| |
Superior Court of the State of California
County of San Francisco
People of the State of California,
Plaintiff,
vs.
Def Def,
Defendant.
Motion to Set Aside the Information
As to the 186.22(b) enhancements attached to Counts 1,2, 3 under Penal Code Section 995
Date:
Time:
Dept:
Def moves to set aside the gang benefit enhancements in Counts 1, 2, 3 on the grounds that there was insufficient cause adduced at the preliminary hearing. The issues are:
1. Specific intent to benefit a gang (Pen. Code § 186.22(b) enhancements: Counts 1,2,3).
A crime committed in gang territory is not necessarily for gang benefit, even if an expert speculates that it is for that purpose. Here, the gang-benefit allegation is based on shooting at Twin Towers members because the area is contested between these two gangs and Def is a Down-Below gang member. No evidence was presented that the two men who "hit the deck" were gang members, let alone Twin-Towers members. Can the expert, Cop, assume gang purpose without foundation, to opine that shooting was for a gang benefit?
2. No evidence that an assault occurred (Pen. Codes, §§ 245; Counts 1 and 2).
An assault is an attempted unlawful touching: general intent must be shown along with an objective awareness that a person in the area may be unlawfully touched. Here, police saw Def shooting in a particular direction on the street but police did not see whether a person was targeted. Down the block, police heard the shots and saw two men take cover and then run, but did not see who shot or where the bullet traveled. Is there sufficient connection between the shots and hiding men, to believe an assault occurred?
3. Insufficient evidence of assault with a semiautomatic weapon (Counts 1 & 2).
Two percipient police officers said that Def discharged 4-6 shots. No gun was recovered. Sgt. Cop's noticed 6 bullet holes in the building, opining the gun was a semi-automatic: A revolver can only shoot six bullets, so he reasoned the gun must have been automatic. However, he could only say that 2 of the holes were fresh. Is Cop's guess that the other holes were created at the same time ¬¬— particularly when no evidence was presented regarding the prior condition of the building — provide foundation for his opinion that a semi-automatic was used?
Statement of the Case
An Information (filed April 4, 2009) charges five felonies arising from the same incident:
• Count 1: Assault with a firearm on John Doe 1 (Pen. Code, §245(b)), Enhancements: use of a firearm (Pen. Code, § 12022.5), armed with a firearm (Pen. Code§ 12022(a)(1)) and committed for a street gang benefit (Pen. Code, 186.22(b));
• Count 2: Same charge as to John Doe 2, and same enhancements as Count 1;
• Count 3: Negligent discharge at an inhabited dwelling (Pen. Code, §246), and same enhancements Counts 1 and 2;
• Count 4: Active gang member (Pen. Code, § 186.229(a));
• Count 5: Possession of a loaded firearm (Pen. Code, §12031(a)(2)(C)).
Statement of Facts
A. Def fires shots at two persons unknown.
Officer Cop was on patrol when he saw a car he recognized as belonging to Steven Cop. Def Def got out of the passenger side of the car and, using a handgun, discharged four to six rounds.
Though Cop did not see where the shots were aimed, a video of the area down the street made at about this time showed two men "hitting the deck," and then running. These men in the video were never identified, though another officer, Lewis, who heard the shots saw two men running.
B. Exhibiting a weapon as Def flees.
Def also started running. When the officers came parallel to Def, they noticed Def with a gun in his hand. Cop could not say whether it was an automatic or revolver.
C. Damage to an inhabited dwelling: 2 fresh bullet holes.
A video camera showed the far end of the street in the direction of Def's shots; two men "hit the deck" and then ran at about the time the gun was discharged. The police later found two "fresh" bullet holes on the building located at 1429 Sunnydale and more than four other holes (unknown if fresh). There was broken Cop, but Cop could not determine when it was broken. Two shell casings were found near where the shooting had occurred and bullet fragments were found in the house and broken Cop consistent with a shooting were found. No evidence was adduced that the holes or damage to 1429 was not there previously.
A number of other bullet holes were noticed in the side of 1429. The bullets' trajectories were consistent with coming from the west.
D. Cop's opinion the weapon was a semi-automatic.
Cop could not tell from either his observations, or by the casings, whether the source of the shots striking 1429 Sunnydale was a revolver or semi-automatic.
