Filed 2/19/15 P. v. Riley CA4/1
Opinion following remand from U.S. Supreme Court
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D059840

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD226240)

DAVID LEON RILEY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Laura W.

Halgren, Judge, after remand from the United States Supreme Court. Judgment affirmed.

         Patrick Morgan Ford for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Holly D. Wilkens and Christine Levingston Bergman, Deputy Attorneys General, for

Plaintiff and Respondent.
       A jury convicted defendant David Riley of numerous offenses and, on appeal from

that conviction, this court rejected each of his claims of error and affirmed the judgment.

(People v. Riley (Feb. 8, 2013) D059840) [nonpub. opn.] (Riley I).) In rejecting one of

Riley's claims of error, this court followed People v. Diaz (2011) 51 Cal.4th 84 and held

the trial court did not err when it denied Riley's motion to suppress evidence obtained

from a warrantless search of the contents of his cell phone seized when he was arrested.

However, in Riley v. California (2014) 231 U.S. 1446, the United States Supreme Court

held a warrant is generally required before searching a cell phone even when the cell

phone is seized incident to arrest (id. at p. 2493), effectively overruling Diaz (see People

v. Buza (Dec. 3, 2014, A125542) ___ Cal.App.4th ___ [2014 WL 6807723]), reversed the

judgment in Riley I and remanded the case for further proceedings not inconsistent with

its opinion.

       Riley was convicted of one count of shooting at an occupied vehicle (Pen. Code,

§ 246, count 1), one count of attempted murder (id. at §§ 664/187, subd. (a), count 2) and

one count of assault with a semi-automatic firearm (id. at § 245, subd. (b), count 3).

Numerous enhancements appended to those counts were found true, including two

firearm enhancements (under Pen. Code, § 12022.53, subds. (b) & (e)(1)) in connection

with count 2, that he personally used a firearm (within the meaning of Pen. Code,

§ 12022.5, subd. (a)) in connection with count 3, and (as to each count) that he committed

the offenses for the benefit of a criminal street gang within the meaning of Penal Code

section 186.22, subdivision (b).


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       On remand, Riley asserts his convictions must be reversed in their entirety

because, considering all of the evidence properly admitted at trial, the erroneous

admission of three photographs taken from his cell phone cannot be deemed harmless

beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman).

The People argue that because the three photographs were cumulative of other properly

admitted evidence, the erroneous admission of those photographs was harmless beyond a

reasonable doubt.

       The People also argue the photographs could properly have been admitted under

the so-called "good faith" exception articulated in Davis v. U.S. (2011) ___ U.S. ___ [131

S.Ct. 2419], which held that "when the police conduct a search in compliance with

binding precedent that is later overruled[,] . . . suppression would do nothing to deter

police misconduct in these circumstances, and because it would come at a high cost to

both the truth and the public safety, . . . searches conducted in objectively reasonable

reliance on binding appellate precedent are not subject to the exclusionary rule." (Id. at

pp. 2423-2424.) Riley responds that because there was no binding appellate precedent

permitting cell phone searches incident to an arrest, but was instead merely a split of

authority at the time of this search (see generally U.S. v. Clark (E.D.Tenn., 2014) 29

F.Supp.3d 1131, 1142-1143, discussing split of authority), the good faith exception does

not apply. There is substantial uncertainty over whether Davis's "good faith" exception

will apply to pre-Riley cell phone searches (see, e.g., U.S. v. Garcia (N.D.Cal., Sept. 12,

2014, No. 13–cr–00601–JST–1) ___ F.Supp.3d ___ [2014 WL 4543163] ["[o]bviously,


                                              3
given how recently Riley was decided, few courts have had an opportunity to continue the

interplay between Riley and Davis" but concluding Davis "preclud[es] the suppression of

cellphone searches conducted before Riley was decided"]), but because we conclude the

admission of the evidence was harmless, it is unnecessary to determine whether Davis's

"good faith" exception applies to pre-Riley cell phone searches.

