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The People v. Pheng Kue

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)


May 24, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PHENG KUE, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF08225)

The opinion of the court was delivered by: Mauro , J.

P. v. Kue CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Pheng Kue was convicted of second degree murder, attempted murder, willful discharge of a firearm at an occupied motor vehicle, and active participation in a criminal street gang. Defendant contends on appeal that his conviction must be reversed due to instances of prosecutorial misconduct, including coaching a witness, breaching an agreement on the scope of a witness's testimony, displaying inadmissible photographs and misstating the record. Defendant also contends that his sentence for active participation in a criminal street gang must be stayed pursuant to the multiple punishment prohibition in Penal Code section 654.*fn1

We conclude that the prosecutor did not commit prejudicial misconduct. However, we agree that defendant's eight-month sentence for active participation in a criminal street gang must be stayed pursuant to section 654. In all other respects we will affirm the judgment.*fn2

BACKGROUND

On the afternoon of May 8, 2008, 29-year-old Raymond Castro was driving his brother, 17-year-old Ignacio Castro, to Lindhurst High School.*fn3 When Raymond stopped at a stoplight, the brothers noticed Thang Yang's vehicle behind them. Meng Thao and defendant were passengers in Thang's car. Ignacio had known Thang since kindergarten, and had been fighting with him since the eighth grade. Raymond turned onto Linda Avenue, stopped to see if Thang had followed them, and then handed Ignacio a flashlight for protection in case anything happened. Raymond continued driving toward the high school.

As Raymond approached the intersection of Fernwood and Oakwood Drive, the brothers saw Thang drive through the intersection. Raymond accelerated his car, ran the stop sign, turned the corner and followed two car lengths behind Thang's vehicle. Ignacio saw Meng lean out of the window of Thang's vehicle and point a gun at the brothers. Thang's vehicle slowed to about five miles per hour as it approached the first speed bump on Oakwood Drive, and Meng fired a shot at the brothers. Raymond slowed his vehicle, grabbed Ignacio and pushed him down. Thang's vehicle continued to slow down and Raymond began to make a U-turn to escape. Ignacio heard more gunshots. Raymond was wounded, and the brothers' car rolled to the curb.

Thomas Jackson and Michael Morris, who lived nearby, heard gunshots and observed Thang drive slowly over the speed bumps on Oakwood Drive. Thomas saw a man with a gun leaning out of the front passenger window from the back seat. Another person was sitting in the front passenger seat. Michael heard four more shots and saw Raymond's vehicle come to a stop against the curb. Thomas saw Thang's vehicle speed away and make an abrupt turn onto Cobblestone Drive. Thomas and Michael saw Ignacio outside of Raymond's car, and he did not have anything in his hands. Thomas ran to the brothers' car, observed that Raymond had a bullet wound to his head, and quickly searched the vehicle for weapons but did not find any. Michael phoned 9-1-1 for assistance, but Raymond died from a gunshot wound to the right side of his head.

Deputy Willy Kardatzke was dispatched to the shooting scene. Ignacio did not have a gun and Deputy Kardatzke did not find one in the vicinity of Raymond's vehicle.

Deputy Kardatzke took Ignacio to an address on Country Club Court where a witness, Linda Viana, had observed four Asian males get out of Thang's vehicle. Other law enforcement officers at Country Club Court discovered Thang's car covered by a tarp and found that the hood was still warm to the touch. Ignacio identified Thang's vehicle as the one involved in the shooting. He also identified Thang as the driver, Meng as the one who leaned out the window and shot at them, and defendant as a passenger.

Detective Felion, who investigated the shooting and processed the scene, found shattered glass near the first speed bump, 5 nine-millimeter shell casings between the two speed bumps, and another nine-millimeter casing near the intersection of Oakwood and Cobblestone Drive. He did not find any guns or shell casings in or around Raymond's vehicle, but did find a flashlight inside. In Thang's vehicle, Detective Felion found a nine-millimeter shell casing in the front passenger seat, a bullet hole in the rear window frame, and a piece of copper jacket in the trunk.

A criminalist concluded that a bullet in the trunk of Thang's vehicle traveled from the front to the back of the vehicle, entered the edge of the rear window frame, shattered the rear window, and landed in the trunk. The criminalist determined that the six shell casings found at the scene and the one found in Thang's trunk were all fired from the same gun.

