Menifee v. Superior Court of Santa Clara Cnty.

57 Cal.App.5th 343

271 Cal.Rptr.3d 354

Charles MENIFEE III, Petitioner,

v.The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent;

The People, Real Party in Interest.

H047473

Court of Appeal, Sixth District, California.

Filed November 13, 2020

As Modified November 17, 2020

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence Senior, Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Gerald A. Engler, Deputy Attorney General, for Real Party In Interest The People.

Under appointment by the Court of Appeal, Kendall D. Wasley, Davis, Stuart D. Kirchick, San Jose, for Petitioner Charles Menifee III

No appearance for respondent.

Premo, Acting P.J. Petitioner Charles Menifee seeks extraordinary writ relief from the trial court's order denying his Penal Code section 995¹ motion to dismiss gang enhancements and a gang participation charge pursuant to People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ).

For the reasons explained below, while we agree that certain components of the gang expert's testimony were inadmissible under Sanchez , the remaining admissible evidence presented at the preliminary hearing was sufficient to hold Menifee to answer on the gang enhancement allegations and substantive gang participation charge. We will therefore deny the petition for writ of mandate and/or prohibition.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The information

Menifee and his codefendants were charged by information filed on or about April 21, 2014, with offenses arising out of a home invasion robbery which occurred on September 12, 2013. Menifee and the others were charged with first-degree robbery within an inhabited place acting in concert (§§ 211, 213, subd. (a)(l)(A); count 1); attempted first-degree robbery within an inhabited place acting in concert (§§ 664, 211, 213, subd. (a)(l)(A); count 2); first-degree burglary (§§ 459, 460, subd. (a); count 3); first-degree robbery within an inhabited place (§§ 211, 212.5, subd. (a); count 4); attempted robbery of an inhabited building (§§ 664, 211, 212.5; count 5); and active participation in a criminal street gang (§ 186.22, subd. (a); count 8).² The information further alleged firearm and gang enhancements in connection with counts 1 through 5. (§§ 12022.53, subds. (b), (e)(1), 186.22, subd. (b)(1)(C).)

B. Preliminary hearing testimony

On September 12, 2013, at around 11:19 a.m., Santa Clara County Sheriff's Deputy Russell Lopez was patrolling in east San Jose when he received a dispatch call about an "in-progress residential burglary." Lopez just happened to be within 50 yards of the address where the burglary was occurring, so he arrived quickly. Lopez parked his vehicle and he could hear "noises" and "yelling" coming from the reported address. He saw a black male, later identified as Randall Taylor, walk out the front door holding "household electronics[,] ... [p]ossibly DVD players or laptops." Lopez could see "several other" black males behind the man, but not well enough to describe them. Lopez, who had his weapon drawn, yelled at Taylor to show his hands or put his hands up. Taylor froze, said something like " ‘Oh, shit,’ " then went back into the house, pushing the men behind him back inside as well before closing the door.

Within 20 seconds, the door reopened, and two women and a child came outside. One of the women called out that they had been robbed and that the men had firearms. Lopez, who was alone, had the women and the child lie down on the ground with their hands out. He could hear noises coming from behind the house "consistent with people jumping fences" and he could see the wooden fence between the houses shaking. Lopez then saw several black males running along the rooftops of the houses behind the victims' home. Once other officers arrived, they set up a perimeter and cleared the victims' home.

Lopez took a statement from one of the residents, A.M., who reported she lived at the house along with several other people. Earlier that day, A.M. was in her bathroom when she saw a black man climb through her bedroom window. The man was armed with a black handgun, which he pointed at her midsection and asked, " ‘Where's your money?’ " Another three or four men came through the window, one of whom may have also been armed, and began searching her room. The men left her bedroom, going into the living room, so A.M. locked her bedroom door behind them. One of the men came back and broke her door open. He had a gun and again asked her where her money and her wallet were before grabbing her by the arm and dragging her into the living room. Another woman, M.O., was in the living room already, along with one of her two grandchildren.

