APPEAL from judgments of the Superior Court of Yolo County, Timothy L. Fall, Judge. (Super. Ct. No. CRF07-3492)
The opinion of the court was delivered by: Butz, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Reversed in part and affirmed in part.
This case involves one of the most egregious types of juror misconduct. During deliberations, a juror performed an experiment at his home under conditions not subject to judicial oversight or cross-examination. He later reported the result, which was unfavorable to defendant, to his fellow jurors, who were struggling over a crucial issue in the case. The jury subsequently convicted defendant Kyle Jordan Vigil of shooting at an occupied dwelling (Pen. Code, § 246),*fn1 with a true finding that the crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1) (hereafter § 186.22(b)(1)), an enhancement that earned him an indeterminate life sentence (§ 186.22, subd. (b)(4)).
Vigil was the driver of the car that was used to commit the charged crimes. The shooter, co-defendant Joshua Lawrence Latham, was convicted by the same jury of the same offense and enhancement, as well as an additional count of discharging a firearm in a grossly negligent manner (§ 246.3) for the benefit of a criminal street gang (§ 186.22(b)(1)).
Both defendants appeal. With respect to Vigil, we shall reverse the judgment for prejudicial jury misconduct. With respect to Latham, we find no reversible error and shall affirm.
In the late night hours of June 21, 2007, gunshots were fired at two separate residences in Woodland. A witness who lived at 1309 Donnelly Circle saw a white car pass by and heard slurs against the Sureno street gang, followed by gunshots. Subsequently, a bullet was found lodged in a rooftop air conditioner of the witness's apartment building and thirteen .30-caliber shell casings were discovered nearby.
Gunshots were also fired at a house located at 1656 Santoni Lane, where a reputed Sureno gang member resided. Officers discovered seven bullet holes in the walls of the residence. Spray-painted graffiti denigrating a Sureno gang "subset" was discovered in front of the house.
Victor Chaney's Testimony
Victor Chaney was the star witness for the prosecution. Chaney testified that he was a longtime friend of defendants Latham and Vigil, having grown up with them in the same apartment complex in Woodland.
Chaney testified that he and Vigil attended a party at Latham's house on the night in question. After two or three hours of socializing and drinking alcohol Chaney, Latham, Vigil and someone known only as "Chase" went upstairs to Latham's room. Once in the room, the individuals in the group continued to drink alcohol and smoked marijuana. Chaney was "buzzing" from the alcohol. He believed each person drank about the same amount.
At one point, Chaney noticed a rifle inside Latham's closet. Latham took the gun out, brandished it and bragged that he had used it "unlawfully." Chaney took photos of Latham posing with the rifle and "showing it off." Latham made a comment to the effect that he was "ready for war."
Chaney, Latham, Vigil and Chase then walked out of the apartment building together, with Latham carrying the rifle over his shoulder. The group headed towards Latham's car, which was parked outside. When they got to the car, Latham threw Vigil the car keys.
The foursome got into the car. Vigil was the driver, while Latham occupied the passenger seat. Chaney and Chase sat in the back. Before they departed, Latham announced that anyone who was "scared to go to prison" should get out of the car. No one moved.
The group went to the Yolano neighborhood, where Vigil drove into a parking lot. After Vigil stopped the car, Latham got out and discharged five or six rounds from the rifle. Latham appeared to be pointing the gun toward the houses or duplexes, but at an angle "like up in the sky." When he was finished, Latham got back in the car and they drove toward the Bel Air neighborhood. At this point, Chaney caught a glimpse of Vigil's face in the rear-view mirror. Vigil "looked remorseful."
When they arrived in the Bel Air neighborhood, Vigil drove by a certain house and Latham opened fire out of the open passenger window. On this occasion, Latham was shooting "at the house." At the time of the shooting, the car was traveling about five to 10 miles per hour. Chaney put his head down after the first shot, because he knew "we were . . . doing a drive-by." Following the second shooting, Vigil drove back to their apartment complex. Latham put the rifle in the trunk and the group went back to Latham's apartment and smoked some marijuana. About 30 to 35 minutes later, the four went back to the car and were prepared to go out again, when they were stopped by Chaney's father.
There is no indication in the record that Chaney was charged with any crime or that he was offered any special treatment in exchange for his testimony. Chaney stated that he came clean to the police solely because he found out his dad was dying of cancer and he wanted to "be there for him." He denied that anyone intimidated or threatened him, or tried to prevent him from testifying.
Chaney denied that there was any discussion that evening about gangs, a specific objective or a destination during the entire adventure. He did not know how or why the house in the Bel Air district was targeted, although he was aware that the Yolano neighborhood was a reputed gang area occupied by "Southerners."
Detective Ronald Cordova of the Woodland Police Department testified as an expert in criminal street gangs, with special emphasis on Nuestra Familia and the Norteno gang. Cordova had previously been qualified as an expert on both Norteno and Sureno gangs, having spoken to more than 300 Norteno and 100 Sureno gang members, and written at least 25 gang-related search warrants.
Detective Cordova testified that the Norteno and Sureno gangs have been around since the 1960's and are natural rivals. In Woodland, as elsewhere, these gangs have divided up territory, with the Nortenos occupying the north and Surenos the south part of the region. The Nortenos are a validated street gang.
Gang members show their affiliation by colors, letters, numbers, tattoos and music. They also have monikers and use hand signs and graffiti on their personal belongings. There are about 350 validated Norteno gang members in the Woodland area. There are also "associates" who hang around gang members and "veteranos," who are inactive themselves, but mentor younger gang members.
Gang members use fear and intimidation to generate respect from rival gangs and within the community. In the Norteno culture, no act of disrespect can go unanswered. The primary activities of the Nortenos include assaults with deadly weapons, drug dealing, burglaries, and drive-by shootings. Detective Cordova described the factual settings in which Woodland Norteno gang members were convicted of felonies with gang enhancements.
Detective Cordova recounted that several items seized at Vigil's apartment included gang paraphernalia, writings, pictures, and graffiti. In Cordova's opinion, these items were indicative of Vigil's association with the Norteno street gang. In addition, a scrolled kite found in Vigil's possession while in jail contained information that indicated he had been in contact with a member of Nuestra Familia, which is the governing body of the Nortenos.
Detective Cordova also opined that Latham was a validated member of the Norteno gang. Images seized from Latham's computer were indicative of gang affiliation and three rap CD's found in Latham's residence were further indicia of gang membership. Officers also found a red baseball cap in Latham's residence with an "N" logo, which is a symbol of the Nortenos.
It was Detective Cordova's opinion that the shootings at Donnelly Circle and Santoni Lane were both committed for the benefit of the Norteno gang.
Charges, Verdicts and Sentences
Vigil and Latham were each charged with shooting at an inhabited dwelling with a gang enhancement allegation, based on the shootings at Donnelly Circle and Santoni Lane. In addition, each was charged with the substantive crime of active participation in a street gang. The chart below reflects the jury's verdicts:
Shooting at an inhabited dwelling (§ 246) (Donnelly Circle)
Guilty of lesser included offense (§ 246.3--grossly negligent ...