Sergeant Allen Garza interviewed defendant about the shooting and permitted him to use his cellular phone to call his sister. Defendant told his sister he had admitted being in Thang's car and shooting the gun. He believed he had shot one of the occupants of Raymond's vehicle. Defendant told his sister to tell their brother to get rid of the gun. When officers searched defendant's brother's apartment four days later, they found an empty gun case.

Sergeant Garza testified as a gang expert. He was familiar with the Hmong National Society (HNS), had talked to its members about their gang-related activities, and had reviewed law enforcement reports on HNS gang-related offenses. Sergeant Garza opined that defendant, and co-defendants Thang and Meng, belonged to HNS based on the 10 criteria used to determine if someone is a validated member of a gang. Defendant met six of the ten criteria, one of which was having a tattoo of "HNS" on his arm. A search of his residence revealed a plastic tub of his clothes, on which was written "HNS" and "Blood 475," references associated with the HNS gang. Most members of HNS are related and defendant's brothers and cousin were self-admitted HNS members. In addition, at the time law enforcement contacted defendant, he was with other HNS gang members.

Sergeant Garza explained that respect is very important in gang culture and that members may feel disrespected if a rival gang is in their territory, if they are glanced at or stared at, or if another gang shows their hand signs. Disrespect typically results in some type of violence. Gang members gain respect by committing violent crimes. The crimes benefit the gang because information about the violent conduct spreads to the community, thereby enhancing the gang's reputation by instilling fear in rival gangs, witnesses, victims and the public in general. Given a hypothetical based on the facts of the current case, Sergeant Garza opined that defendant, Thang, and Meng enhanced HNS's reputation by committing the current crime.

Defendant and his co-defendants attempted to establish at trial that they acted in self-defense, or in the honest but unreasonable belief in the need for self-defense. Thang testified that two months prior to the shooting, Thang, his brother Kee, a cousin, and two friends were at Wal-Mart at the same time as Raymond, Ignacio, and their brother Jose. One of Thang's friends and Ignacio began fighting and, when Thang attempted to separate them, Raymond hit Thang in the head. A brawl ensued, a store clerk intervened, and then both groups went outside. In the parking lot, Raymond told Thang's group that he was going to kill them. Thereafter, Raymond drove his vehicle by Thang's house on several occasions and looked at Thang menacingly. Thang was afraid because he had heard that Raymond, whose street name was Demon, had been paroled recently from prison.

According to Sergeant Garza, Raymond had been arrested for possession of a handgun, and had also been accused of assaulting his wife with a deadly weapon (a vehicle). Raymond had various Norteno gang-related tattoos, but claimed to have dropped out of the gang and was not an established active member at the time of the shooting.

Thang stated that one month prior to the shooting, Raymond, Ignacio, and two other men confronted Thang's brother, Kee, and "roadblocked" his car with theirs as Kee was leaving school. They were armed with a screwdriver, baseball bat and a flashlight, and Raymond told Kee he was going to kill him. One of the men appeared to flash a gang sign. Kee drove up on the sidewalk to get away. When Thang learned of the incident, he became frightened and thought Raymond was "coming for us."

The day before the shooting, Thang and Meng were involved in a fight with the Castro brothers' cousin. Meng pulled out a gun and yelled "HNS." When Thang saw Raymond and Ignacio following them the next day, he was afraid that the Castro brothers were going to retaliate for the Wal-Mart incident and the fight with their cousin. Thang thought that Raymond was going to kill them, pointed out the brothers to defendant and Meng, and told them there might be trouble. However, when Thang was interviewed by detectives after the shooting, he did not tell them about the incident at Wal-Mart or any of Raymond's prior threatening behavior.

Defendant testified he was in the front passenger seat of Thang's car on the day of the shooting, and that Meng was in the backseat. Thang stopped at a stoplight directly behind Raymond's vehicle. Defendant saw the Castro brothers again near the intersection of Fernwood and Oakwood Drives. After Thang passed through the intersection, Raymond ran the stop sign and sped toward Thang's car. Defendant was afraid because Thang had told defendant about the fight Thang had with the Castros, that the brothers had driven by Thang's house, and that Raymond was a Norteno gang member who carried a weapon. While Raymond's car was still behind Thang's vehicle, someone told defendant to shoot at Raymond's car. Defendant saw Ignacio reaching for something and he thought it was a gun. Defendant was afraid he was going to be killed in a drive-by shooting, grabbed a gun from somewhere in the car, shot it one time, and shattered the back window of Thang's car. He wanted to scare Raymond away so that Raymond would stop chasing them.

