People v. Roberts

Decision Date15 September 2010
Docket NumberCertified for Partial Publication. ,No. D053377.,D053377.
Citation184 Cal.App.4th 1149,109 Cal.Rptr.3d 736
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jamal Roosevelt ROBERTS et al., Defendants and Appellants.
CourtCalifornia Court of Appeals Court of Appeals

Allen R. Bloom, San Diego, for Defendant and Appellant Jamal Roosevelt Roberts.

Koryn & Koryn, Beverly Hills, and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant Milton Allen Pettis.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner, Ronald Jakob and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.


A jury convicted Jamal Roosevelt Roberts III and Milton Allen Pettis of conspiracy to commit murder (Pen.Code,1 §§ 182, subd. (a) (1) & 187, subd. (a)) and found the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1).

Roberts contends his conviction must be reversed because the evidence against himwas obtained as a result of an illegal wiretap under the Presley-Felando-Eaves Wiretap Act of 1988 (§§ 629.50 et seq.) (Act) and in violation of his rights under the Fourth Amendment to the United States Constitution. Roberts also contends the court erred when it did not suppress evidence obtained as a result of an illegal vehicle stop, admitted prejudicial and damaging gang-related photographs and allowed inadmissible gang expert testimony about his state of mind and conduct. He raises a claim of ineffective assistance of counsel. In addition, Roberts claims the denial of his motion for separate trials constituted an abuse of discretion and resulted in a violation of his federal due process and Fourteenth Amendment rights. Notwithstanding these errors, Roberts asserts the evidence was insufficient to support his conviction for conspiracy to commit murder.

Pettis contends the court erred when it denied his motion to suppress evidence obtained by wiretaps.2 He asserts his conviction is not supported by substantial evidence.

For reasons we shall explain, we conclude that the wiretaps were obtained legally and minimized in accordance with the relevant statutes. We do find that the court erred when it did not require the state to provide timely reports to the court under section 629.60 and to file an application to use nontargeted intercepted communications as soon as practicable as required by section 629.82, subdivision (a)(1).

As a matter of first impression, we hold that when a defendant moves to suppress evidence on the grounds the reports required under section 626.60 were inadequate or untimely, the state has the burden to show there was no error, the violation did not contravene a central purpose of the Act, or the purpose of the provision was achieved despite any error. ( People v. Jackson (2005) 129 Cal.App.4th 129, 146-147, 28 Cal.Rptr.3d 136 ( Jackson ).) We conclude under this framework the court did not err when it denied defendants' motion to suppress wiretap evidence under section 1538.5.

Because of the judicially authorized intrusion into a constitutionally protected zone of privacy, the state and the court must strictly comply with statutory requirements. During the pendency of the wiretap, the supervising judge must closely monitor the state's compliance with the authorization order to ensure the intercepted communications are properly minimized and to immediately terminate the wiretap order if warranted. Section 626.60 is central to the Act because it allows the judge supervising the wiretap to ascertain the need for continued interception of private communication. The supervising judge must also maintain meticulous records of the proceedings.

We also find the Act requires court approval to use intercepted communications related to certain enumerated offenses that were not the target of the wiretap order before those communications may be used in criminal court proceedings. Although we conclude the court erred when it did not consider the application and later, when the omission was brought to its attention, did not make the findings required by law, the errors were harmless. Otherwise we find no error and affirm the judgments.


The criminal proceedings against Roberts and Pettis resulted from the convergenceof two chains of events—a history of retaliatory violence between the Deep Valley Crips (Crips) and the Deep Valley Bloods (Bloods), street gangs which operated in the same area of northern San Diego County, and a law enforcement investigation into narcotics trafficking by the Crips, which eventually involved wiretap surveillance of Roberts's and Pettis's cellular telephones. Crips members and associates were predominantly, but not exclusively, African-American. The Bloods were known as a Samoan gang and wore red to signify membership.

Defendants Roberts and Pettis are two of eight members of the Crips who were indicted in March 2005 on charges of conspiracy to commit murder for the benefit of, at the direction of, or in association with a criminal street gang. (§§ 182, subd. (a)(1), 186.22, subd. (b)(1), 187, subd. (a).) Fellow Crips members Curtis Brown, Calvin Landfair, Timothy Jackson, William Bright, Jr., Arthur Harvey and Terrell Jackson were also named in the indictment. Pettis's moniker was "Shakes" and Roberts's monikers were "J-Low" or "Low." 3

Beginning in the early 1990's, the Crips' and the Bloods' competing claims to the Deep Valley area in Oceanside led to a series of retaliatorymurders and shootings. The violence escalated after November 2002, when a Crips gang member randomly shot into a home known to be a meeting place for the Bloods and killed Pearl Seau, an important figure to the Bloods.

