(Super. Ct. No. 05F03986)
The opinion of the court was delivered by: Butz, J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Julius Monterey Robinson was convicted by a jury of two counts of attempted willful, deliberate and premeditated murder (Pen. Code, § 187/664),*fn1 malicious discharge of a firearm at an inhabited dwelling causing great bodily injury (§§ 246, 12022.53, subd. (d) (hereafter § 12022.53(d))) and malicious discharge of a firearm from a motor vehicle causing great bodily injury (§§ 12034, subd. (d) (hereafter § 12034(d)), 12022.53(d)). The jury also found true multiple gun use enhancement allegations and found that all the crimes were committed with specific intent to promote criminal conduct by a street gang. (§ 186.22, subd. (b)(1) (hereafter section 186.22(b)(1)).) After the trial court found prior prison term and prior conviction allegations to be true, defendant was sentenced to an indeterminate term of 205 years to life, plus a determinate term of 17 years.
Defendant appeals these convictions. His assignments of error include vindictive prosecution, improper use of a peremptory challenge, instructional error, insufficiency of the evidence, and sentencing irregularities. We shall modify the sentence and otherwise affirm the judgment.
In March 2005, defendant was a member of the Nogales Crips, a street gang in the Del Paso Heights area of Sacramento. At the time, there was ongoing retaliatory violence between the Nogales Crips and its archrivals, the Del Paso Heights Bloods and Elm Street Bloods.*fn2 A Crip named Shepard Scott had been killed, and Blood member Anthony Weaver was believed to have been responsible for the killing. On two occasions prior to the subject shooting, Weaver had been the target of unsuccessful assassination attempts.
Around 1:00 p.m. on March 26, 2005, Weaver, Corey Yerger, Yerger's uncle Andrea*fn3 Wingfield, and others were hanging out in the garage of Weaver's house on Fell Street in Sacramento.
Except for Wingfield, everyone in the garage was a Blood gang member. Wingfield was standing by the open garage door; other men were shooting dice; Yerger was in the driveway, eating barbecued ribs.
A white, "beat up" Mercedes pulled around the corner and turned onto Fell Street. Someone in the garage yelled, "Here come the Crips" and everyone scattered. As the Mercedes drove by, defendant fired several shots at the garage from the front passenger seat. Yerger yelled that he was "hit" and blood started gushing from his neck. Weaver was shot in the arm. As a result of the shooting, Yerger was paralyzed from the waist down.
There was evidence that a Cadillac carrying two young men pulled out of the Fell Street house immediately after the shooting and started chasing the Mercedes, precipitating a furious gun battle between the occupants of the two cars. Defendant's fingerprints were found on the Mercedes.
After being initially called to the scene of the Fell Street shooting, Sacramento Police Officer Filmore Graham was rerouted by dispatch to a house on Cypress Street. There he located defendant, who was holding his hand over his bleeding right eye. Defendant refused to give any information to Graham or tell him how he was injured.
A gang expert testified that at the time of the shootings, defendant was a validated member of the Nogales Crips, whose rivals were the Del Paso and Elm Street Bloods. The expert opined that Blood member Weaver was the target of the Fell Street shooting, since he was believed to have been responsible for the assassination of noted Crip Shepard Scott. An attempt to kill Weaver at a gas station three days earlier had gone awry. The expert stated his opinion that the shooting was in retaliation for the killing of Scott and was done to benefit and promote the Crips gang.
Deric Tennessee, a former Blood gang member, testified that he was in the garage at the time of the Fell Street shooting. When the Mercedes drove by "all hell broke loose." Tennessee had seen someone in the garage with a gun in his pants but he did not know where the shots were coming from. Tennessee saw Yerger with a gunshot wound to the side of his neck. It was Tennessee's opinion, based on his observations and having been shot himself, that the bullet that caused Yerger's neck wound could not have been fired from the street.
Defendant took the stand and admitted that on the day of the shooting he was associated with the Nogales Crips. He also admitted that Shepard Scott had been a close friend and that he had heard the rumor that Scott had been murdered at the hands of the Bloods.
Defendant also admitted that he was in the front passenger seat of the Mercedes that drove by the Fell Street garage. However, he maintained the purpose of the trip was not to shoot anybody, but to pick up some marijuana.
Defendant testified that, as the Mercedes drove by the Fell Street house, he saw people scattering in the front yard and heard gunshots. His friend "Boo," who was in the back seat said, "those dudes is tripping," which defendant understood to mean the "dudes" were shooting at their car. None of the shots hit the Mercedes.
According to defendant, the Mercedes kept driving to escape the gunfire directed at it. Two men from the house got into a Cadillac and began chasing the Mercedes. The Cadillac eventually pulled in front of the Mercedes and several shots were fired at them. Defendant was hit twice. Boo pulled out a gun and fired back in retaliation. Defendant denied harboring any animosity towards Weaver, Yerger or Wingfield.