Though no gun was recovered, Sgt. Knoble opined that based on the number of holes in the building, it had to be a semi-automatic weapon.
E. Evidence of gang participation.
(1) The Down-Below Gang is a STEP gang.
Sergeant Cop testified as an expert on the practices and philosophies of African-American criminal street gangs in San Francisco. The Down-Below Gang is a criminal street gang primarily engages in the sales and possession for sales of narcotics. The gang is engaged in street violence against the rival Tower-Side Towers gang consisting of shootings and homicides. Based on his study on MySpace (an internet social website), Cop opined that the gang still exists though he found no photos of Def's association with the gang.
(2) Expert claims that Def and Cop are Down-Below gang members.
Cop testified that Def is a member of the Down-Below Gang. He based this opinion on his numerous conversations with Def, the previous instances that he investigated Def, and Def's new tattoo. Cop has had contacts with Def when he was with other gang members. Moreover, Def is and was a current suspect in gang-related incidents, and Cop has his own open investigation on Def and has found that Def contacts and visits known gang members in County Jail.
Cop arrived at this conclusion despite: 1) never having seen Def do any hand signals nor pictures with Def making hand signals; 2) knowing that Def is not a registered gang member; 3) knowing that that Def never proclaiming himself a Gang member; 4) no one ever telling him that Def is part of the Gang.
Cop explained that Def's tattoo consists of a picture of a jester and the word
"low," a very common symbol for serious Down-Below Gang members. Cop adds that the tattoo is very new and usually means a big commitment. Thus, the event itself demonstrates that the act was specifically intended to represent the Down-Below Gang.
Cop opined that Cop also is a member of the Down-Below Gang based on his previous arrests, photographs, contacts, conversations, and field interviews with him in and around the Sunnydale area.
F. Cop's conclusion: Crime was for the gang's benefit because shot was toward the Twin Towers.
Cop admitted that not all crimes in the Sunnydale area are associated with the Down-Below Gang. No other gang members were present at 1533 Sunnydale during the shooting and chase.
Cop concluded, however, that the act was for a gang benefit; and that because it occurred in broad daylight, Def had no fear of retaliation from the community. The key benefit in Cop's opinion seems to be that recently the gang has been engaged in shootings against the rival Tower-Side Towers gang and this shooting was in a neutral area between the two turfs.
Memorandum of Points and Authorities
1. Standard of review.
Penal Code section 995 provides that on defendant's motion, an information shall be set aside if the defendant had not been legally committed by a magistrate, or if the defendant had been committed without reasonable or probable cause.
An information must be set aside unless the reviewing court finds sufficient competent evidence to support the conclusion that there was probable cause to believe that a crime had been committed and that the defendant committed it. There must be some competent evidence to support each and every element of the offense, or the finding must fail. Though circumstantial evidence may be considered in making the determination, all inferences must be reasonable, and any inferences which derive from speculation, conjecture, or guesswork must be discarded.
A motion to set aside the information can be directed against enhancements as here.
2. Cop's speculation that the shooting was for gang benefit was insufficient to support the enhancements here.
Penal Code section 186.22 (b) applies where a person commits a crime for the benefit of, at the direction of, or in association with a criminal street gang and that person specifically intends to assist, further or promote criminal conduct by gang members. The prosecution's only evidence on this point was the opinion testimony of gang expert Cop.
Cop testified that Def committed the crime for the benefit of the Down-Below Gang and that Def had the specific intent to further their criminal conduct.
A. There was no probable cause to believe that Def committed a crime for the benefit of, at the direction of, or in association with a criminal street gang.
Section 186.22 (b) criminalizes conduct, not mere association. Here, the prosecution presented the Cop's opinion testimony that the shooting was committed for the benefit of the Down-Below Gang. Cop testified that there was a continuing battle over this area between the Twin Towers and the Down-Below gang. He opined that Def acted for this purpose and with this specific intent in shooting down the street.
The prosecution also relied on Def's friendships with suspected gang members. The second element of subdivision (b) of section 186.22 requires that defendant have "the specific intent to promote, further, or assist in any criminal conduct by gang members."
(1) Evidence of gang membership alone is insufficient.
