People v. Killebrew

• Decision Date: 08 November 2002
• Docket Number: No. F036957.,F036957.
• Citation: 103 Cal.App.4th 644,126 Cal.Rptr.2d 876
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lloyd Glenn KILLEBREW, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

126 Cal.Rptr.2d 876

103 Cal.App.4th 644

The PEOPLE, Plaintiff and Respondent, v. Lloyd Glenn KILLEBREW, Defendant and Appellant.

No. F036957.

Court of Appeal, Fifth District.

November 8, 2002.

Review Denied January 15, 2003.

Gordon S. Brownell, under appointment by the Court of Appeal, St. Helena, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Lloyd G. Carter and Michelle L. West, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CORNELL, J.

This case involves the use of expert testimony about criminal street gangs. Lloyd Glenn Killebrew was convicted of conspiring to possess a handgun, a felony. (Pen. Code, §§ 182, 12031, subd. (a)(2)(C).) Killebrew did not have a handgun in his possession, but it was alleged that he was part of a conspiracy to possess the handgun. At trial, a police officer testified as an expert on gangs to establish not only Killebrew's membership in a criminal street gang, but his subjective knowledge and intent to possess the handgun.

We conclude that the testimony about Killebrew's subjective knowledge and intent was inadmissible and that the evidence was insufficient to establish that Killebrew was involved in a conspiracy to possess the handgun. Accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

In the early evening hours of August 6, 1999, at Casa Loma Park, members of the Country Boy Crips criminal street gang, as well as many women and children, attended a gathering to honor a friend who had died. A black Jeep Cherokee drove by the park. Gunfire from a rifle erupted from inside the vehicle. At least two people were killed. The shooters identified themselves as members of the East Side Crips criminal street gang.

The Bakersfield Police Department immediately instituted a heightened state of alert, anticipating retaliation for the shooting. Two patrol officers¹ observed three cars driving in East Side Crip territory shortly after midnight. The cars maneuvered in a manner that led the officers to believe the occupants of the cars were traveling together. The officers pulled alongside the cars. Inside each of the first two cars, a Chevrolet and a Mazda, the officers saw four young Black males. In the third car, a Chrysler, the officers saw two young Black males and at least one other person in the backseat. One officer testified there were two in the backseat, while the other officer testified he saw movement in the backseat establishing there was at least one passenger. One officer testified that a backseat passenger had a "puffy braids" hairstyle.

Of the 10 men the officers observed, they recognized only one passenger,² and they knew this individual to be a member of the East Side Crips. The officers concluded that everyone in the three cars was a member of the East Side Crips because the cars carried young Black males, it appeared the cars were being driven together, and one passenger was an East Side Crip. Moreover, the officers reasoned that because the East Side Crips would be expecting retaliation for the Casa Loma Park shooting, they would travel only in large groups that night and would carry weapons for protection.

The officers maneuvered their vehicle behind the Chevrolet, the vehicle in which the known gang member was a passenger, and activated the lights on their patrol car. The Chevrolet made a left turn and stopped. When the officers approached, they observed the rear seat passenger putting a handgun under the front seat. The four occupants were arrested without incident and a handgun was recovered.

The other two vehicles made U-turns when the Chevrolet made the left turn. One officer observed the two vehicles drive by the location of the stop a second time, making a U-turn at the same intersection. Officers were dispatched to locate these two vehicles.

The Mazda and Chrysler were found at a nearby taco stand. Seven young Black men were identified as occupants of these vehicles. They had stopped for food and to make a telephone call. A search of the taco stand located a handgun hidden in a shoebox next to a grease Dumpster. All seven men were arrested. The only fingerprint recovered from either the box or the gun did not belong to any of the arrested men.

We have yet to mention Killebrew. He was not in the Chevrolet or the Mazda. Killebrew was seen that evening observing the stop of the Chevrolet from a street corner. Two unidentified Black men were seen walking away from his location, although no one saw these two with Killebrew. Nonetheless, Killebrew was arrested.

