Its right here
Court information about the Eight Tray Gangster Crips killing King Lou, a Rollin 60 crip in October 2004.
It says Keitaroc, mentioned in Monster Kody's book, was the initial target.
Filed 10/11/06 P. v. Jones CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
WILSON MACVAY JONES,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. BA 274191)
APPEAL from a judgment of the Superior Court of Los Angeles County. Norman J. Shapiro, Judge. Affirmed.
Victor J. Morse, under appointment by the Court of Appeal for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Wilson MacVay Jones appeals his conviction of first degree murder (Pen. Code, § 187, subd. (a)) arising out of a gang-related shooting. Defendant contends that the trial court committed reversible error in permitting the prosecution to present testimony amounting to an expert opinion that a third party could not have committed the crime. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Louis “King Lou” Davenport, a member of the Rolling 60s gang, was shot to death on October 31, 2004, while visiting the Motorcycle Club, an after-hours club at 88th Street and Western Avenue located in Eight-Trey gang territory. Defendant is a member of the Eight-Trey gang. The prosecution’s principal evidence at trial consisted of three eyewitnesses to the shooting. Defendant contended a third party member of another gang, Hashim Cridell (Cripto), was responsible because Cridell made statements he had shot someone on the night King Lou was killed.
A. Prosecution Evidence.
1. Eyewitness Testimony.
On October 31, 2004, Lunesa White and two of her friends, Lorie Lewis and Shanice, drove to the Motorcycle Club. White is an adult; Lewis and Shanice were underage. White and Lewis testified that they arrived about 2:00 a.m. and parked in a lot on Western and sat in the car for about five or 10 minutes smoking a marijuana cigarette. Someone next to the car window told White that there were “60s” inside the Club, which Lewis understood to mean a gang. King Lou called Lewis on the phone, and they agreed to meet at the Club.
They got out and went towards the Club, and White saw Nakia Whitman parked in her car. White also saw defendant, who was wearing an orange shirt, run towards Whitman’s car and then return to the street corner.
When White, Lewis and Shanice went into the Club, Defendant was inside the Club talking to some males. The three left the Club, and Lewis saw King Lou talking to someone. White and Lewis heard some arguing coming from the corner of Western and 88th; White heard cursing and somebody said “fu-- 60.” White could not see any faces, nor could she tell who had yelled “fu-- 60.” There were a lot of people standing around; Lewis saw about four unknown males talking to King Lou. White saw King Lou and defendant engaged in a fist fight. Defendant hit King Lou’s head on the cement. King Lou got up and started walking towards his car.
White and Lewis heard gunshots. Defendant ran towards Whitman’s car on the passenger side and the car drove off. White did not see a gun, nor did she see anyone fire a gun. Lewis did not see who pulled out the gun, but she could see it, and the person holding it was shooting at King Lou. Lewis saw King Lou fall face first near Whitman’s car. Lewis saw defendant jump out of Whitman’s car and shoot King Lou while he was lying on the ground.
Lewis, White and Shanice ran to their van and crouched inside. Lewis testified she could see the shooting from inside their van, and saw defendant shoot the victim from about four feet away. White drove the car over next to where King Lou was lying on the ground. White called 911, and waited for the police to come, but when they arrived she left and did not speak to them about what had happened because Lewis and Shanice were underage. White did not want to be a “snitch,” because in her neighborhood she would be subject to retaliation if she spoke to the police. Later, however, she did tell police what she had seen.
Quanisha Rachal testified she went to the Club with defendant and Whitman. They parked behind the Club and sat in the car and talked for about 30 minutes. Defendant got out and left; Rachal and Whitman remained in the car talking for another 20 minutes. They went into the Club and saw Keitarock, who belonged to the 60s gang. Rachal went to get some cigarettes at a gas station; when she returned to the Club she and Whitman noticed that defendant was talking to some girls across the street. Whitman grabbed defendant and pulled him away. Defendant mentioned that something was going to happen to Keitarock when he came out of the Club.
King Lou arrived, parked his car in the parking lot and came over to speak to Rachal and Whitman. He asked if there were any “tramps” there, meaning members of the Eight-Trey gang. Whitman told him that there were “a whole lot up in here.” She asked King Lou to leave, and to call Kietarock to tell him to get out of the Club. King Lou walked off. Defendant came up to them right afterwards, and asked who King Lou was. Whitman told defendant it was “King Lou from the 60s.” Defendant walked away, leaving Rachal and Whitman standing by the car.