Gang membership alone does not show that a crime is committed for the benefit of, at the direction of, or in association with a criminal street gang. Gang enhancements require "some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. Consequently, even if the court assumes that Def is an active gang member alone with Cop membership alone is insufficient to support the gang enhancement.
(2) There is no evidence that the shooting was committed for the purpose of gaining respect or part of a war.
Here, the prosecution argued that the shooting would benefit the gang. The only evidence concerning the purpose of the alleged crimes was the opinion testimony of Cop. Cop opined that this was part of a gang war due to location and Def's gang status. But, no evidence was presented to show that any particular gang was involved, nor was a particular identity mentioned, before, during, or after the fight; or that there was any bragging or acceptance of responsibility after the incident that would benefit the gang's reputation.
Further, Cop admitted that not all crime is gang-related in this area. Cop could not see who had been targeted, and Lewis who was down the block, could hear the about 4 shots and saw two men run across the street and jump a fence. (A video showed that the two men had hit the ground first at about the time of the shooting. ) No one could say these two men were targets of the shooting, and no one opined that the two men were gang members, let alone, from Twin Towers.
The Court of Appeal considered this precise question in the 2007 People v. Albarran case.5 In Albarran, a known gang member and an accomplice shot at a house during a private party hosted by a man from another gang. The prosecution relied solely on the expert testimony to prove gang-benefit. The expert testified that Albarran was a gang member, had gang tattoos, a gang moniker, and gang graffiti in his home.6 Though no gang names or signs were displayed during the incident, the gang expert "insisted that the shooters would gain respect within the gang absent such evidence," and that "by word of mouth, word on the street, it was known the . . . gang was at the party."7
In reversing the gang enhancement conviction, the Court of Appeal held, "[T]here was insufficient evidence to support the contention that this shooting was done with the intent to gain respect."8 "[T]he motive for the underlying crimes, in particular the shooting . . . was not apparent from the circumstances of the crime," noting that "the shooting occurred at a private birthday party for (the victim's) cousin."9
Despite the expert's opinion that the crime was committed to gain respect, the court disagreed, holding " ... this shooting presented no signs of gang member's efforts in that regard — there was no evidence that the shooters announced their presence or purpose - before, during or after the shooting." The court also found it significant that "[t]here was no evidence presented that any gang members had "bragged" about their involvement or created graffiti and took credit for it." In conclusion, the Court ruled "[t]here is nothing inherent in the facts of the shooting to suggest any specific gang motive. In the final, the only evidence to support the "respect" motive is the fact of (defendant's) gang affiliation."10
The facts here are indistinguishable from Albarran. Here, there is no evidence that any of the participants in the fight announced their presence, gang name, or a gang purpose at any time. There is no suggestion that the gang members bragged to others or sought to take credit for the fight. Like Albarran, here there is no evidence to suggest that Def's actions were motivated by any specific gang motive.
Just as the expert's testimony in Albarran failed to prove a gang benefit, here, the expert's conclusory statement that a shooting at unknown person, even in contested "turf" necessarily confers a gang benefit fails "to suggest any specific gang motive."12
Moreover, In re Frank S. held that expert opinion testimony on the issue of specific intent was improper. While the fact-finder may rely on expert testimony about gang culture and habits to determine a gang allegation, the court cannot rely on expert opinion alone to show that "a specific individual possessed a specific intent."14 In Frank S.,15 a gang expert testified that Frank — who was charged with illegal weapons possession — was a gang member. Frank had identified himself as a gang member during intake, wore gang clothing, and admitted that he carried the knife to protect himself against other gang members. The expert testified that the minor possessed the weapon to protect himself against rival gang members and to assault rival gangs and that weapons help the gang members protect themselves if they should be assaulted.16
In reversing the gang allegation, the Court of Appeal found "no substantial evidence supporting the specific intent element."17 The court expressly found that "[w]hile the evidence established that the minor has an affiliation with [the gang], membership alone does not prove a specific intent to use the knife to promote, further, or assist in criminal conduct of gang members."18
The recent Ramon case also supports the same conclusion. There, Ramon and another gang member were driving a stolen car in the possession of guns on gang turf when stopped. The Court of Appeal reversed the conviction.
