People v. Williams

• Decision Date: 23 January 2009
• Docket Number: No. E042038.,E042038.
• Citation: 170 Cal.App.4th 587,88 Cal. Rptr. 3d 401
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. KENNETH DEMARIO WILLIAMS, Defendant and Appellant.

170 Cal.App.4th 587

88 Cal. Rptr. 3d 401

THE PEOPLE, Plaintiff and Respondent, v. KENNETH DEMARIO WILLIAMS, Defendant and Appellant.

No. E042038.

Court of Appeals of California, Fourth District, Division Two.

January 23, 2009.

Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kyle Niki Shaffer and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HOLLENHORST, J.

I. INTRODUCTION

Defendant Kenneth Demario Williams appeals from his conviction of: Possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)—count 1); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—a lesser offense in count 2); possession of a controlled substance while armed (Health & Saf. Code, § 11370.1—count 3); possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)—count 4); and participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)—count 5), along with the true findings on allegations as to counts 2 through 4 that defendant committed the crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)).¹

Although framed under a variety of headings—trial court abuse of discretion, trial court misconduct, and prosecutorial misconduct—defendant's principal argument is that it was error to admit evidence about dozens of contacts defendant and fellow gang members had with law enforcement, regardless of whether those contacts had led to convictions or even to arrests, and regardless of whether the evidence had any reliable basis. Although we find plain error in the admission of such unnecessary quantities of evidence, which turned the trial of this routine drug and weapons possession case into a weeks-long marathon, we nonetheless find the error harmless because the case against defendant was overwhelming.

Defendant also contends (1) the trial court erred by permitting expert witnesses to give opinions on the ultimate issues; (2) the trial court committed other misconduct; (3) the evidence was insufficient to support defendant's conviction because a police officer testified that any one of the seven persons present in the house where the contraband was found could have possessed the guns and drugs; (4) misdemeanor assault was erroneously identified to the jury as a predicate offense to support the gang charge and enhancement allegations; (5) the trial court erred in instructing the jury that the specific intent for the gang enhancement was to promote any criminal conduct; (6) the trial court erred in failing to instruct the jury sua sponte on the definition of the term "principal"; (7) the prosecutor committed misconduct; (8) the upper term for the gang enhancement allegation in count 3 violated defendant's Sixth Amendment right to a jury trial; (9) other sentencing errors occurred; and (10) cumulative errors resulted in a fundamentally unfair trial.

The People concede a sentencing error must be corrected, and we conclude additional sentencing errors must likewise be corrected. We find that any other errors that occurred, whether considered individually or cumulatively, were not prejudicial, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Evidence Relating to Current Charges

On February 16, 2006, Palm Springs Police Department officers went to an address on Avenida Cerca (the Avenida Cerca house or the Avenida Cerca address) to arrest Dimitri Allen on an outstanding warrant. Allen, who had been standing on the front porch of the house when the officers arrived, went inside and closed the door after the officers identified themselves and ordered him to the ground. The officers called for backup and set up a perimeter.

Sergeant Bryan Anderson knocked on the door. Defendant eventually opened the interior door but left the security screen locked. The officers told defendant they were there to serve the arrest warrant on Allen, but defendant refused to let the police enter. In a two- to three-minute conversation, defendant told the officers several times that they had no right to enter his house and that he had been working on the computer in his bedroom. Defendant was visible to the police the entire time, and the officers could hear other persons moving around inside the house. Eventually, defendant allowed the officers to enter the house.

Defendant and six other men—Allen, Tracy Session,² Christopher Manning, Bobby Shaw, Trevon Smith, and Damion Lee³—exited the house. All the men except Shaw were members of the Gateway Posse Crips (GPC) gang, and Shaw was an associate of that gang. A woman, Michelle Booty, was outside the house beside a car.

