. Specifically,
Hampton contends Officer Luna erroneously expressed an opinion that Hampton
committed the charged and some uncharged crimes for the benefit of the Five Times
Hometown Crips gang. He also contends the prosecutor's questions were not properly
phrased as hypotheticals. Hampton further argues Officer Luna improperly opined that
the Five Times Hometown Crips gang engaged in a pattern of criminal activity. Lastly,
Hampton alleges Officer Luna provided improper opinion testimony on the demeanor
and credibility of witnesses Leal, James, and Datcher.
"Generally, an expert may render opinion testimony on the basis of facts given 'in
a hypothetical question that asks the expert to assume their truth.' " (People v. Gardeley,
supra, 14 Cal.4th at p. 618.) "Expert testimony repeatedly has been offered to show the
'motivation for a particular crime, generally retaliation or intimidation,' and 'whether and
how a crime was committed to benefit or promote a gang.' " (People v. Gonzalez (2005)
126 Cal.App.4th 1539, 1550.)
20 In People v. Vang (2011) 52 Cal.4th 1038 (Vang), our high court addressed the
"propriety of permitting the gang expert to respond to the hypothetical questions the
prosecution asked regarding whether defendants' assault on [the victim] was gang
related." (Id. at p. 1044.) The court approved the use of hypothetical questions in such
cases, explaining, "As applied here, this rule means that the prosecutor's hypothetical
questions had to be based on what the evidence showed these defendants did, not what
someone else might have done. The questions were directed to helping the jury
determine whether these defendants, not someone else, committed a crime for a gang
purpose. Disguising this fact would only have confused the jury." (Id. at p. 1046.)
However, "in some circumstances, expert testimony regarding the specific
defendants might be proper." (Vang, supra, 52 Cal.4th at p. 1048, & fn. 4.) The Vang
court explained that expert testimony might be prohibited regarding specific defendants
not because expert testimony might embrace the ultimate issue to be decided by the trier
of fact, but because it does not assist the trier of fact, who is as competent as the expert
witness to weigh the evidence and draw a conclusion on the issue of guilt. (Id. at
p. 1048.) "Despite the circumstance that it is the jury's duty to determine whether the
prosecution has carried its burden of proof beyond a reasonable doubt, opinion testimony
may encompass 'ultimate issues' within a case." (People v. Prince (2007) 40 Cal.4th
1179, 1227.)
Erroneous admission of expert testimony is governed by the Watson standard and
requires reversal only if it is reasonably probable the verdict would have been more
21 favorable to the defendant in the absence of the error. (People v. Watson, supra, 46
Cal.2d at p. 836; People v. Venegas (1998) 18 Cal.4th 47, 93.)
Here, on the issue of whether the gang expert opined about Hampton's guilt
concerning the charged crimes, we conclude the prosecutor should have framed his
questions in the form of hypotheticals and, in response to the prosecutor's poorly framed
questions, the expert improperly opined directly about Hampton himself. For example,
the prosecutor asked, "[a]re there any tangible benefits to the reputation of Five Time
Hometown Crips that you can point to by the defendant attempting to murder someone in
open daylight?" In explaining his affirmative response, the gang expert stated that the
crime establishes fear in the community and other gang members because "they know
that [Hampton] did it." This portion of the gang expert's testimony specifically
referencing Hampton was unhelpful to the jury because the jury was equally equipped to
reach that conclusion.
Similarly, Officer Luna's testimony that "[a] member from the Five Time has shot
at a person point blank in the middle of the street" was a matter that the jury was
equipped to decide. On this point, however, the trial court properly overruled defense
counsel's objection because the expert's statement was part of his testimony explaining
inconsistencies in witness statements before and during trial. This information was
helpful to the jury. Further, Officer Luna's testimony was appropriate to the extent it was
based on his investigation of the case and interactions with witnesses during the
investigation. Lastly, the testimony was merely cumulative of other testimony regarding
why witnesses were reluctant to testify in this case.
22 Although a portion of Officer Luna's testimony invaded the province of the jury,
we conclude that any error was harmless. The prosecutor asked the expert specifically
about whether the gang would benefit from Hampton attempting to murder someone in
broad daylight. The expert's response explained how the crime of attempted murder
benefits the gang. Although the expert referenced Hampton, the expert did not testify
about Hampton's specific knowledge or intent. Instead, the expert's reference to
Hampton was an effort to explain how the crime of attempted murder instills fear in
others. Therefore, the expert did not direct the jury to find Hampton guilty.