Thus, Cop's opinion as to why Def was shooting without some indication that the targets were Twin Towers gang member is improper expert testimony. Indeed, Cop does not even try to suggest these two unknowns are likely members. Cop's reliance of Def's status is not enough to show gang benefit as illustrated by Albarran, Frank S., and Ramon.
3. No evidence shows that a Def knew, or should have known that the two men were targets or in the area.
Our Supreme Court explained: Despite "a certain measure of understandable analytical uncertainty" on the issue, assault is a general intent crime. While an attempt requires more than mere preparation, an assault requires a greater proximity to the underlying offense of battery. An act done toward the commission of the battery must immediately precede the battery, while an act constituting an attempt to commit an offense may be more remote.
"[A]ssault requires actual knowledge of those facts sufficient to establish that the offending act by its nature would probably and directly result in physical force being applied to another." This means that defendant must "actually know those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. . . In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur."
So, "a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." Mere recklessness or criminal negligence is still not enough.
Here, we have Def shooting which is an intentional act but actual knowledge of facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another is missing. No evidence was presented showing that Def was aiming at any person or knew any person was present when he fired. Count 3, negligent discharge of a weapon at an inhabited dwelling, is specific and covers the incident in full. Where there is the sound of shots and people who happen to be in the general area start to run away from the noise, this is not proof that the people running were targeted, or even if they were in the line of fire at all.
This stands in contrast to Williams who saw the witness behind the car and shot towards the area — though he may not have had the intent to batter, he was aware of the facts upon which a reasonable person would conclude that the shooting by its nature would result in the application of force. However, the proof of this knowledge is nonetheless missing here.
4. Insufficient proof that the weapon was a semiautomatic was adduced (Counts 1 and 2).
Assault with a firearm has a punishment triad of 2-3-4 years, but it jumps to 3-6-9 years in state prison when a semiautomatic is used as alleged in Counts 1 and 2. Here, Cop (not a percipient witness) did not provide a basis for his use of the term "semiautomatic." He was not proffered as an expert and his opinion that it was a semi-automatic was based on the number of bullets holes in a home (over six, the maximum number in a revolver), but only two of those holes could be confirmed as "fresh." Moreover, this conclusion flies in the face of the percipient officer's testimony that approximately four shot (Lewis) or between four and six shots (Cop) were discharged. Cop, who saw the shooting, could not tell if it was a semiautomatic or a revolver.
The circumstantial evidence is too weak here. There is no percipient testimony that more than six bullets were fired. The gang expert, not qualified as a gun expert, made is conclusion on examining only two holes as fresh. No testimony was adduced that the other holes were not old. Perhaps this would be an allowable inference in a more quiet area but the testimony was that this area is the scene of constant shooting. The inference that because 2 holes were fresh one can assume all the holes were fresh has no factual support. Ergo, these counts must fall.
Conclusion
The gang enhancements and Count 5 must be discharged because there was no evidence to support the expert's speculation that the shooting was for a gang benefit. The fact that a gang member did the shooting in a possibly contested area, is insufficient without some proof that the person attacked were gang members, or believed to be gang members. This lacuna in the expert's opinion is fatal and these allegations must be discharged.
Moreover, whether an assault occurred at all was not shown. An assault requires an attempt to unlawfully battery another. Here, Def did shoot down a street (but that is covered in Count 3 not challenged here) but there is no evidence he knew or was aware that others might be battered. That two unidentified men took cover, does not mean that they were targeted, were seen or were in the line of fire. It is only common sense to "hit the deck" anywhere when one here shots, whether one is in front of, to the side or behind the gun fire. Though the two men were in the general direction of the shooting there is nothing that shows Def had the awareness of their presence that is needed under Williams.
Finally, Cop's guess that the unrecovered gun was a semiautomatic is just that — a guess. The percipient police witness could not tell the type of gun used, and further testified there were 4- 6 shots fired (consistent with a revolver). Cop's speculation was based on two "fresh" bullet holes and his unfounded extrapolation that other bullets holes (total over 6) must have come from the same incident. This inference is unjustified, considering the testimony that is an area of common shootings.
|
|
 |
Site Map
The information on this California Criminal Defense Attorneys / Law Firm website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.
|
|