A jury found defendant guilty of second degree murder, attempted murder, willful discharge of a firearm at an occupied motor vehicle, and active participation in a criminal street gang. The jury found the first three crimes were committed for the benefit of a criminal street gang, and found true all but one of the charged firearm enhancements. It also found that although defendant was only 14 years old, he was a fit subject for adult adjudication. The court sentenced defendant to a determinate term of 37 years, eight months, and an indeterminate term of 40 years to life, in state prison.

DISCUSSION

I

Defendant contends the judgment must be reversed due to several instances of prosecutorial misconduct that undermined his theory of self-defense.

According to federal and state standards regarding prosecutorial misconduct, "'"[a] prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.)

As we will explain, defendant fails to establish that any prejudicial prosecutorial misconduct occurred.

A Defendant argues that during a break in the proceedings, the prosecutor improperly coached Ignacio, who was a prosecution witness, and caused him to change his testimony.

Before trial, defendant's trial attorney informed the court that his investigator was unable to speak to Ignacio or his family because Ignacio stated the prosecutor told him not to talk to the defense. The prosecutor responded that when he met with Ignacio, he told him not to talk to family members about his testimony, but that he was free to talk to anyone else if he wanted. The prosecutor had also informed the liaison for victim witnesses to inform Ignacio that he was free to talk to whomever he chose.

At trial, Ignacio testified during cross-examination that the prosecutor had told him not to talk to "anyone." Following a break in the proceeding, the prosecutor asked Ignacio what the prosecutor had told Ignacio about talking to others when they met before trial. Ignacio clarified that the prosecutor had told him he was free to talk to anyone beside his family. On further cross-examination by defense counsel, Ignacio stated that he chose not to speak to the defense investigator. He also revealed that he had spoken to the prosecutor during the break and that his victim witness counselor, Jason Roper, was present at the time.

Roper testified that while he and Ignacio were outside the courtroom, the prosecutor approached them. The prosecutor asked if Ignacio recalled what the prosecutor had said a few weeks earlier about talking to others, but did not attempt to correct Ignacio's testimony. Ignacio recalled that the prosecutor told him he could choose to talk to people, but that he was not to speak to family members that were potential witnesses. According to Roper, the conversation lasted about 30 seconds.

Co-defendant Thang, joined by Meng and defendant, moved for a mistrial on the ground of prosecutorial misconduct, arguing the prosecutor coached Ignacio to change his testimony. The trial court denied the motion, ruling that the prosecutor did not coach the witness.

On appeal, defendant argues that the prosecutor's conduct, "no matter how benignly disguised it may be as mere 'clarification' of [a witness's] testimony," was an impermissible "deceptive attempt to persuade the jury." In defendant's view, the very fact the prosecutor drew Ignacio's attention to a particular portion of his testimony meant the prosecutor was letting Ignacio know he got that portion of the conversation wrong.

There is no evidence that the prosecutor told Ignacio what to say or steered his testimony in a particular direction, and thus no evidence that the prosecutor coached the witness. We cannot say on this record that the prosecutor used "'"'deceptive or reprehensible'"'" methods to persuade the court or jury. (People v. Samayoa, supra, 15 Cal.4th at 841.) This incident did not involve prejudicial prosecutorial misconduct.

B Defendant next asserts that the prosecutor committed misconduct when he breached an agreement concerning the scope of questions he intended to ask Linda Viana, the witness who observed four Asian males getting out of Thang's vehicle at Country Club Court after the shooting. He maintains it is misconduct to deliberately ask a question calling for inadmissible and prejudicial answers (People v. Bell (1989) 49 Cal.3d 502, 532), and that the prosecutor had a duty to warn his witness not to give an answer the prosecutor knew was inadmissible (People v. Warren (1988) 45 Cal.3d 471, 481-482).

