(Super. Ct. No. 07F01802)
The opinion of the court was delivered by: Blease , Acting P. J.
Opinion following recall of remittitur
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Jimmy Lee Jones guilty of assault with a firearm on Andrelia, a minor (Pen. Code, § 245, subd. (a)(2); count 1),*fn1 shooting at an occupied vehicle (§ 246; count 2), and unlawful possession of a firearm (§ 12021, subd. (c)(1); count 3.)*fn2 The jury also found true allegations Jones personally used a firearm in the commission of count 1 (§ 12022.5, subd. (a)(1)); personally discharged a firearm and proximately caused great bodily injury to Andrelia in the commission of count 2 (§§ 12022.53, subd. (d), 12022.7); personally inflicted great bodily injury to Andrelia in the commission of counts 1 and 2 (§ 12022.7, subd. (a)); and committed counts 1 and 2 for the benefit of or in association with the Del Paso Heights Bloods (DPHB), a criminal street gang (§ 186.22, subds. (b)(1), (4)).
The jury found defendant Deandre Deloney aided and abetted Jones in the commission of counts 1 and 2, and thus, was guilty of those offenses. The jury also found true allegations Deloney (1) was a principal in the commission of count 1 and a principal was armed with a firearm (§ 12022, subd. (a)(1)); was a principal in the commission of count 2 and a principal personally discharged a firearm and proximately caused great bodily injury to Andrelia (§§ 12022.53, subds. (d), (e)(1), 12022.7); and committed counts 1 and 2 for the benefit of or in association with the DPHB (§ 186.22, subds. (b)(1), (4)).
The trial court sentenced Jones to an aggregate term of 40 years to life in state prison, consisting of 15 years to life on count 2 (§§ 246, 186.22, subd. (b)(1), (4)(B)), plus an additional 25 years to life for personally discharging a firearm and proximately causing great bodily injury. The court sentenced Jones to a concurrent*fn3 20 years on count 1, consisting of three years for the underlying offense, plus a consecutive four years for personally using a firearm, plus a consecutive three years for personally inflicting great bodily injury, plus a consecutive 10 years for the gang enhancement.*fn4
The court sentenced Deloney to an aggregate term of 30 years to life, consisting of five years on count 2, plus a consecutive 25 years to life for being a principal in the commission of count 2 where a principal personally discharged a firearm and proximately caused great bodily injury. The court sentenced him to a concurrent nine years on count 1, consisting of three years for the underlying offense, plus one year for being a principal in the commission of count 1 where a principal was armed with a firearm, plus five years for the gang enhancement.*fn5
Defendants appeal, contending (1) there is insufficient evidence to support the jury's findings that Jones did not act in self-defense in committing counts 1 and 2 and that Deloney aided and abetted in the commission of those offenses; (2) the court prejudicially misled the jury in responding to a question concerning "mutual combat" and abused its discretion in refusing Jones's request to reopen closing argument on that issue; (3) there is insufficient evidence to support the gang enhancements; (4) the court abused its discretion in admitting evidence concerning gangs and gang affiliations; (5) the court erred in admitting evidence that an unidentified witness stated defendants shot Andrelia; (6) the court erred in excluding evidence that others claimed responsibility for shooting Andrelia; (7) their convictions were obtained through the knowing use of false testimony in violation of Napue v. Illinois (1959) 360 U.S. 264 [3 L.Ed.2d 1217] (Napue); (8) the prosecutor committed misconduct during closing arguments; and (9) their sentences on count 1 must be stayed pursuant to section 654, and the abstracts of judgment must be corrected to accurately reflect their sentences.
We shall conclude the trial court abused its discretion in admitting evidence that an unidentified witness stated defendants shot Andrelia, but find that the error was harmless with the exception of the jury's finding that Jones personally inflicted great bodily injury to Andrelia. We shall reverse that finding and strike the three-year enhancement for personally inflicting great bodily injury appended to Jones's sentence on count 1. We shall further conclude that defendants' sentences on count 1 must be stayed pursuant to section 654. We shall affirm the judgments in all other respects. Finally, we shall direct the trial court to amend the abstracts of judgment to reflect those modifications, as well as the following: defendants' liability for victim restitution is joint and several.
FACTUAL AND PROCEDURAL BACKGROUND
On February 17, 2007, 15-year-old Andrelia and her friends Raukiya and Keeburee went to the home of Keeburee's boyfriend "Baby J" to smoke marijuana. Baby J lived in an area of Del Paso Heights known as "the Flats." While they were there, Keeburee got upset and left. The others followed her down the street and around the corner near Deloney's house. As they walked past Deloney's house, Keeburee called Baby J a "bitch." Defendants, O'Neil Deloney,*fn6 and two other men were in Deloney's front yard and told Baby J he should slap Keeburee. Baby J responded that he was going to get his sister to fight Keeburee. Keeburee began yelling at the men, and they told her, "Bitch, you ain't nobody, nobody special."