                                             I

                                THE TRIAL EVIDENCE1

       A. Prosecution Evidence

       The Gang Evidence

       The prosecution introduced evidence that Riley belonged to the Lincoln Park

gang. The prosecution's gang expert, Detective Barnes, testified he was familiar with that

gang. Among the symbols for the Lincoln Park gang is the letter "L," the numeral "5-0"

or "50," and the color green. Barnes concluded Riley was a Lincoln Park gang member

because Riley had been contacted on 12 different occasions in the presence of other

Lincoln Park gang members, had been seen at least three different times wearing gang

clothing (a green bandana), has a gang moniker of "Dave Bo," and was seen by Barnes in




1       We recite the pertinent trial evidence because "Chapman mandates consideration
of the entire record prior to reversing a conviction for constitutional errors that may be
harmless . . . ." (U.S. v. Hasting (1983) 461 U.S. 499, 509, fn. 7; see also Delaware v.
Van Arsdall (1986) 475 U.S. 673, 681 ["an otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt"].)

                                             4
several photographs throwing gang signs with other known Lincoln Park gang members.2

Also, Riley's moniker of "Dave Bo" was lettered onto the headrest of the Oldsmobile

registered to him. Riley also employed slang commonly associated with Lincoln Park

gang members.3 The expert also testified the photographs obtained from Riley's cell

phone showed Riley throwing gang signs common to Lincoln Park gang members.

       The Shooting

       Around 2:30 p.m. on August 2, 2009, Riley's Oldsmobile was parked in front of

the Urias family home near an intersection in the Skyline neighborhood of San Diego.

Riley's girlfriend, Jazmin McKinnie (who lived down the street from the Uriases), was

standing and talking with three men near Riley's car. (Riley I, supra, D059840, at p. 2.)

       Mr. Webster (a member of a rival gang), drove his car through the intersection.

The three men standing near Riley's car fired numerous gunshots at Webster's car.

Webster's car crashed into something. The shooters got into Riley's Oldsmobile and

drove away. Numerous shell casings from at least two different guns (a .40 caliber

handgun and a .45 caliber handgun) were found at the scene. Police found Riley's

Oldsmobile the next day in a Lincoln Park gang area. It was almost completely hidden

under a car cover. The three eyewitnesses to the shooting declined to give a positive


2      It appears these were photographs other than the three photographs seized from
Riley's cell phone.
3      During a jailhouse phone call recorded by police, Riley used the term "bool," a
term used by gangs aligned with the Blood sect that means "cool" but, because the rival
Crips gangs use the term "cool," Blood members replace the letter "c" with the letter "b"
when employing that term.

                                             5
identification of Riley as one of the shooters, although one of those witnesses said Riley

could have been one of the shooters. (Riley I, supra, D059840, at pp. 2-3.)

       Two eyewitnesses told an officer that one of the men was a black male between 20

and 30 years old, with a height of 5'10" and a thin build weighing between 150 and 160

pounds, and the parties stipulated that on the day of the shooting Riley was 5'11" and 150

pounds. However, one witness admitted she testified at a preliminary hearing that Riley

was not the man she saw, but then at trial explained Riley could have been the man she

saw. The other eyewitness was unable to identify Riley when shown a photographic

lineup shortly after the shooting. A Mr. Haddock was identified as being involved based

on a positive identification from an eyewitness, and another man belonging to Riley's

gang (Mr. Haynes) was tied to the shooting by DNA evidence found on the gun used in

the shooting. (Riley I, supra, D059840, at p. 3, fn. 4.)

       The Stop and Search

       On August 22, 2009, Riley was driving his other car (a Lexus) when he was

stopped by police. A search of the car found a .40 caliber handgun and a .45 caliber

handgun hidden in a sock inside the engine compartment. Ballistics testing confirmed

these two weapons were used in shooting at Webster's car. DNA testing confirmed Riley

and two other men were possible contributors for the samples taken from one of the

handguns, and Haynes and two other men were possible contributors to the sample taken

from the other handgun. (Riley I, supra, D059840, at p. 3.)




