People v. Thomas

• Decision Date: 10 June 2005
• Docket Number: No. E035829.,E035829.
• Citation: 130 Cal.App.4th 1202,30 Cal.Rptr.3d 582
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Melvin Hiram THOMAS II, Defendant and Appellant.

30 Cal.Rptr.3d 582

130 Cal.App.4th 1202

The PEOPLE, Plaintiff and Respondent, v. Melvin Hiram THOMAS II, Defendant and Appellant.

No. E035829.

Court of Appeal, Fourth District, Division 2.

June 10, 2005.

Certified for Partial Publication.^*

Review Denied October 12, 2005.

Marilee Marshall, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant

Attorney General, Pamela A. Ratner Sobeck, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

HOLLENHORST, J.

INTRODUCTION^**

FACTS AND PROCEDURAL BACKGROUND

In the evening of May 15, 2003, Brian Morrell parked his pickup truck on the street in front of Judith Barrera's house. Barrera was in the backyard when she heard a man yell, "F____ you, guys. E.Y.C."² Barrera ran to the front of her house where she saw codefendant Joseph Atilano Johnson get out of the front passenger seat of a car, jump into Morrell's pickup, and drive off. Defendant, who had been in the backseat of the car, climbed into the front passenger seat where Johnson had been sitting. Barrera recognized both defendant and Johnson because they had driven by her house in the same car a few hours earlier.

Barrera got into her own car to try to find Johnson and the truck. Ten or 15 minutes after the truck had been taken, she spotted it near a convenience store about a mile and a half from her house. Barrera and her aunt, who was with her in the car, saw Johnson pushing the truck toward the gas pumps at the convenience store. Both women testified they saw defendant get out of the passenger seat of the truck and enter the convenience store.

Barrera yelled out, "That's our truck." Johnson called defendant out of the convenience store, and the two men walked away. Barrera called 911. Johnson and defendant started running into a field at the back of the convenience store. After a search of the field, a deputy sheriff found defendant and Johnson at 7:45 or 8:00 p.m., lying on their stomachs and concealed by weeds.

Deputy Sheriff Donovan Brooks arrested defendant and Johnson. At the jail, defendant asked Brooks why they had been arrested, and Brooks said it was for stealing a truck. Johnson stated that he had seen the truck rolling down the street with the keys in it, so he jumped in and took off in it. Brooks told them that because someone had yelled out, "F____ you, E.Y.C.," they were also facing a gang enhancement. Johnson said that defendant had not even been there when he, Johnson, had yelled out that remark.

Riverside Sheriff's Officer Robert Kwan testified as a gang expert. Kwan described the structure of the different cliques within E.Y.C. as follows: "They have the P.W.L.'s, which is the Pee-Wee Locos, the kids in the elementary school levels. They have the Tiny Winos, which is between 12 and 18 years old, which their acronym is T.W.S., and then they have the Nite Owls, which are the guys that are 18 and older." Kwan testified that E.Y.C was primarily a Hispanic gang, although some of the members were White. The primary activities of E.Y.C. ranged "from graffiti to robbery, to burglary, to attempt murder, up to murder" as well as stealing cars.

In Kwan's opinion, both defendant and Johnson were members of E.Y.C., and the crime was committed for the benefit of the E.Y.C. Kwan based his opinion that defendant was a member of the gang on Kwan's "training and experience, reports written where he [was] a suspect, times [Kwan had] contacted him being in the presence of other gang members, when he was caught with Mr. Johnson; also with — that day being caught with another gang member." Kwan testified that he had known defendant "to admit to commit other crimes with other gang members." Specifically, Kwan referred to a 1992 robbery in which defendant and other gang members had stolen "some bikes and hats off some kids." In February 2002, when searching a house for an E.Y.C. member who was an attempted murder suspect, Kwan found defendant hiding in a concealed basement. Moreover, Kwan had seen an incident report that indicated that defendant had been present at a knife fight or stabbing in 1995 involving another E.Y.C. member, although defendant had not been charged with any crime in connection with that incident.