Rachal noticed there was a fight going on at the corner of 88th and Western. Rachal heard gunshots come from the location where the fight was taking place, and ran to the car and got in. She saw King Lou running from the fight, with defendant behind him. Defendant stood in the middle of the street and started shooting at King Lou. King Lou dropped to his knees when he got to the sidewalk. Defendant walked up behind him and shot him. King Lou fell face first onto the concrete. Defendant grabbed Whitman and got into Whitman’s car with Rachal and the three of them left. Whitman was driving. Defendant told them they were not after King Lou, but had come to get Keitarock. The next day she saw defendant and Whitman. Whitman took Rachal with her to the police station. Defendant said he was not going to the police station with them, and told them to say that they did not know anything and nothing would happen to them. She was concerned because the case involved gangs, and there were consequences from speaking to the police. Ultimately she identified defendant as the shooter.
2. Forensic and Physical Evidence.
Detective Gregory Stearns of the LAPD works out of the 77th Street Station, where in excess of 85 percent of homicides are gang-related. On November 10, 2004, 10 days after the shooting, he executed search warrants at defendant’s residence and Whitman’s residence. The police recovered a .38 caliber revolver and ammunition and also recovered Federal Hydrashock nine millimeter ammunition from a rear room. They did not find a nine millimeter gun at the house, although an orange jacket was recovered. The .38 revolver found was not the murder weapon.
Detective Stearns interviewed Lewis three days after the shooting and showed her a six-pack, from which she identified defendant. Rachal identified Hashim Cridell from a six-pack.
Stella Chu, a criminalist for the LAPD, examined two bullets, and concluded they were fired from the same .38 or .357 caliber weapon, although they were not fired from the weapon recovered from Whitman’s house. One of the bullets was consistent with the ammunition found at Whitman’s house. Steven Scholtz, forensic pathologist, testified the victim died from multiple gunshot wounds. There were three to four wounds; at least three were caused by separate bullets. Two of the wounds indicated the gun had been fired from the back. The victim’s body indicated he had been hit in the mouth and nose and he had injuries on his hands and knees. The injuries to the face were consistent with the victim being struck with a fist.
3. Expert Gang Testimony.
Officer David Ross and Officer Richard Mendoza of the LAPD testified concerning the Rolling 60s Neighborhood Crips. The Rolling 60s gang has an area that extends from Western Avenue to Hill Avenue and from 52nd Street to 77th Street. The gang’s territory abuts Florence Avenue. The Eight-Trey gang has territory that extends from Florence on the north to Century on the south, Vermont on the east, and Van Ness on the west.
The Rolling 60s are bitter enemies with the Eight-Trey Gang. If a Rolling 60s gang member enters Eight-Trey territory, the Eight-Trey gang would be required to maintain respect and control of their territory by assaulting or killing the enemy gang member. Gang members intimidate the community, are extremely territorial and use graffiti to mark their territory. Eight-Trey graffiti was found on a utility box near the intersection of 88th and Western demonstrating that the gang was active in the area.
Keith Parker, aka Keitarock, is a member of the Rolling 60s and a rapper. If Kietarock had been near the Déjà Blue Club, an Eight-Trey club located near the Motorcycle Club, he would have been recognized, upsetting the Eight-Trey gang.
B. Defense Evidence.
William (Michael) Bell is not a gang member. Although the chronology of events he reported is not always clear, he testified that he was at the crime scene at the time of the shooting. He was initially considered a suspect because of the bloodstains on his shirt. Bell was interviewed by police shortly after the shooting. Bell told the police that although he did not know Cridell, who is also known as “Cripto,” he spoke to Cridell shortly after midnight on October 31, 2004. Cridell told him to stay off the streets because “somebody just got served (shot).” Cridell did not say who did the shooting. Bell denied telling police that Cridell had told him he had “served” someone. Bell identified Cridell from some photographs the police showed to him. At the time of the shooting, Bell had not slept for four or five days due to drug use. Bell told the police that Cridell had admitted to the shooting because Bell thought the police would pin it on him.