                                              6
       Riley was arrested as a result of this stop and police seized his cell phone. Cell

phone records showed Riley's phone was used near the place of the shooting at around

the time of the shooting, and was used about 30 minutes later near the location where

police found Riley's Oldsmobile hidden under the car cover. (Riley I, supra, D059840, at

pp. 3-4.)

       Riley's Jailhouse Statements

       While in jail, Riley made several phone calls, recordings of which were played for

the jury. In an August 24, 2009, telephone call, Riley asked the other person (an

unidentified female) "what exactly did my charges say?" When she responded there were

"gun charges," he asked, "But did it have--did it have any shooting stuff? It just had gun

charges[,] right?"4 When she told Riley it was limited to gun charges and driving

without a license, he asked, "No type of shooting or any . . ." and she replied, "it had

some other stuff. I don't know what it means though," and Riley stated, "it would say like

attempted something or something like that." In another phone call two days later, he

mentioned "like no way that that shit is, it's gonna come back to me like no matter what,

the ballistics, it's gonna show . . . ." In another call that day, he told McKinnie his "main

focus" was getting bailed out and "[t]he reason why I'm trying to get bailed out is because

I know what they got and I know what's [going to] hit eventually." During that same call,


4       Shortly after Riley was arrested, he invoked his right to an attorney and told the
detective he would not speak about the case, although Riley did want to talk about getting
his car out of impound. At one point during the conversation, Riley stated " 'detective,
you know I would have talked to you if I knew it was only about the guns.' "

                                              7
after telling her he was "trying to hit third world countries . . . [bec]ause I'm trying to get,

really," Riley stated, "I'm waiting for these . . . mother fuckin' whoopties[5] to come back

. . . and it's a rap, so before then, I'm trying to be 5000, 50, 50 world states up out [of] this

mother fucker though." (Riley I, supra, D059840, at p. 4.)

       B. Defense Evidence

       The defense introduced testimony that a Mr. Redford looked similar to Riley, but

the police never showed Redford's picture to the witnesses, even though Redford's DNA

was on one of the guns seized by police. Although Riley's DNA was found on one of the

guns, his fingerprints were not found on any of the cartridges or on the clip. The defense

also showed Riley regularly loaned his Oldsmobile to other people.

                                               II

                                         ANALYSIS

       A. Applicable Standard

       When, as here, evidence is admitted that was the product of a Fourth Amendment

violation, the proper test for whether the error was harmless is Chapman. (People v.

Howard (1987) 190 Cal.App.3d 41, 45.) "The beyond-a-reasonable-doubt standard of

Chapman 'requir[es] the beneficiary of a [federal] constitutional error to prove beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained.'

[Quoting Chapman, supra, 386 U.S. at p. 24.] 'To say that an error did not contribute to

the ensuing verdict is . . . to find that error unimportant in relation to everything else the

5     McKinnie testified a "whooptiwopper" or "whooptiwham" is slang that can mean a
gun. (Riley I, supra, D059840, at p. 4, fn. 6.)
                                               8
jury considered on the issue in question, as revealed in the record.' [Quoting Yates v.

Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire

(1991) 502 U.S. 62, 73, fn. 4.] Thus, the focus is what the jury actually decided and

whether the error might have tainted its decision. That is to say, the issue is 'whether the

. . . verdict actually rendered in this trial was surely unattributable to the error.' [Quoting

Sullivan v. Louisiana (1993) 508 U.S. 275, 279.]" (People v. Neal (2003) 31 Cal.4th 63,

86.) As the high court explained in Yates, at p. 403: "To say that an error did not

'contribute' to the ensuing verdict is not, of course, to say that the jury was totally

unaware of that feature of the trial later held to have been erroneous. . . . [¶] To say that

an error did not contribute to the verdict is, rather, to find that error unimportant in

relation to everything else the jury considered on the issue in question, as revealed in the

record."