The officers searched the house. In the northeast bedroom, they found a laptop computer and two cell phones on a bed. A loaded nine-millimeter handgun was under a pillow on the bed. In that bedroom, the officers also found a drug pipe, two digital scales, and mail addressed to defendant at the Avenida Cerca and other addresses. The officers also found defendant's driver's license and California identification card in the bedroom; both pieces of identification had the Avenida Cerca address on them. A box of .44 magnum ammunition and a box of nine-millimeter ammunition were found on the dresser and a box of .44 Winchester ammunition was found in a Louis Vuitton bag in the bedroom closet. The closet contained men's clothing consistent with defendant's size. A ball cap found in the bedroom bore defendant's moniker, "Swif."⁴

In the garage, approximately 11 to 15 feet from the bedroom, the officers found a duffel bag that contained 11 baggies of methamphetamine and a revolver with the word "Crip" etched on it. It was stipulated that one baggie contained 3.3 grams of methamphetamine, and each of 10 smaller baggies contained 0.5 grams of methamphetamine.

The officers arrested all seven men who had been in the house for possession of guns and methamphetamine. Defendant, who was unemployed, had $776.98 in his possession. Manning had $0.35 on him; Shaw had $73.01; Smith had $72.40, and Session had $17.76.

Sergeant Matthew Beard testified at trial that the guns, ammunition, and drugs belonged to defendant. At the preliminary hearing, Sergeant Beard had testified that all those in the house had access to the drugs and firearms.

Sergeant Anderson testified as an expert on methamphetamine and drug sales. He testified that 0.5 grams of methamphetamine were a usable quantity worth $25 to $40, and 3.3 grams of methamphetamine were worth $120 to $180. In his opinion, the methamphetamine was possessed for sale. That opinion was based in part on the amount of methamphetamine and the manner in which it was packaged, as well as the presence of the scales and cell phones. That opinion was also based on evidence of other crimes admitted under Evidence Code section 1101, subdivision (b), further discussed below, and on a search conducted at defendant's home in December 1989. At the time of the 1989 search, defendant had been living with a relative, Kenneth Crawford, who was a member of a predecessor gang to the GPC. During that search, the officers had found one or two sawed-off shotguns, a handgun, and drug paraphernalia. Another person in the house had drugs on his person. Defendant was arrested in that incident for maintaining a drug house, and he received diversion. Sergeant Anderson also testified he would have formed the opinion that the methamphetamine was possessed for sale even without considering defendant's prior conduct.

Sergeant Anderson further stated his opinion that defendant had worked his way up from being a street-level drug seller or runner to his present position in which others sold drugs for him. The basis for that opinion included a police report stating that in February 1988, an officer had seen defendant on a street corner tossing a rock of cocaine. A fight had ensued when the officer had tried to arrest defendant, and defendant had escaped but had later turned himself in.

B. Evidence of Defendant's Other Crimes and Arrests

Before trial, the trial court ruled the prosecutor could introduce evidence under Evidence Code section 1101, subdivision (b), of three prior crimes involving defendant. At trial, the prosecutor produced evidence of those crimes, as follows:

(1) In December 1991, officers searched defendant's home and found two handguns, a rifle, a submachine gun, a shotgun with a pistol stock, a high-powered rifle, ammunition, $1,277 in cash, baggies, pay/owe sheets, and four pieces of rock cocaine. Defendant had another $360 on his person. Defendant was convicted in 1993 for possessing a controlled substance. (Health & Saf. Code, § 11351.5.) At the time of his arrest, he said he supported himself and his girlfriend and children by selling rock cocaine, and the money found was from such sales. He told the officers he was a member of the GPC, he had several drug runners working for him, and he needed the guns because he was a gang member selling rock cocaine.

(2) In January 1992, a police officer saw defendant and two GPC members standing near a parked car. When the officer approached, defendant twice reached into his waistband and each time placed an object into the trunk of the parked car. The officers conducted a consensual search of the car and found two pagers and a loaded pistol. Defendant admitted ownership of the pagers and the pistol. The officers arrested defendant for having a concealed firearm and found $1,428 in cash in his pocket. Sergeant Anderson testified that at the time, drug dealers and buyers communicated with pagers.

(3) In April 2003, pursuant to a search warrant, police officers searched Session's house, where defendant was then living. Defendant, Session, and another GPC member were present during the search. The officers found a modified shotgun in defendant's bedroom,...