Detective Thomas Mathews interviewed Bell at the crime scene. Bell told him Cripto was a “90s Dude,” meaning a member of the Rolling 90s gang. Bell told Detective Mathews that Cridell had told him that Cridell had “served” somebody on 88th Street, which Bell told Detective Matthews he thought meant Cridell had shot someone. Bell identified Cripto’s photograph.
Detective Stearns interviewed Bell about a month after the shooting. Bell told him that as he was leaving the house early in the morning on October 31, 2004, Cridell came in and told him to be careful on the streets because “somebody just got served.” Lewis had identified Cripto from a photograph as one who looked most like the shooter, as had Rachal, although Rachal had not told him Cripto was at the scene.
Although Detective Mathews believed that members of the Rolling 90s would not frequent the area near the Motorcycle Club, such a gang member might venture into the territory for purposes of retaliation. Initially Detective Stearns took Cridell’s comment to be about the King Lou shooting. Lewis identified Cripto as being at the scene of the shooting, but did not say he was involved.
Detective Mendoza testified that Cridell is a member of the Rolling 90s Crips, and his moniker is Cripto. The Rolling 90s are aligned with the Rolling 60s; both gangs are Crip gangs. Based upon his experience, Detective Mendoza had never come across the situation where a Rolling 90 and an Eight-Trey got together to kill a Rolling 60s gang member; Rolling 90s and Eight-Treys were enemies. However, a person who was a member of the Rolling 90s gang would want to warn people to stay away from the area of a shooting immediately afterwards. Detective Mendoza hypothesized that if a Rolling 90s gang member learned of the homicide at 88th and Western, which the gang member knew to be an Eight-Trey neighborhood, they would be expecting a retaliatory killing of an Eight-Trey gang member. Therefore, the Rolling 90s member would warn off fellow gang members.
The jury found defendant was guilty of first degree murder, and found true firearm and gang allegations. (§§ 186.22, subd. (b)(1)(A); 12022.53, subds. (b), (c), (d)). The trial court sentenced defendant to 25 years to life on the murder conviction, and a consecutive sentence of 25 years to life on the firearm enhancement.
DETECTIVE MENDOZA’S TESTIMONY DID NOT AMOUNT TO
EXPERT OPINION THAT A THIRD PARTY WAS INNOCENT
Defendant’s defense was based upon the theory that a third party, Hashim Cridell, actually shot King Lou. In support of this theory, defendant relied upon Cridell’s statements that he had “served” (shot) somebody that night, and the fact that two eyewitnesses had selected Cridell’s photograph as a being a person who resembled the shooter. Defendant argues that Detective Mendoza’s testimony on gang behavior amounted to an expert opinion that Hashim Cridell could not have committed the shooting. Detective Mendoza testified that he (1) had never heard of a member of Cridell’s Rolling 90s gang getting together with an Eight-Trey to shoot a Rolling 60s gang member, and (2) a Rolling 90s would want to warn people to stay out an area where there had been a shooting. Defendant argues the testimony should have been prohibited as it was beyond the scope of expert testimony and amounted to an improper opinion that Cridell had not shot King Lou.
A. Factual Background.
During Detective Mendoza’s testimony, the prosecution inquired whether Detective Mendoza had heard of a Rolling 90 going to 88th and Western to kill a Rolling 60. Detective Mendoza responded, “Based on my experience . . . I have never heard of a Rolling 90 and an 8-Trey gang member getting together to kill – getting together to kill a [Rolling] 60.  Like I mentioned before, the 8-Trey gangsters are mortal enemies with the Rolling 90[ ]s and the Rolling 60[s] neighborhood Crips.” Defendant did not object to this testimony.
The prosecution then asked “Is there a reason why an individual who witnessed – say an individual witnessed a shooting at the corner of 88th and Western, and let’s say that person is a Rolling 90[ ]s. Is there any reason why that person might want to warn people that they know frequent that area to stay out of that area in the time immediately after the shooting?” The defense objected, and the following colloquy was held:
THE COURT: “Let me ask you, I understand it’s a hypothetical drawn from the facts in this case, but is it really something that would be part of his expertise?”
