People v. Sekona
| Decision Date | 29 January 2018 |
| Docket Number | B272444 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. SOSAIA KANANDALE SEKONA, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA091546)
APPEAL from a judgment of the Superior Court of Los Angeles County, Scott T. Millington, Judge. Remanded for a new trial on an enhancement and for resentencing.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Sekona of first degree premeditated murder following a shooting outside a restaurant in Inglewood. The jury also found true the allegations Sekona committed the crime to benefit a criminal street gang and personally and intentionally discharged a firearm causing death. Sekona argues the trial court violated his rights under the confrontation clause of the Sixth Amendment by admitting case-specific testimonial hearsay statements by the prosecution's gang expert, the People may not retry the gang allegation under the double jeopardy clause because there was no substantial evidence to support the jury's true finding on the gang allegation, and the trial court erroneously instructed the jury on the expert witness testimony in connection with the gang allegation. In a supplemental brief, Sekona argues recently enacted Senate Bill No. 620 requires remand for sentencing.
We conclude that the trial court prejudicially erred by admitting the gang expert's testimony and that the true finding on the gang allegation must be reversed and remanded for a new trial. We also conclude substantial evidence supports Sekona's conviction for first degree murder. Finally, we remand for a sentencing hearing under Senate Bill No. 620.
The Tongan Crips Gang, also known as TCG, was a criminal street gang in Inglewood whose members were primarily of Tongan heritage. Members of TCG committed various crimes, including assault with a deadly weapon, vehicle theft, attemptedmurder, robbery, kidnapping, and firearm possession by felons. TCG adopted the Crips criminal street gang heritage. TCG members used the same signs and symbols, and engaged in similar activities, as members of other Crips gangs. TCG members generally wore blue clothing and viewed members of the Blood gangs, who wore red clothing, as rivals. TCG's primary enemies were Samoan Blood gangs.
In the early morning hours of November 9, 2014, Shuichi Sugimoto and his friend Eleaser Diaz drove to a fast food restaurant on Hawthorne Boulevard in an area TCG claimed as its territory. Diaz entered the restaurant while Sugimoto got out of the car in the parking lot, walked to the back of the car, and began to urinate. Sugimoto was wearing bright red pants and, because he was of Japanese heritage, resembled a person from the Pacific Islands.
Sekona had arrived in the same parking lot moments before Diaz and Sugimoto. He got out of his car, stood next to Sugimoto, and without saying anything shot him at "point blank range." Sugimoto died from a gunshot wound to the head.
Immediately after shooting Sugimoto, Sekona fled in a black car driven by Christopher Taumalolo. Deputy Sheriff Ludy Orellana was a block away and heard the gunshot. When he saw the black car drive out of the driveway of the fast food restaurant, he began to pursue it. Sergeant Hugo Reynaga took over the pursuit, first in his car, then on foot. Although Sekona managed to escape by jumping a fence, Sergeant Reynaga saw Sekona's profile and observed him take off his sweatshirt and slippers before he jumped the fence. DNA from the slippers andsweatshirt matched Sekona's DNA. Taumalolo surrendered later that day.
Diaz identified Sekona as the person who shot Sugimoto. Miguel Arrredondo, an employee of the fast food restaurant, also saw Sekona shoot Sugimoto. Arredondo was certain of his identification because Sekona was a regular customer at the fast food restaurant and Arredondo had spoken to Sekona earlier in the evening at a liquor store.
The People charged Sekona with first degree premeditated murder. The People alleged Sekona committed the offense for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, within the meaning of Penal Code section 186.22, subdivision (b)(1).1 The People also alleged Sekona personally and intentionally discharged a firearm, within the meaning of section 12022.53, subdivision (d).
Detective Jonathan Calvert testified about the general culture of gangs, the history of TCG, the background facts establishing TCG was a criminal street gang, and documentation showing Sekona was a member of TCG. Based on a hypothetical mirroring the facts of this case, Detective Calvert testified Sekona committed the shooting for the benefit of, at the direction of, and in furtherance of the TCG criminal street gang.
The jury convicted Sekona of first degree murder and found true the gang and firearm allegations. In a bifurcated proceeding, the trial court found Sekona had suffered a prior serious or violent felony conviction.
The trial court sentenced Sekona to 25 years to life, doubled under the three strikes law, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), for a total prison term of 75 years to life. The trial court, citing People v. Lopez (2005) 34 Cal.4th 1002, "stayed" the sentence under section 186.22, subdivision (b)(1)(C). The court acknowledged that section 186.22, subdivision (b)(5), applied, but the court stated it would not impose a sentence for that enhancement because it had already sentenced Sekona to 75 years to life. Sekona timely appealed.
Sekona contends Detective Calvert violated his rights under the confrontation clause of the Sixth Amendment by relating case-specific hearsay when he testified about (1) TCG's primary activities, (2) the fact TCG used the fast food restaurant as a gang hangout, and (3) the contents of seven field interview cards (FI cards). Sekona argues the erroneous admission of this evidence compels reversal under People v. Sanchez (2016) 63 Cal.4th 665, 684-685 (Sanchez). We conclude that the trial court erred by overruling Sekona's objections to the detective's testimony about the contents of six of the seven FI cards, as well as by receiving those cards into evidence, and that, in light of theprosecutor's reliance on the FI cards to prove the gang enhancement, the errors were not harmless.
Sekona filed a motion pursuant to Evidence Code section 403 for a hearing to determine the admissibility of the FI cards, arguing their admission violated the confrontation clause of the Sixth Amendment. At the hearing, counsel for Sekona argued Detective Calvert was not competent to testify at trial about TCG because at the preliminary hearing the detective stated he had relied on police reports and FI cards prepared by other officers. The prosecutor argued that under People v. Gardeley (1996) 14 Cal.4th 605 the gang expert could testify about the FI cards, but the prosecutor did not make any argument or introduce any evidence on the issue whether the FI Cards were testimonial hearsay. The trial court ruled that under Crawford v. Washington (2004) 541 U.S. 36 the expert could testify about the FI cards as the basis of his opinion, the prosecutor could use the FI cards to show the basis of the expert's opinion, but the prosecutor could not offer the FI cards for the truth of their contents.
At trial Detective Calvert testified he had served as a police officer for over 12 years, including nine years investigating Pacific Islander criminal street gangs in Long Beach. When Detective Calvert began testifying about the history of TCG, counsel for Sekona objected that the detective's testimony was not based on personal knowledge. Counsel for Sekona asked for a limiting instruction, stating: The trial court overruled the objection and stated the expert could testify about "what his opinion is based on." The court also ruled that, when the prosecutor questioned thedetective about the FI cards, the court would instruct the jury the cards "are not offered for the truth of the matter asserted but simply for the officer's opinion . . . ."
Detective Calvert proceeded to testify that TCG originated in Inglewood but also operated in Hawthorne and Long Beach. TCG's main rivals were the Blood gangs, which identified with the color red, and the Piru gangs, which identified with the color burgundy. If a person wore red in TCG territory, TCG members would target the person for harm because red was "their enemy's chosen color." TCG graffiti depicted the letters "BK" and "PK," abbreviations for Blood Killer and Piru Killer, with the letters BK and PK crossed out to indicate disrespect to the rival gangs.
Detective Calvert explained a gang had to control its territory because, to sell drugs or run prostitution, the gang needed to control an area...
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