The record reflects that prior to Linda's testimony, defense counsel asked the prosecutor to "highlight" the portions of Linda's witness statement that the prosecutor thought were relevant and intended to cover with the witness. The prosecutor did so, and defense counsel did not have any objection to the highlighted portions. The record does not include the highlighted witness statement.

During Linda's testimony, she described seeing four male Asian teenagers get out of Thang's vehicle at a residence on Country Club Court, sometime after noon on the day of the shooting. Meng's counsel asked Linda if the teenagers left immediately. She responded that "they were just pulling out their sweaters or jackets or whatever" from the car before they walked away. On redirect, the prosecutor asked, "So you didn't notice anything out of the ordinary?" Linda stated, "They were laughing."

Thang's counsel moved to strike on the basis the testimony was beyond the scope of the offer of proof. The court granted the motion and directed the jury to disregard the answer to the last question. At the next break, defendant's attorney moved for a mistrial, stating he "was very clear and upfront about [his] motivation in wanting to know what" the prosecutor was going to ask Linda. The attorney said the fact defendant and co-defendants were laughing was very prejudicial and the lack of relevance was the main reason he wanted an Evidence Code section 402 hearing about Linda's proposed testimony. According to counsel, the prosecutor intentionally elicited the prejudicial testimony and a mistrial was warranted.

The prosecutor replied that he asked the questions counsel agreed he could ask, and did not ask anything further until Meng's counsel asked what the defendants were doing after they exited the car. All he intended to establish was that they were doing nothing out of the ordinary, and he did not anticipate that Linda would say they were laughing. The prosecutor contended the court's admonition to the jury cured whatever harm resulted from the evidence.

The trial court observed that Meng's counsel asked what the Asian men were doing, and ruled that the trial court's order that the answer be stricken was curative.

We find no prejudicial prosecutorial misconduct. The record indicates that the prosecutor complied with the agreement concerning Linda's testimony during his direct examination. It was only after Meng's counsel elicited testimony concerning the behavior of defendant and co-defendants after they left the car that the prosecutor asked if they were doing anything out of the ordinary. The question was benign and the answer was arguably non-responsive, since there is nothing inherently "out of the ordinary" about young men laughing. The trial court then promptly admonished the jury to disregard Linda's statement. We presume the jury followed this admonition. (People v. Jones (1997) 15 Cal.4th 119, 168, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Wash (1993) 6 Cal.4th 215, 263.)

C Defendant also contends the prosecutor committed misconduct when he violated the court's pretrial ruling concerning the display of certain photographic evidence.

Over defendant's objection, the prosecutor sought to introduce a PowerPoint presentation containing numerous photographs of known gang members who were related to, or associated with, defendant and his co-defendants. The photographs listed factors demonstrating that the depicted subjects were HNS gang members. Some photographs also included arrest information. The prosecutor intended to use the presentation to support the gang expert's testimony concerning whether the three defendants met the gang validation criteria, whether they actively participated in the HNS gang, and whether they committed the crimes on behalf of the gang.

Defendant moved to exclude the presentation on the ground its prejudicial effect outweighed its probative value in that it tended to portray him as being guilty by association.

The trial court ruled the presentation was relevant to the criminal street gang charges, permitted the People to include photos of defendant's gang-affiliated relatives and those of his co-defendants, but excluded "a listing of prior arrests on any photo, as contrasted with convictions."

At trial, the prosecutor questioned Sergeant Garza, the gang expert, about the criteria used to validate gang members. After Garza testified that the HNS was "very family oriented" and that "[m]ost of the gang members are in one way or another related," the prosecutor began showing Garza photos of HNS members and asking questions about the people depicted therein. Although the record is not clear, it appears the prosecutor was using photos in the PowerPoint presentation, and displayed a photo of defendant's brother, Meng Kue, on which there was a notation concerning Meng Kue having been arrested for a gang crime. Moreover, Garza stated that Meng Kue had been arrested for a gang crime, whereupon the prosecutor asked if Garza knew "what the gang crime was."

Defense counsel objected on the basis of relevance. The trial court sustained the objection and asked counsel to approach the bench. Out of the presence of the jury, the trial court stated that it had previously ruled that it did not want any arrests displayed, as opposed to convictions, because the probative value was outweighed by the prejudicial effect.