THE PEOPLE: “Yeah, it would, Your Honor, because it goes to the issue of retaliation and what might be expected. If a gang member was killed in that area, there might be some kind of retaliation, and that might be why this particular person might want to warn people to stay out of that area, because of the possible retaliation.”
THE COURT: “Now – and I expect that’s the answer you expect him to give?”
THE PEOPLE: “Yes.”
THE COURT: “Go ahead.”
DEFENSE COUNSEL: “Well, if Mr. Bell was a Rolling 60 or a gang member, that might be something for him to consider, but [he is] just saying, in his opinion, he shouldn’t go there because there’s been a shooting isn’t saying there’s going to be retaliation or that there’s still people out there firing [and] shooting.  You’re jumping to speculation as to what was going on. Cripto, when he supposedly made the statement to Mr. Bell --”
THE COURT: “I tell you what. I will overrule the objection. You can ask the question. You can cross-examine on it.”
The prosecution resumed questioning, inquiring whether Detective Mendoza knew of any reason “why a Rolling 90 would want to warn people to stay out of the area of 88th and Western immediately after a shooting? . . .” Detective Mendoza responded that “[I]f I am a member of the Rolling 90[ ]s, and I am aware that a homicide had just occurred on 88th and Western, and I know that area to be 8-Trey gangster or an 8-Trey gangster Crip neighborhood, and I am their mortal enemies, it’s common in the gang culture that a retaliation shooting is going to occur.  I am assuming that [at] 88th and Western, somebody got killed, that’s probably an 8-Trey gang member that just got murdered, I am an enemy of the 8-Trey gang members, I know that retaliation is imminent, something’s going to happen, it’s common that, after these the particular gang gets victimized, they are going to retaliate on their rivals, I am going to warn everybody that I know, my fellow gang members, and different people in the area, ‘Hey, you need to stay off the street because everything’s not right right now.”
Evidence Code section 801 provides in relevant part: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:  (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; . . .” An expert witness is “one who has special knowledge, skill, experience, training or education sufficient to qualify as an expert on the subject to which his or her testimony relates.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
However, a witness may not express an opinion as to the defendant’s guilt or innocence. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) This is not, as commonly asserted, because guilt is the ultimate issue of fact, because opinion testimony often goes to the ultimate issue in the case. (Id. at p. 47.) Rather, the rule is premised upon the belief that a witness’s opinion regarding the guilt or innocence of a defendant is of no assistance to the trier of fact. The “trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (Ibid.)
We review a claim that an expert’s opinion was erroneously admitted for abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627.)
Here, contrary to defendant’s assertion, the expert testimony did not express an opinion of defendant’s guilt. Detective Mendoza expressed two opinions: that a Rolling 90s who had witnessed a shooting would warn fellow gang members to stay out of the area; and that a Rolling 90s would not cooperate with an Eight-Trey to shoot a Rolling 60s member. Defendant’s contention that this amounted to an opinion that Cridell’s statement was a warning, rather than an admission he had shot King Lou is without merit. Rather, the testimony provided information to the jury by explaining a likely basis for Cridell’s ambiguous statement and a hypothesis as to whether Cridell might have been at the scene of the shooting based on the relevant gang territorial rules. Detective Mendoza’s two opinions, taken together, do not necessarily compel the conclusion defendant suggests, but permit an inference that Cridell was warning of, rather than confessing to, the shooting. As such, the evidence was evidence the jury could use to determine whether the third party, Cridell, a member of the Rolling 90s, would shoot King Lou, a member of the Rolling 60s, in Eight-Trey gang territory. The evidence therefore did not directly address defendant’s innocence or guilt.
In any event, even if the trial court erroneously admitted the evidence, the error was harmless. An improperly admitted expert opinion does not result in a reversal if it is not reasonably probable the jury would have arrived at a different result had the opinion not been admitted. (People v. McFarland (2000) 78 Cal.App.4th 489, 496.) Two eyewitnesses testified they saw defendant shoot King Lou. On the other hand, the evidence concerning Cridell’s statement that somebody got “served” or that Cridell did the shooting on 88th Street was ambiguous and contradictory. Thus, it is not reasonably likely without the challenged evidence that the result at trial would have been different.
The judgment of the superior court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JOHNSON, Acting P. J. WOODS, J.