       B. Analysis

       The evidence here, although circumstantial, tied Riley to the shootings in

numerous ways: he was the registered owner of the Oldsmobile observed near his

girlfriend's house at the time of the shooting, and his girlfriend was talking to three men

(one of whom was described by witnesses as consistent with Riley's description) who

fired the shots at Webster. Moreover, although a defense witness stated Riley often

loaned the car to other people, Riley's cell phone usage records showed his cell phone

was also near the place of the shooting around the time of the shooting, and was further

used about 30 minutes later near the location where police found Riley's Oldsmobile.


                                               9
Additionally, while the car used in the shooting was apparently abandoned quickly after

the shooting, the guns used in the shooting were not similarly abandoned, but were

instead found hidden in another of Riley's cars three weeks later with Riley's DNA on one

of them. Finally, Riley's jailhouse phone calls and statements shortly after he was

arrested showed he was more concerned about being charged in connection with the

shooting (with "attempted something") than being charged with "just . . . gun charges,"

and suggested he knew those guns would ultimately be linked by ballistics to the

shooting.

       There was also substantial evidence from a gang expert who testified the shooting

was gang related (because the victim was a member of a rival gang to the Lincoln Park

gang) and who further testified (based on sources of information other than the three

tainted photographs introduced at trial) Riley was a Lincoln Park gang member. We

must evaluate whether admission of the three photographs, which were largely

duplicative of each other and merely showed Riley and another gang member throwing

gang signs, was "unimportant in relation to everything else the jury considered on the

issue in question, as revealed in the record." (Yates v. Evatt, supra, 500 U.S. at p. 403.)

The fact the photographs showed Riley in front of the Oldsmobile was certainly

unimportant based on the undisputed evidence that Riley owned the Oldsmobile. The

fact the photographs showed Riley throwing gang signs was also unimportant because it

merely provided visual verification of one of the bases for the expert's opinion about

Riley's membership in the Lincoln Park gang (i.e. that Riley had been depicted in several


                                             10
photographs throwing gang signs) and had no confirmatory value for any of the myriad

other bases for the expert's opinion about Riley's membership in the Lincoln Park gang:

Riley's numerous contacts in the company of other gang members, Riley's sporting of

gang clothing, his adoption of a gang moniker and imprinting that moniker on his car's

headrest, and Riley's use of gang-specific slang. The photographs (in addition to being

duplicative of other photographs the expert had seen depicting the same behavior) were

but a single string in the bow of the expert's opinion, and we therefore conclude the

photographs were "unimportant in relation to everything else the jury considered on the

issue" of Riley's gang membership, and were even less important "in relation to

everything else the jury considered on the issue in question": whether Riley was one of

the shooters.

       Riley argues the erroneous admission of the photographs cannot be deemed

harmless beyond a reasonable doubt because the prosecution relied on circumstantial

evidence, and gang evidence is so inflammatory that its admission cannot be deemed

unimportant in relation to everything else the jury considered on the issue in question.

Certainly, the courts have acknowledged that gang evidence involves such "opprobrious

implications" (People v. Perez (1981) 114 Cal.App.3d 470, 479) that it should be

admitted with caution and should not be admitted when only tangentially relevant to the

charged offenses (People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on other

grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22) because it creates a risk

the jury will improperly infer the defendant has a criminal disposition and is therefore


                                            11
guilty of the charged offense. (People v. Carter (2003) 30 Cal.4th 1166, 1194.)

However, the issue is not whether the admission of gang evidence with its attendant

inflammatory consequences on the jury was harmless error (see, e.g., Carter, at p. 1194

[although gang membership creates risk of improper inference of criminal disposition and

"thus should be carefully scrutinized by trial courts . . . such evidence is admissible when

relevant to prove identity or motive"]), but is instead whether it was harmless error to

admit this specific cumulative evidence of gang conduct. We are confident the

photographs had such a de minimus incremental inflammatory impact that their

erroneous admission was unimportant in relation to everything else the jury considered

on the issue in question and therefore was harmless beyond a reasonable doubt.

                                      DISPOSITION

       The judgment is affirmed.




                                                                           McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


McINTYRE, J.




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