The prosecutor advised the court he would need "a little while to modify this," and explained that the original PowerPoint listed not only the fact of arrest but the specific crimes for which the person was arrested. The prosecutor said he understood the trial court's order to refer only to removal of the listing of specific crimes. The prosecutor said he had removed the reference to the specific crimes from the photographs, submitted the revised PowerPoint to defense counsel for review, and there had been no objection until the photographs were shown to the jury. The court stated that its order indeed pertained to the fact of arrest and called a recess to have the prosecutor fix the presentation.

Thereafter, the prosecutor continued questioning Garza and showing him photographs from the PowerPoint presentation until he reached one of Cheng Thao, Meng Thao's brother. The photograph indicated that Cheng was arrested with known gang members. Thang's counsel objected and the court instructed the jury to disregard the reference to Cheng. A short time later, the prosecutor asked about Cheng's connection to Thang, and Garza replied, "They've been contacted previously." Thang's counsel asked that the picture of Cheng be stricken, and the court granted the request.

At the lunch recess, defense counsel moved for a mistrial on the ground of prosecutorial misconduct, noting there was no excuse for the prosecutor's repeated display of photographs with reference to arrests in violation of the court's order. The court stated it was disappointed that two additional items were presented on the screen with a notation concerning an arrest and chastised the prosecutor for his sloppiness. However, it denied the motion for mistrial.

Defendant contends it is misconduct for a prosecutor to violate a court order or evidentiary ruling and elicit inadmissible evidence. (People v. Crew, supra, 31 Cal.4th at p. 839.) "[A] determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct." (Ibid.) Defendant argues the misconduct was prejudicial because the arrest notation on the photographs created an inference that he associated with gang members who commit crimes, and that this undermined his theory of self-defense.

We disagree that any prejudice occurred from the alleged misconduct as there was ample evidence that defendant associated with criminal gang members and did not commit the current crimes in self-defense.

As part of his burden of proving the street terrorism offense and enhancements, the prosecutor had to prove that the HNS gang engaged in a "pattern of criminal gang activity," which meant he had to show that members of the gang committed two predicate offenses. (§ 186.22, subds. (a), (b), (e), (f).) Thus, the prosecutor presented evidence that HNS gang member John Xiong was convicted of threatening a police officer's family, and that during a drive-by shooting Cheng Yang attempted to shoot his own cousin, who was a member of a rival gang. Garza's testimony and the admissible portion of the PowerPoint presentation demonstrated that defendant's older brothers, Jer and Daniel, were validated gang members, and that defendant was also a member of the gang and had gang tattoos. In addition, Thang and Meng were members of HNS, and defendant was in their company during the commission of the charged offenses.

Thus, there was ample evidence that defendant was a member of a gang that committed violent crimes. There was also strong evidence that the crimes against the Castro brothers were not committed in self-defense. Witnesses observed Thang's car driving slowly rather than speeding up to escape Raymond, and it can be inferred that the fatal shot to Raymond's head occurred while Raymond was attempting to make a U-turn to escape from the gunfire. Under the circumstances, it is not reasonably probable the jury rejected defendant's claim of self-defense because it learned that some gang members had been arrested. (People v. Crew, supra, 31 Cal.4th at p. 839.)

D Next, defendant contends that the prosecutor misstated the record to the court, impugned defense counsel before the jury, and implied the existence of facts not in evidence. All of these contentions arise out of a dispute concerning whether there was a paint transfer between Thang's car and Raymond's car. Defendant asserts that this "entwined misconduct" prejudicially affected the trial by undermining his theory of self-defense.

At trial, Detective Felion testified that he examined both Thang's and Raymond's vehicles and "noticed a location of apparent paint transfer" on the rear bumper of Thang's vehicle, and "[a]n area of apparent paint transfer" on the front end of Raymond's car. A paint transfer would support an inference that Raymond rammed the HNS gang members, which could in turn support defendant's contention that he shot at Raymond in self-defense.