Defendant had numerous gang-related tattoos: "He's got `Elsinore' on his neck, on his eyebrow; `Y.C.' on his eyebrow; `P.W.L.' on his head underneath his hair; `Y.C.' on the back of his head. "P.W.L. on his arms; `E.Y.C.' across his whole midsection and chest. Numerous other tattoos depicting `South Side' or `I.E.'; `SUR,' S-U-R, `Y.C.' on his hands." Defendant had the number "13"<sup>3</sup> tattooed on his arm; "Thug" tattooed on his back; "Elsinore" tattooed on his back, and another tattoo stating "Brand."<sup>4</sup> Another tattoo on his arm stated "`909' depicting ... area code; that he's from the Inland Empire." He had "Brown Pride" on his arm. Defendant's head had been shaved when he was arrested so the tattoos on the back and side of his head were fully visible. In Kwan's opinion, that meant defendant was still active in the gang; otherwise, he would have grown his hair out to conceal the tattoos.

Kwan testified that he had talked with other E.Y.C. members about defendant, and they had told him that defendant was a member of E.Y.C. and that defendant's moniker was "Little Casper" or "Villain." Kwan had also talked with members of rival gangs about defendant's membership in E.Y.C.

In Kwan's opinion, based on his training and experience, the current crimes were committed for the benefit of E.Y.C. because the crimes caused fear and intimidation on rival gang members. A week before the pickup was taken, the graffito "Grizzly" had appeared on the fence next door to Barrera's house; "Grizzly" was Johnson's gang moniker.

On cross-examination, Kwan conceded that defendant did not appear in the photographs of E.Y.C. gang members that were introduced into evidence. Moreover, Kwan was not aware of any recent crimes defendant had committed, although he knew that defendant had committed crimes eleven and nine years ago and had had a seven-year prison term.⁵ Kwan testified that defendant was about 30 years old, and E.Y.C. was "predominantly geared towards younger age groups." Kwan testified on cross-examination that much of his expertise concerning Elsinore gangs had been provided by other Elsinore officers and deputies as well as by speaking with E.Y.C. gang members.

Kwan described conversations with gang members concerning defendant: "[J]ust a lot of consensual conversation, you know. We just started talking and names get thrown out on who's who and monikers and —." Kwan testified that he had not documented those conversations. The only record he had in his file concerning defendant was about the February 2002 contact when defendant was found hiding in a concealed basement. Kwan did not have any field identification cards for defendant. There was no record that defendant had bragged about committing any crimes. Defendant had not been charged with any gang enhancement in connection with the prior robbery.

The jury found defendant guilty of receiving stolen property in count 2 (§ 496, subd. (a)) and of active participation in a criminal street gang (§ 186.22, subd. (a)); however, the jury found him not guilty of vehicle theft in count 1.⁶ In bifurcated proceedings, the jury found true the allegations that defendant had suffered a prior prison term (§ 667.5, subd. (b)(5)); two prior serious convictions (§ 667, subd. (a)) and three strike priors (§§ 667, subds.(c), (e), 1170.12, subd. (c)(2)(A)).

The trial court exercised its discretion to strike two of defendant's strike priors with respect to count 2 and sentenced defendant on count 2 to the aggravated term of six years as a second strike. However, the trial court refused to strike any of the priors with respect to count 3 and sentenced defendant to a concurrent term of 25 years to life plus an additional and consecutive five-year term for each of the two serious felony priors for a total sentence of 35 years to life.

DISCUSSION

A.-B.^***

C. Admission of Hearsay Evidence of Gang Membership

Citing Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford), defendant contends that his right to confront witnesses was violated by the admission of hearsay evidence in the form of the gang expert's conversations with other gang members in which they identified defendant as a gang member. Deputy Kwan testified that he learned through casual, undocumented conversations with other gang members that defendant was a member of E.Y.C., and his gang moniker was "Little Casper" or "Villain."

1. Waiver

The People contend that defendant waived the issue by failing to raise an objection in the trial court on the basis now urged on appeal. However, because Crawford was decided after the trial in this case, we conclude that the failure to object was excusable. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2, 18 Cal.Rptr.3d 230.) We will therefore address the issue on the merits.

2. Analysis

In all criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, "to be confronted with the witnesses against him...." (U.S. Const., Amend. 6; Pointer v. Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.) The central concern of the Sixth Amendment's Confrontation Clause is "to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." (Maryland v. Craig (1990) 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666.)

In Crawford, the Supreme Court held that out-of-court statements that are testimonial in nature are inadmissible unless the...