The prosecution theorized that the threat of retaliation compelled the occupants of the three vehicles to conspire to possess the handgun in the Chevrolet and the handgun found at the taco stand, a violation of Penal Code section 12031, subdivision (a)(1).³ The participants were all alleged to be active members of a criminal street gang. (§ 186.22, subd. (a).)⁴

The prosecution attempted to place Killebrew in one of the three vehicles and attempted to tie the handgun found at the taco stand to the Mazda. The prosecution relied on the testimony of Officer Carruesco who testified there were four occupants in the Chrysler. Three of the occupants were arrested at the taco stand. The prosecution argued Killebrew was the fourth occupant in the Chrysler and was seated in the front passenger seat. This theory was undermined by the fact that both Carruesco and Heredia testified that they knew Killebrew and would have recognized him if they had seen him that evening. They both observed and did not recognize the front seat passenger in the Chrysler. Moreover, Killebrew did not have the "puffy braids" hairstyle of the backseat passenger.

Three of the occupants of the Mazda, Charles Fair, Jr., Brian Duke, and Marlon Edward Fair, denied a gun was in the Mazda and that Killebrew was in the Chrysler. Sean Daniel Powell testified he was in the Chrysler that night and Killebrew was not.

Ramon Dontee Redding, a jailhouse informant, testified in exchange for dismissal of drug possession charges that Charles Fair and Duke told him that Dwight Jones, the fourth passenger in the Mazda, possessed the gun. Redding also testified that Fair and Duke both stated that Killebrew was not in any of the three vehicles.

DISCUSSION

1. Admissibility of Evidence

Killebrew argues that the trial court erred in allowing the prosecution to introduce extensive evidence about the Casa Loma Park shooting and in allowing William Darbee, a Bakersfield police officer who testified as an expert witness on gangs, to give an opinion about the intent and knowledge of gang members when in the presence of guns.

A. The Casa Loma Park Shooting

The prosecution's theory was premised on the effect the Casa Loma Park shooting would have on members of the East Side Crips. According to the prosecution, the Casa Loma Park shooting was a major gang event guaranteed to generate retaliation. The prospect of retaliation was the basis for the actions taken by the officers that night as well as the foundation of the prosecution's conspiracy theory.

Instead of allowing a brief summary of the Casa Loma Park shooting, the trial court allowed extensive testimony about the events at the park. Killebrew argues the trial court erred in so doing because the probative value of the evidence was substantially outweighed by its prejudicial effect and the evidence was cumulative. (Evid.Code, § 352.)

Evidence Code section 352 gives the trial court discretion to determine if otherwise relevant evidence should be excluded because its probative value is substantially outweighed by its prejudicial effect or if the evidence is cumulative.⁵ We review for an abuse of discretion while giving the trial court's determination deference. (People v. Kipp (2001) 26 Cal.4th 1100, 1121, 113 Cal.Rptr.2d 27, 33 P.3d 450.) For Evidence Code section 352 purposes, prejudice refers to evidence that uniquely tends to evoke an emotional bias against the defendant without regard to its relevance on material issues. (People v. Kipp, supra, at p. 1121, 113 Cal.Rptr.2d 27, 33 P.3d 450.)

The evidence was relevant since it provided the only support for the prosecution's theory of the case. Without evidence of the Casa Loma Park shooting, there would be no motive for the gang members to conspire to carry the guns. It was the prospect of retaliation, according to the prosecution, that motivated the gang members.

Evidence, however, that Killebrew was an East Side Crip and that the East Side Crips were responsible for the shooting undoubtedly evoked the kind of emotional bias that Evidence Code section 352 is designed to preclude from the courtroom. Although the issue is close, we are not prepared to say the trial court abused its discretion when it determined the prejudicial effect of the evidence did not substantially outweigh its relevance.⁶

B. Opinion Testimony

Generally, a witness may testify only about matters of which he or she has personal knowledge. (Evid.Code, § 702, subd. (a).) A lay witness may provide opinion testimony if such opinion is rationally based on the perception of the witness, and is helpful to a clear understanding of his or her testimony. (Id., § 800.)

An expert witness, on the other hand, is one who has special knowledge, skill, experience, training, or education sufficient to qualify as an expert on the subject to which his or her testimony relates. (Evid. Code, § 720.) An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. (Id., § 801.) The opinion must be based on matter perceived by, or personally known, or made known to the witness at or before the hearing that is of the type that reasonably may be relied on in forming an opinion on the subject to which the expert's testimony relates. (Ibid.) On direct examination, an expert may state the...