Further, the trial court instructed the jury regarding how to interpret expert
testimony: "Witnesses were allowed to testify as experts and to give opinions. You must
consider the opinions, but you are not required to accept them as true or correct. The
meaning and importance of any opinion are for you to decide. In evaluating the
believability of an expert witness, follow the instructions about the believability of
witnesses generally. In addition, consider the expert's knowledge, skill, experience,
training, and education, the reasons the expert gave for any opinion, and the facts or
information on which the expert relied in reaching that opinion. You must decide
whether information on which the expert relied was true and accurate. You may
disregard any opinion that you find unbelievable, unreasonable, or unsupported by the
evidence." We presume the jury followed this instruction. (See People v. Sanchez
(2001) 26 Cal.4th 834, 852.) Lastly, in light of the overwhelming evidence establishing
Hampton's guilt, it is not reasonably probable he would have obtained a more favorable
result absent the claimed error.
23 On Hampton's remaining challenges to Officer Luna's testimony about whether the
Five Times Hometown Crips engaged in a pattern of criminal activity, Hampton's
uncharged crimes, and the fear and reluctance of witnesses to testify, we conclude
Hampton forfeited his arguments by failing to object below. The failure to object to a
gang expert's testimony at trial forfeits any contention regarding that testimony on appeal.
(People v. Gutierrez (2009) 45 Cal.4th 789, 818-819.) Contrary to Hampton's argument,
his trial counsel's failure to object did not constitute ineffective assistance.
Hampton has not shown that his trial attorney failed to act in a manner to be
expected of reasonably competent counsel and a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
(Strickland v. Washington (1984) 466 U.S. 668, 688-694.) Officer Luna's testimony
regarding Hampton's uncharged crimes of selling drugs and being involved in the
prostitution trade was cumulative of other evidence at trial. For example, Datcher had
told officers that Hampton shot Davis due to a dispute over drugs and prostitutes.
Additionally, Leal testified that she had loaned her car to Hampton in exchange for
cocaine. Similarly, there was other evidence at trial that witnesses were fearful and
reluctant to testify. Thus, Officer Luna's testimony about the demeanor of witnesses and
Hampton's uncharged crimes was not prejudicial. (See People v. Rodrigues (1994) 8
Cal.4th 1060, 1119 [it was not reasonably probable that an alleged error in admitting
evidence, which was cumulative of other testimony, affected the verdict].)
Likewise, Hampton has not shown his counsel's failure to object to Officer Luna's
testimony about whether the Five Times Hometown Crips engaged in a pattern of
24 criminal activity was deficient. Instead, the record reveals that counsel's decision not to
object may have been a tactical decision. Defense counsel admitted that Hampton was a
member of the gang and that fellow gang members engaged in criminal activity. Rather
than challenge the gang testimony, defense counsel chose to concentrate on whether
Hampton was the shooter. We exercise deferential scrutiny when reviewing claims of
ineffective assistance of counsel and will not "second-guess reasonable, if difficult,
tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th
1188, 1212.) Accordingly, we reject Hampton's claim of ineffective assistance.
IV. Cumulative Error
A series of errors, though harmless when considered independently, may in some
circumstance rise to the level of prejudicial reversible error. (People v. Cunningham
(2001) 25 Cal.4th 926, 1009.) "The 'litmus test' for cumulative error 'is whether
defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97
Cal.App.4th 785, 795.)
Here, Hampton asserts the cumulative effect of the alleged errors raised on appeal
resulted in a denial of his right to a fair trial. As discussed above, a portion of the gang
expert's testimony invaded the province of the jury. The error was harmless individually.
For the same reasons, we conclude there is no reasonable possibility that the cumulative
effect of that error along with Hampton's remaining alleged errors affected the jury's
verdict. Consequently, the accumulation of the claimed errors did not deprive Hampton
of a fair trial.
25 DISPOSITION
The judgment is affirmed.
McINTYRE, Acting P. J.
WE CONCUR:
AARON, J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 26