After the prosecution rested, the trial court and the attorneys discussed the issue of the paint transfer outside the presence of the jury. The prosecutor argued it would not be permissible for the defense to "bring in evidence of a paint transfer when they have proof in their possession that it did not happen." He based his argument on a Department of Justice expert's report, which the prosecutor had not presented in evidence during his case-in-chief but had given to defense counsel. The report indicated there was no paint transfer on either vehicle. Thus, according to the prosecutor, defense counsel were precluded from pursuing the paint transfer issue because it would be akin to misleading the court in violation of Business and Professions Code section 6068. The attorneys for Thang and Meng responded that the prosecutor's conduct was improper. The court stated it could not consider the expert testimony at this point because the prosecutor had rested.

Defendant contends the paint transfer discussion, which occurred "immediately before [defendant's] closing argument," was misconduct in that the prosecutor engaged in misleading and intemperate behavior by contending that counsel could not argue in a manner that contradicted the expert's report without violating the Rules of Professional Conduct. He asserts that since the report was not in evidence, he had an absolute right to pursue his paint transfer theory, and that the prosecutor committed misconduct in suggesting otherwise. Defendant maintains the fact the jury was not present did not give the prosecutor cart blanche to engage in misconduct, but acknowledges this factor affects the analysis of resulting prejudice. (People v. Pitts (1990) 223 Cal.App.3d 606, 693.)

Defendant forfeited this particular claim of prosecutorial misconduct because he did not object on this ground in the trial court, which is a prerequisite to preserving such a claim for appellate review. (People v. Earp (1999) 20 Cal.4th 826, 858; People v. Samayoa, supra, 15 Cal.4th at p. 841.) When the court asked if defendant's attorney had anything to add during the discussion, counsel merely stated, "I don't think this is anything we should be discussing."

Defendant contends an objection was not necessary because prior to trial, the court ruled that defendant was deemed to have joined his co-defendants' motions and they interposed an objection. But the record simply discloses that the court ruled defendant was deemed to have joined his co-defendants' pretrial motions in limine, that all in limine rulings remained in effect during trial, and that no further objection would be required to preserve any of the in limine issues for appeal. This is not the equivalent of a ruling that all of the defendants were deemed to have joined each others' motions and objections at trial.

In any event, defendant fails to demonstrate that he was prejudiced by the prosecutor's conduct. The discussion occurred before defendant presented evidence in his defense, not "immediately before [his] closing argument" as he contends. Defendant does not demonstrate that, as a result of the prosecutor's comments, the trial court precluded defendant from presenting evidence establishing that a paint transfer occurred between the two cars, or that the trial court limited the scope of closing argument based on the prosecutor's accusations or the report. In fact, the trial court was not swayed by the prosecutor's comments and stated it would not consider the report, which the prosecutor had not submitted into evidence. The accusation by the prosecutor had no effect on defendant's ability to present his defense or on the jury's verdict.

After the aforementioned paint transfer discussion occurred, defendant testified that Raymond's car never touched Thang's car and never came closer than 11 to 14 feet. This was consistent with Ignacio's testimony that the two cars never touched and only came within two car lengths of each other.

Despite this evidence, defendant's trial attorney argued to the jury, "Maybe because of the paint transfers, maybe, in fact, those cars did touch." The trial court sustained the prosecutor's objection on the ground that this misstated the evidence. Defense counsel replied, "There is [sic] paint transfers." The prosecutor objected again on the same ground, and defense counsel responded, "That is absolutely the evidence." The prosecutor retorted, "No, it is not, and you know better." Defense counsel insisted again that there were paint transfers, and the trial court sustained another objection from the prosecutor. At that point defense counsel stated, "Well, look at Detective Felion's statement as to the evidence of damage that he saw on the front bumper of [Raymond's car] and the rear bumper of [Thang's car]. So there is evidence, I will say, in fact, those vehicles did collide, did scrape each other."

Defendant contends the prosecutor's "you know better" comment constituted misconduct because it denigrated the integrity of opposing counsel (People v. Arias (1996) 13 Cal.4th 92, 162; People v. Wash, supra, 6 Cal.4th at p. 265), and implied the parties were aware of facts that were not in evidence. (People v. Davis (2005) 36 Cal.4th 510, 550.) But once again defendant forfeited his claim by failing to object and request an admonition. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Defendant asserts that his lack of objection is excused as futile, because the trial court repeatedly sustained the prosecutor's objections. We disagree.