I. Vindictive Prosecution
In an elaborately constructed argument, defendant claims that the entire judgment should be reversed because the prosecution added new and more serious charges after defendant exercised his right to self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta). The argument is predicated on the fact that the original complaint charged him with attempted murder, accompanied by gun and gang enhancement allegations. Two years later, promptly after the trial court granted defendant's motion to represent himself, the prosecutor amended the information, adding a premeditation and deliberation allegation to the murder charges and adding a fourth count of discharging a firearm from a motor vehicle (§ 12034(d)). Enlisting his own hearsay remark at a Marsden*fn4 hearing about what his attorney said the prosecutor would do if he did not waive time, defendant accuses the prosecutor of filing the additional charges for the sinister purpose of punishing him for representing himself.
Defendant's argument has been forfeited because he made no objection to the additional charges, nor did he ever move to dismiss them on grounds of vindictive prosecution. (People v. Maury (2003) 30 Cal.4th 342, 439; People v. Edwards (1991) 54 Cal.3d 787, 827.) The record shows that, at the time the amended information was offered, defendant was asked if he had any objection and he replied, "No, sir." Neither defendant nor his subsequently appointed counsel*fn5 ever moved to dismiss the added charges for the reasons he now asserts.
Defendant's claim of vindictive prosecution may not be raised for the first time on appeal. (People v. Lucas (1995) 12 Cal.4th 415, 477, citing People v. Edwards, supra, 54 Cal.3d at p. 827.)
Defendant argues the trial court erred in denying his motion for mistrial based on the prosecutor's use of a peremptory challenge to excuse an African-American juror. (See Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 83] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We disagree.
During voir dire, prospective juror Ms. W., a female African-American, was seated. She stated that her ex-boss was a police officer and that she was a union representative for state workers. Defense counsel asked her if, after the case was concluded, she had a reasonable doubt about defendant's guilt, could she vote not guilty. Ms. W. replied, "I would--I would--if I had doubt, I can't make a decision, I guess, if that answers your question. If I had doubt about something, then I don't feel I could make a firm decision about that." The prosecutor then questioned her about circumstantial evidence. After explaining that both direct and circumstantial evidence were "equal under the eye of the law to prove a point," the prosecutor asked, "Is that okay with you in your mind when you're judging a criminal case, that those--direct and circumstant[ial] evidence--are going to be equally strong?" Ms. W. answered, "I think they are both important. I would think one would be--because it depends on what is stated as hearsay, if it is as strong as direct. I think they are both highly important, but I think one can be stronger than the other." The prosecutor then asked, "Based on facts?" to which Ms. W. replied, "Or not facts." (Italics added.)
After passing for cause, the prosecutor exercised her 13th peremptory challenge to excuse Ms. W.
Defense counsel then "mov[ed] the Court for a mistrial under [People v. Wheeler], and on that basis of the strike against Juror [Ms. W.], who was the last People's peremptory challenge." This precipitated the following discussion out of the presence of the venire:
"MR. SMITH [Defense Counsel]: Ms. [W.] is African-American, as is the defendant. I could see nothing in her responses that would indicate that she was biased against the prosecution. She doesn't--as frequently is the case with African-Americans, have family members who have been defendants or in prison or any of that stuff. [¶] It is true that I have excused one African-American who was the--I forget the name off the bat, but the lady who was the wife of a police officer.
"THE COURT: Actually, two.
"MR. SMITH: But I can't think of a nonracial reason for having excused Ms. [W.], so I make that motion.
"THE COURT: Well, the first step here is make a prima facie case of exclusion. It used to be systematic exclusion. I think now the courts simply--even the first use of the improper peremptory challenges is sufficient for the making of a prima facie case; in other words, somebody is being excluded because they are a member of a cognizable group. [¶] I guess I'm having difficulty that a prima facie case has been made; however, I'm going to allow the People, if they so wish, to state their reasons as to why they exercised the challenge, as if the Court did find [a] prima facie case, so the Court can analyze that, in case I'm incorrect in simply saying I can find no reason, other than race to exercise the peremptory being sufficient for the prima facie case. [¶] Ms. Brown.
"Ms. BROWN [Prosecutor]: Certainly. The first one, based just upon her questionnaire is that she is a union representative, and my experience is that union representatives, they tend to be on the opposite side of the establishment or anti-establishment. [¶] Secondly, on her questionnaire, she indicated that she does have a friend or relative who was arrested for arson, two felony counts of arson. That was the other thing, and there is not another juror who [is] on the panel right now in the box that has the same serious type of felony conviction or arrest in their background with people they know. [¶] But, moreover, it was her answers to Mr. Smith's questions about reasonable doubt and then my question about circumstantial and direct evidence. And her responses to those two questions cemented my concern about the employment issue of union representation and the history of having a relationship with someone who has been arrested for felony arson charges."
Although defense counsel agreed with the prosecutor that Ms. W. had "a little bit of trouble" with the concepts of reasonable doubt and circumstantial evidence, he still thought she did "well enough," and also suggested Ms. W. "should [not] be penalized for being affiliated with organized labor."
The court then ruled: "Well, I do find that the explanations given by the district attorney as to the exercise of the peremptory challenge are neutral, and they are not race based. So, therefore, respectfully, I'm going to deny your Wheeler motion."
"Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias." (People v. Thompson (2010) 49 Cal.4th 79, 107 (Thompson).) "[A]n objection on the basis of Wheeler also preserves claims that may be made under Batson." (People v. Salcido (2008) 44 Cal.4th 93, 135-136, fn. 7.)
"The law applicable to Batson/Wheeler claims is now familiar. 'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then ...