Santa Clara County Sheriff's Deputy Mark Daigre responded to the scene, along with his training officer, approximately 40 minutes after the initial dispatch. Daigre took a statement from M.O., who told him she was at the residence babysitting her two grandchildren. The youngest was sleeping in a back bedroom and M.O. was sitting in the living room with the oldest child when she heard "loud noises ... coming from the kitchen area." When she looked toward the kitchen, she "saw a black male holding a gun." The man said, " ‘I want all of your money and drugs. Where is [sic ] all the drugs?’ " M.O. saw "approximately four other black males emerge from the kitchen area."

The men began searching the residence and M.O. saw them break down the door to A.M.'s bedroom. They pulled A.M. into the living room. M.O. said the men grabbed three potted marijuana plants and headed out the front door. She heard one of them say " ‘Shit,’ " and the men ran back inside the house then out the back. M.O. grabbed her grandchild and ran out the front door. Within an hour or so of the incident, M.O. identified Menifee in a field identification as one of the men who robbed the house.

C. Gang expert testimony

San Francisco Police Sergeant Derrick Jackson testified as an expert on San Francisco criminal street gangs in general, and specifically as an expert on a gang known as Double Rock. Jackson first documented Double Rock as a criminal street gang in 2004 and 2005, based on members' use of a common hand sign, as well as graffiti and posts on social media. Double Rock's principal territory in San Francisco is centered on the Alice Griffith Housing Developments but extended into surrounding neighborhoods to the north, east, and south as well.

As of September 12, 2013, Double Rock had between 50 and 100 members and associates. In addition to certain unique hand signs, Double Rock members will get tattoos which "spell out the word ‘Rock,’ ‘Rock Solid,’ ‘2 Rock’ [or] ‘Double Rock.’ " Double Rock does not have written rules or a formal leadership structure, and its members do not pay taxes or are otherwise required to share the proceeds of their crimes with the gang as a whole. Members are primarily male and 90 percent of them are black, though the local "Polynesian community there ... are associates of ... Double Rock." According to Jackson, in order to become a member of Double Rock, an individual would have to commit criminal acts, especially predicate crimes, get tattoos that reference Double Rock, and associate with other validated Double Rock gang members.

Jackson testified that the primary criminal activities of Double Rock consist of "burglaries, robberies, auto burglaries, narcotics sales, possession for sales, possession of firearms, possession of firearms by convicted felons, homicides, attempted homicides, witness intimidation, threats" and home invasion robberies. Jackson had previously testified in two cases in which Double Rock gang members committed home invasions.

D. Evidence of predicate offenses

The prosecution introduced into evidence certified copies of documents reflecting prior convictions in five separate San Francisco County Superior Court cases (exhibits 26-30) and Jackson testified regarding each of these offenses.

Exhibit 26 was a certified conviction in San Francisco County Superior Court Case No. 219212. Jackson testified that he had previously reviewed the police report corresponding to this conviction which involved officers responding to an auto burglary on November 11, 2012. In the process of escaping in a van, the suspects collided with a police vehicle and nearly ran over an officer who was on foot. In the ensuing investigation, Jackson reviewed video surveillance of the incident and identified Anthony Mims as the driver of the van. Jackson opined that Mims was a Double Rock gang member at the time of that offense.

Exhibit 27 was a certified conviction in San Francisco County Superior Court Case No. 204557. Jackson again testified he had reviewed the police report prepared in connection with this conviction. According to that report, on December 20, 2007, plainclothes officers observed what appeared to be an armed robbery. In pursuing one of the individuals involved, subsequently identified as William Jones, the officers saw him drop a revolver on the ground. Jackson opined that Jones was a member of Double Rock at the time of this offense.

Exhibit 28 was a certified conviction in San Francisco County Superior Court Case No. 212437. Jackson testified about the underlying offense based on his review of the police report associated with the case. In that incident, on January 4, 2010, officers responded to a report of a burglary in progress at a home. Soon after officers arrived at the address, three suspects emerged from the residence. Police ordered the men to stay in place, but one of them, later identified as Paul Bellazain, turned and ran back inside. As an officer gave chase, he saw Bellazain discard what turned out to be a semiautomatic pistol. Jackson opined that Bellazain was a member of Double Rock at the time of that offense.

Exhibit 29 was a certified conviction in San...