The futility exception to the rule requiring an objection and request for curative admonition is applied only in "unusual circumstances." (People v. Riel (2000) 22 Cal.4th 1153, 1212-1213.) This is not such a case. Even though the trial court repeatedly sustained the prosecutor's objections that defense counsel had misstated the evidence -- Detective Felion's statement that there was an "apparent" paint transfer was contradicted by Ignacio's and defendant's testimony that the vehicles did not collide, and no scientific evidence was offered showing an actual transfer of paint between the two cars -- the record does not establish that it would have been futile for defense counsel to object to the prosecutor's comment that "you know better" and to request that the trial court admonish the jury to disregard that comment.

However, even if defendant had not forfeited this claim of prejudicial prosecutorial misconduct, we would reject the claim on the merits. On this record, the prosecutor's comment did not have "the potential to deny defendant a fair trial, divert the jury from its proper role, or invite an irrational, purely emotional response." (People v. Wash, supra, 6 Cal.4th at p. 266.)

Defendant also points to the prosecutor's rebuttal argument, in which the prosecutor responded to defense counsel's paint transfer theory by stating: "[Defendant] says they never got closer than 11 to 14 feet. Detective Felion said there is [sic] areas of apparent paint transfer. Now, if there was paint transfer, I reckon there would have been somebody in here to tell you there was paint transfer. A guy with a couple letters behind his name who would have said 'Geez, lookey here. I took the apparent paint transfer and I looked at them, and by God, that's what it is.' But you didn't have any of that. . . . Anything is possible. But you know what? Is it reasonable? Nah, because if it was reasonable, there would have been somebody here telling you this is what happened. You are stuck with the evidence."

Defendant asserts this was misconduct because it improperly shifted the burden of persuasion to the defense.

Again, the contention is forfeited based on trial counsel's failure to object. And again, the contention fails on the merits. A prosecutor is given wide latitude in closing argument, and his or her argument may be vigorous as long as it amounts to a fair comment on the evidence. (People v. Farnam (2002) 28 Cal.4th 107, 200; People v. Williams (1997) 16 Cal.4th 153, 221.) In addition, a prosecutor is permitted to comment on a defendant's failure to call logical witnesses or introduce material evidence. (People v. Brown (2003) 31 Cal.4th 518, 554.)

The prosecutor's statements did not constitute prejudicial misconduct.

E Defendant argues the foregoing alleged instances of misconduct demonstrate federal constitutional error. As we have explained, however, the prosecutor did not engage in prejudicial misconduct and hence did not engage in a pattern of conduct so egregious that it deprived defendant of due process. (People v. Samayoa, supra, 15 Cal.4th at p. 841.)

II In addition, defendant contends that the trial court erred when it did not stay his eight-month consecutive sentence for actively participating in a criminal street gang. The offense required proof that he willfully promoted, furthered or assisted in felonious criminal conduct by his gang. (§ 186.22, subd. (a).) To establish this element the prosecution relied solely on the felonies defendant committed when he shot at the Castro brothers from Thang's vehicle. Defendant argues he is being punished twice for the same conduct in violation of section 654. Under the factual circumstances of this case, we agree.

Defendant was convicted of second degree murder, attempted murder, willful discharge of a firearm at an occupied motor vehicle, and active participation in a criminal street gang.*fn4 The jury found the first three crimes were "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).) The court stayed the sentence for discharging a firearm at an occupied vehicle pursuant to section 654, but did not similarly stay the sentence for active participation in a criminal street gang.

Section 654 "prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor." (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)

In People v. Latimer (1993) 5 Cal.4th 1203 (Latimer), the defendant kidnapped his victim, drove her into a desert, raped her, and left her behind. (Id. at p. 1206.) The court held that a separate punishment for the kidnapping was not permitted because the sole objective of the kidnapping was to facilitate the rape. The court observed, "It could be argued that defendant had two intents: (1) to drive the victim against her will to an isolated area, and (2) to rape her. Cases applying the Neal rule, however, make clear that multiple punishment for both the rapes and the kidnapping is prohibited under the circumstances of this case. Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes." (Id. at p. 1216.)