Multiple retaliatory shootings between Crips and Bloods occurred in November 2003 and March, July and September 2004. In March 2004 Bloods shot at the homes of Pettis's and Calvin Landfair's mothers while family members were present. The last shooting in this timeframe occurred on September 11, 2004 when Bloods shot at an apartment where a group of Crips was gathered and a Crips member retaliated, killing a member of the Bloods.

In early 2004, the Narcotics Task Force (task force), a federal, state and local multi-agency unit assigned to the Drug Enforcement Administration (DEA), began an investigation into alleged drug trafficking by Pettis and the Crips. In November, when the investigation stalled, the task force obtained wiretaps on the cell phones used by Pettis and Curtis Brown.4

The course of the narcotics investigation changed when officers intercepted the following telephone call from Pettis to Landfair on December 13, 2004 (call 4678).5

"[Pettis]: Hey, I want to put something together, man. I think they kinda due for it.
"[Landfair]: What's up?
"[Pettis]: You got, you got any plans, any ideas about, you know, some Sams?
"[Landfair]: What's crackin' with them?
"[Pettis]: Some credible heads, you know? You know what I mean?
"[Landfair]: Yeah.
"[Pettis]: I'm just fuckin' with credible heads, you know what I mean?
"[Landfair]: Yeah.

[109 Cal.Rptr.3d 746, 184 Cal.App.4th 1162]

"[Pettis]: Not just anybody that's got red shoes on. You know what I mean?
"[Landfair]: Yeah.
"[Pettis]: If you got any, I mean any info, man. I think it's prime time right now. They're laid back, they're kickin' back and they think it's over.
"[Landfair]: That's what we tryin' to find out.
"[Pettis]: Oh, you guys are.
"[Landfair]: Yup.
"[Pettis]: Okay, listen, man. I'm sayin' right now, man. Any credible heads, man, let me know. Let's put something together, man. I've been talking to [Roberts] and I've been talking to a couple of cats, man. I think it's due, they're due for a major smashing, man. We're ready for wave number two. You know what I'm sayin'?
"[Landfair]: Yeah.
"[Pettis]: So, any credible heads, [J.L.], [S.], [M.] I mean ... you're over there. You know more than me. You know what I mean?
"[Landfair]: We trying to get two niggers. We tryin' to get one. One [S.] kidnap that nigger and do some torture to him, and then that black nigger [D.]. We're trying to get him. We're trying to get them before Christmas.
"[Pettis]: Okay, listen, if you already got, if you already got a team. If you already got a squad together ... let me know about, like if you know two different spots, let me know about one of them, so we could hit 'em both at the same time. I mean, they're due for a major let down, homie. You know what I mean.... Not so much, but major heads.
"[Landfair]: Yeah.
"[Pettis]: So, the nigger ... you want to kidnap him and get some info from him?
"[Landfair]: Yup.
"[Pettis]: And after you get the info, lay him down?
"[Landfair]: Yup.
"[Pettis]: Okay. Alright, I like that. But we want info on heads, homie.... On straight heads ... like that nigger called [B.] or whatever his name is.
"[Landfair]: Yeah.
"[Pettis]: That nigger, preferably, [L.R.].
"[Landfair]: Yeah, that's one, that's one ... I'm trying to get too.
"[Pettis]: ... [B.R.] too but [L.R.] more him cause he's kinda like active and he think he's a tough shit.... I think it'll affect them more than [B.R.].... You know what I mean? But credible heads, man. That's what I'm talkin' about credible heads. Everybody else, I'm not, I'm not doin' it. It's all good if it goes down, but I want heads. You know [what] I mean?
"[Landfair]: Yeah.
"[Pettis]: I want heads where they be like, 'Oh my God, yeah! woo woo.' You know what I mean?
"[Landfair]: For sure."

Later that day, Curtis Brown telephoned Pettis to tell him he had located one of the "credible heads" and he had called Landfair to obtain a weapon. During the next few days, Pettis spoke with Roberts and other Crips members as they tried to find leaders of the Bloods and secure guns.

On December 15, Pettis telephoned Roberts and...

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