People v. Gaines, 011019 CAAPP1, A150170

Docket Nº:A150170
Opinion Judge:NEEDHAM, J.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. LEONARD JAMES GAINES et al., Defendants and Appellants.
Judge Panel:WE CONCUR. JONES, P.J., SIMONS, J.
Case Date:January 10, 2019
Court:California Court of Appeals
 
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THE PEOPLE, Plaintiff and Respondent,

v.

LEONARD JAMES GAINES et al., Defendants and Appellants.

A150170

California Court of Appeals, First District, Fifth Division

January 10, 2019

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. SC080433

NEEDHAM, J.

Appellants Leonard James Gaines, Raymond Louis Bradford and Rodney Levence Mitchell were sentenced to prison after a jury convicted them of gang-related attempted robberies with the use of a firearm. They contend: (1) the court violated their right to confront the witnesses against them when it admitted case-specific hearsay evidence as part of the expert testimony on the gang allegations, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and Crawford v. Washington (2004) 541 U.S. 36 (Crawford). They further contend the case must be remanded for resentencing on the firearm allegations because they are entitled to the ameliorative effect of Senate Bill No. 620, which was enacted after their convictions in this case and which made such enhancements discretionary. Appellant Bradford argues that resentencing should extend to a five-year enhancement for a prior serious felony conviction because he is entitled to the retroactive effect of Senate Bill No. 1393, which gives the court discretion to strike the enhancement effective January 1, 2019. We find the Sanchez error does not require reversal, but remand the case for resentencing.

I. BACKGROUND1

A. The Crime

On January 16, 2013, shortly before 12:30 p.m., appellants Gaines and Bradford and Robert Wheeler entered Plaza Jewelers in Menlo Park wearing masks, having been driven there by appellant Mitchell in a white car owned by his mother (who was Bradford's girlfriend). Rosalba Velazquez, the owner of the store, was standing behind the front counter talking to customers and her husband, Alfonso Angulo, who worked at the store. Roberto Fierro was sitting at a desk he rented by the front door, where he conducted an insurance business.

Gaines pointed a gun at Fierro's head and said, “This is a holdup”. Bradford and Wheeler went to the glass cases at either side of the store carrying hammers and pillowcases. Angulo pulled out a pistol from under the counter, chambered a round, and said something like, “All right then, assholes.” One of the robbers said “Oh, shit, ” and they all fled the store.

Angulo and Fierro chased the robbers in Angulo's pickup while Vasquez called 911. Officers arrived within minutes and also chased the robbers. The white car driven by Mitchell crashed into a utility pole. Gaines, Bradford, Mitchell and Wheeler were eventually apprehended and physical evidence and cell phone records linked them to the crime.

B. The Charges

The San Mateo District Attorney filed an amended information accusing Gaines, Bradford, Mitchell and Wheeler of three counts of attempted robbery (Pen. Code, § 664, 212.5, subd. (c)), 2 with criminal street gang and firearm enhancements (§ 186.22, subd. (b), 12022.53, subs. (b), (e)). Gaines was also alleged to have possessed a firearm having suffered a prior felony conviction, and Bradford was alleged to have prior convictions and prison priors. (§ 29800, 667, subd. (a), 667.5, subd. (b), 1170.12.) Wheeler, who had significant health problems relating to a heart attack he suffered after his arrest, pled guilty in exchange for time served.

C. Trial

A bifurcated jury trial of appellants was held. After the jury returned verdicts on the substantive charges, a separate trial was held on the gang allegations and firearm enhancements (which were based in part on the gang allegations). The prosecution relied in large part on the testimony of Inspector Jamie Draper of the East Palo Alto Police Department to prove the gang allegations and gang-related firearm allegations.

D. Gang Evidence

Inspector Draper testified about his qualifications and experience, which included 17 years as a police officer focusing on gangs. He had attended over 600 hours of gang training and provided training; had been assigned to the county-wide gang task force; had done gang patrols in areas that included East Palo Alto; had debriefed gang members on an almost daily basis; and had testified as an expert 67 times. He spent about 25 to 30 percent of his time focusing on African-American gangs in East Palo Alto and spent 65 to 70 percent of his time focusing on Norteno/Sureno gangs. His current assignment included having the responsibility at the district attorney's office of becoming familiar with the primary sets in East Palo Alto.

