People v. Harper CA4/2
E057649
Cal. Ct. App.Jan 16, 2015Background
- Defendant Walter Lee Harper Jr. was convicted by a jury of attempted premeditated murder (with great-bodily-injury firearm enhancement), possession of firearms/ammunition/destructive device as an ex-felon, and active participation in a criminal street gang; gang enhancements were found true for the attempted murder and firearm counts.
- The shooting victim (an Evans Street member) testified he was shot from a small white truck on Evans Street turf on June 25, 2010; he later identified Harper from a photo and at trial as the shooter.
- Prosecution presented gang-context evidence: neighborhood gang conflict after the killing of a 2800 Blocc Crips member (Howard), testimony from a longtime Riverside officer, a prosecution gang expert, recorded jail phone calls, jail-cell graffiti, and Harper’s booking admissions/tattoos.
- Evidence linking Harper to guns/munitions/destructive device was found in a Hill Street residence where his girlfriend lived; Harper’s DNA could not be excluded from the firearms and other indicia (photos, Steelers items, gifts labeled to "Walt") supported his association with the home.
- Defense challenged admission of various gang-related evidence (booking admissions, jail call, graffiti, expert reliance), and later argued insufficiency of evidence for gang-based offenses and for possession convictions; the trial court admitted the contested evidence and Harper was sentenced to indeterminate and determinate terms.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Harper) | Held |
|---|---|---|---|
| Admissibility of gang evidence and expert reliance | Evidence and expert testimony were properly admitted; expert may rely on police reports, booking admissions, conversations and other reliable sources to form opinion about gang activity and membership | Admission of extensive gang evidence (booking statements, jail call, graffiti, prior conviction, tattoos) lacked foundation, was hearsay, unduly prejudicial, and violated confrontation rights | Trial court did not abuse discretion; most objections were not timely/precise and many issues were waived; expert reliance on such materials is permissible under state precedent and evidence was admissible for limited purposes (e.g., motive, intent, foundation for expert opinion) |
| Confrontation Clause challenge to expert’s hearsay bases | No separate federal constitutional error preserved below; state law permits experts to rely on hearsay materials | Admission of testimonial hearsay to an expert violated right to confrontation | Waived and rejected; court follows controlling California precedent allowing expert reliance; preserved only for federal review if sought |
| Sufficiency of evidence for active participation in a criminal street gang (and gang enhancement to attempted murder) | Circumstantial and expert-supported evidence (motive from inter-gang retaliation, jail call planning/coordination, visibility of 2800 in enemy turf, victim’s ID and statements) supports finding that shooting was gang-related and that at least two gang members participated | Insufficient proof that shooting was gang related or that a second gang member was involved (passenger’s gang status unclear); expert opinion unsupported | Evidence sufficient: jury could infer passenger was fellow 2800 member from conduct and expert testimony; evidence beyond pure opinion supported gang-related motive and enhancements |
| Sufficiency of evidence for possession of firearms/ammunition/destructive device | Items were found in residence where Harper lived/visited; personal effects and photos in the home, girlfriend’s admissions about Harper living there, and DNA links to firearms supply circumstantial proof of access/control | No evidence Harper had access or dominion over the Hill Street residence or the contraband | Evidence sufficient: testimony of neighbor/girlfriend/friend, items bearing Harper’s name, presence of photos and DNA gave reasonable circumstantial proof of access and control |
Key Cases Cited
- People v. Bryant, Smith and Wheeler, 60 Cal.4th 335 (2014) (treatment of expert reliance on out-of-court materials and preservation of related confrontation claims)
- People v. Rodriguez, 55 Cal.4th 1125 (2012) (active participation under § 186.22 requires the underlying felony be committed by at least two gang members)
- People v. Rundle, 43 Cal.4th 76 (2008) (standards for foundational showings for proffered evidence)
- People v. Gomez, 192 Cal.App.4th 609 (2011) (treatment of booking admissions and Miranda-related issues)
- People v. Cudjo, 6 Cal.4th 585 (1993) (state evidentiary error does not inherently equal federal due process violation)
- Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450 (1962) (standards for judicial notice and appellate review)
- People v. Doolin, 45 Cal.4th 390 (2009) (discussing limitations and disapproval of prior authority on other grounds)
- People v. Ferraez, 112 Cal.App.4th 925 (2003) (expert opinion plus corroborating evidence can support gang-relatedness)
- People v. Ramon, 175 Cal.App.4th 843 (2009) (expert opinion unsupported by facts is insufficient to prove gang enhancement)
- In re Frank S., 141 Cal.App.4th 1192 (2006) (expert opinion alone insufficient to prove gang-related purpose for possession)
Disposition: Judgment affirmed except for clerical corrections to minutes and abstracts of judgment as directed by the court.