Several courts have considered the question of whether section 654 permitted separate punishment for a defendant convicted of street terrorism as well as one or more other felonies, and reached varying results based on the facts in each case. (People v. Sanchez (2009) 179 Cal.App.4th 1297 (Sanchez) [same]; People v. Vu (2006) 143 Cal.App.4th 1009, 1032-1034 [same]; People v. Ferraez (2003) 112 Cal.App.4th 925, 935 [multiple punishment not barred]; In re Jose P., supra, 106 Cal.App.4th at pp. 468-471 [same]; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466-1468 (Herrera) [same].)*fn5

The Attorney General relies on the Herrera line of cases, which indicates that multiple punishment for gang participation and for the underlying offense is permissible as long as the underlying offense requires a different specific intent. (Herrera, supra, 70 Cal.App.4th at pp. 1466-1468 [murder]; People v. Ferraez, supra, 112 Cal.App.4th at p. 935 [possession of drugs with the intent to sell]; In re Jose P., supra, 106 Cal.App.4th at pp. 468-471 [robbery].)

In contrast, defendant relies on Sanchez, supra, 179 Cal.App.4th 1297, which concluded that section 654 applied when a defendant was convicted of both section 186.22, subdivision (a), and a separate felony (in that case, robberies), based on the same acts. The Sanchez court observed, "the underlying robberies were the act that transformed mere gang membership--which, by itself, is not a crime--into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies. Gang participation merely requires that the defendant 'willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang . . . .' [Citation.] It does not require that the defendant participated in the underlying felony with the intent to benefit the gang. [Citations.]" (Id. at p. 1315.) "[T]he crucial point is that [the] defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself. Thus, the most analogous line of cases involves convictions for both felony murder and the underlying felony. It has long been held that section 654 bars multiple punishment under these circumstances. [Citations.]" (Ibid.)

Whatever the merit of the alternative holdings in these cases, the California Supreme Court has yet to alter its test requiring evidence to support a finding that defendant formed a separate intent and objective for each offense. (Latimer, supra, 5 Cal.4th at p. 1208; Harrison, supra, 48 Cal.3d at p. 335; People v. Coleman (1989) 48 Cal.3d 112, 162-163; Neal, supra, 55 Cal.2d at p. 19.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." (Harrison, supra, 48 Cal.3d at p. 335.) The defendant's intent and objective are factual questions for the trial court based on all the circumstances, and its determination will be upheld on appeal if there is any substantial evidence to support it. (In re Jose P., supra, 106 Cal.App.4th at p. 469.) But to impose multiple punishments "'there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. . . .'" (People v. Coleman, supra, 48 Cal.3d at p. 162.)

Here, there is no evidence showing (1) that this 14-year-old defendant had participated in other gang crimes or willfully promoted or assisted any other felonious criminal conduct by his gang; (2) that he was out looking for the Castro brothers with the intention of killing them as in People v. Herrera, supra, 70 Cal.App.4th at pp. 1461, 1463; or (3) that he shot at the Castro brothers because he wanted to kill them for reasons unrelated to his gang affiliation. There is no evidence that defendant's act of shooting at the Castro brothers was for any reason other than a spur of the moment intention to promote his gang. The suggestion that defendant's act of shooting at the Castro brothers was for multiple, independent objectives is not supported by substantial evidence on this record.

While murder and attempted murder can be committed by a gang member for a reason other than to further his gang's felonious activities, the murder and attempted murder committed by defendant are inseparable from his offense of active participation in a gang. It is not sufficient that the legal intent elements of the crimes are different; there must be evidence supporting an inference that defendant's objectives in committing the different crimes were in fact independent of and not merely incidental to each other. There is no such evidence in the present case. Accordingly, we will modify the judgment by staying the eight-month sentence for violating section 186.22, subdivision (a). We will also direct the trial court to amend the abstract of judgment to correct a typographical error, deleting "12.22.53(b) PC" under Enhancements and replacing it with "12022.53(b) PC."

DISPOSITION

The sentence on defendant's conviction for participating in a criminal street gang is stayed. In all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification, and also correcting a typographical error by deleting "12.22.53(b) PC" under Enhancements and replacing it with "12022.53(b) PC." The trial court shall forward a certified copy of the amended abstract of judgment to the Division of Juvenile Justice.

We concur: RAYE , P. J. BLEASE , J


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