The three primary African-American gangs in East Palo Alto were the Da Vil gang (or Village Mob), the Taliban gang (no relation to the Afghanistan terrorist group) and the Gardens or G-Town. The Da Vil gang claimed “The Village” area or the university village. There were several locations where its members hung out, including the 2500 block of Illinois street, and they used a hand sign with their fingers extended and the ring finger folded down to spell out “Vil.” Fire N Squad was a rap group associated with Da Vil. The Taliban was a violent rival of Da Vil and that rivalry has resulted in murders. Sac Street, a mixed race gang, is aligned with Da Vil.

Inspector Draper testified that the Da Vil gang had about 30 members at the high end and about 10 to 15 members who were really active. It had several primary activities, most of which centered around the making of money, and was a criminal enterprise that engaged in narcotics sales and possession of firearms. The main benefit of being in the gang was it glamorized the lifestyle, and everybody's goal was to make money by whatever means necessary-narcotics sales, prostitution, robberies or burglaries. Violence and control over turf were part of the culture. East Palo Alto was a fairly small area, and firearms helped Da Vil be successful and fight back against the Taliban.

Inspector Draper identified three photographs in which the Da Vil sign was thrown, including one of appellant Gaines, which were taken from screen shots “from a video that was contained on a cell phone of another Village gang member named Fred Tippins.” Another photograph of appellant Bradford throwing the Da Vil sign was taken from his cell phone. The third photograph was of appellant Mitchell and came from the cell phone of Gabrielle Aguirre.

The Da Vil gang identified itself through tattoos. Investigator Draper identified a photograph of one Antuan Stinson, who in Draper's opinion was a member of Da Vil, showing his right arm with the word “Da Vil” tattooed down the right forearm and “2500” tattooed down the left, a reference to the 2500 block of Illinois Street. Draper identified a photograph of Luis Mariscal, a person who in his opinion was a member of Da Vil, with “Quota Boy, ” “loyalty” and “2500” tattooed on his back, and the logo for the Bentley automobile and “R.I.P. Bird, ” the nickname of a Da Vil Gang member who was now deceased (Isaiah Pittman) tattooed on his forearm. A photograph of appellant Bradford showed the same Bentley logo, signifying “Bird, ” who was killed in gunfire in East Palo Alto. Loyalty was an important concept in gangs. Another photograph showed a man Inspector Draper identified as Martel Taylor throwing the hand sign for Da Vil and wearing a tee shirt that said “Rest in Peace, Jabari Banford, ” another deceased subject who was a member of Da Vil.

In a photograph taken from appellant Bradford's phone, Bradford and appellant Gaines appear with three other men, Lamont Coleman, Eric Valencia Vargas, and Tyrone Love Lopez, who in Inspector Draper's opinion were members of Sac Street. The Sac Street members wore clothing consistent with that gang. Other photographs showed appellant Gaines and Bradford with men who in his opinion were members of Sac Street. A picture on appellant Bradford's phone showed a screen shot of him and a group of men who included Devon McKean and Martel Taylor, who is making the Da Vil hand sign, and which references Fire N Squad at the bottom. In another photograph taken from appellant Bradford's phone, appellant Gaines is depicted with Bradford and Devon McKean, with a reference to “movemeanmistress, ” “movemean” being a common term to identify the more active members of Da Vil. Another photograph showed appellant Bradford and Luis Mariscal showing disrespect to the Taliban.

Inspector Draper identified the photographs of four men-Luis Mariscal, Edward a.k.a. Bruce Grady, Jonathan Pittman and Jamar Smith-who he believed were gang members based on their tattoos and association with other members, and who were contacted within Da Vil territory by Menlo Park's narcotics enforcement team in a vehicle on February 18, 2010. Grady was...

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