Keeburee telephoned her brother Anthony Ivy and announced that her brothers were coming over. Deloney said he was going to call some girls, and Keeburee, Andrelia, and Raukiya went to Raukiya's house to wait for Keeburee's brothers and to prepare to fight the girls Deloney said he would call.
A short time later, Keeburee's brothers--Anthony, Muhammad, and Malcolm Ivy*fn7 --arrived, along with Muhammad's "baby mama" Latoya Taylor, Rayshawn Smith, and an unidentified man and woman. Everyone except Raukiya drove to Deloney's house in two cars. Raukiya arrived later. Raukiya's little brother Famous, who was 14-years-old at the time, overheard Keeburee talking about fighting some girls and rode his bike to a corner near Deloney's house to watch.
When the two cars pulled up near Deloney's house, everyone but the unidentified man got out. Keeburee picked up a golf club and used it to knock on the door to Deloney's house. An elderly woman answered, and Keeburee demanded to speak to Deloney. Deloney and O'Neil appeared in the driveway, and everyone began yelling. Muhammad challenged O'Neil to a fight, and Deloney said he would get someone to fight Keeburee. Anthony then stepped in and told O'Neil, "I'm "fittin' to beat your ass." Anthony and O'Neil squared off and engaged in a fist fight. Anthony quickly overpowered O'Neil. While Anthony had O'Neil on the ground, Anthony said, "Nigga, this is Oak Park. This is Zilla." "Zilla" is a street gang from Oak Park that has "clicked" up with the Oak Park Bloods, meaning the two gangs "work together" and have "become almost the same gang." Anthony told O'Neil to say that "Zilla whipped [his] ass" and that Keeburee was "the best." O'Neil said Keeburee was the best but refused to say anything about Oak Park or Zilla. After he was through with O'Neil, Anthony began calling out his gang, yelling, "[T]his is Oak Park. This is Zilla. Whoop de whoop. Fuck the Flats. . . . All y'all can get it." Jones responded, "Nah, nigga. Fuck Oak Park. This is the Flats." Malcolm then got in Jones's face and said, "This is Oak Park." Jones responded, "I don't give a fuck. You feel me? It's still the Flats. You feel me, nigga. You feel me?" Malcolm said, "Nigga, I'll beat all y'all asses . . . ."
At that point, Andrelia and Raukiya began walking toward Raukiya's house, while Keeburee and the rest of the Oak Park group began walking toward the two cars. As Smith walked toward the cars, he lifted his shirt to reveal a gun in his waistband or pocket and said, "All y'all some bitches, whoop de whoop. All y'all can get it. I'll kill all y'all niggas, whoop de whoop. Don't none y'all niggas want it, woo woo."*fn8 Meanwhile, the members of the Oak Park group, except Keeburee and Smith, got into the two cars.
By that time, five or six members of defendants' "crew" were walking up the street and began arguing with Smith and Keeburee. As members of the crew arrived on the scene, Deloney went inside. When he returned, he had a gun and handed it to Jones. Jones then walked into the middle of the street and announced, "You think you're the only one with blaps things."*fn9 "Blaps" is a slang term used by Bloods to refer to guns. At that point, Andrelia and Raukiya ducked behind a truck. Andrelia could still see Jones and Smith. Smith walked backwards toward one of the cars with his gun pointed straight out, while Jones stood in the middle of the street holding his gun at a 45 degree angle.
Several shots were fired. Neither Andrelia nor Famous knew who fired the first shot; however, Andrelia testified that the first shot was fired "before I even seen [Jones] lift his arm up." Jones and Smith each fired at least one shot. Famous saw Jones shoot his gun "towards . . . where the truck was, where [his] sister and [Andrelia] was . . . ." Andrelia was struck in the side and left paralyzed from the waist down. Just before she blacked out, Andrelia saw Anthony hanging out of the window of one of the cars with a gun in his hand. She did not know whether he fired the gun.
After the shooting, defendants got into a van and left, while members of the Oak Park group drove out of the neighborhood, leaving Raukiya and Andrelia. Jones was wearing a red shirt at the time of the shooting.
Officer Robert Quinn, a detective in the gang suppression unit and the lead investigator in this case, testified as an expert in African American gangs, specifically the DPHB. His specialty within the gang unit is African American gangs in north Sacramento, including the DPHB. Over the years, he has had contact with members of the DPHB at least 100 times and is familiar with their territory, subsets, symbols, hand signs, tattoos, color, members, and crimes. According to Quinn, the DPHB operate mainly in the Del Paso Heights neighborhood in north Sacramento. The DPHB have numerous subsets, including Elm Street, the Dark Side, and the Flats. The subsets operate in smaller geographic areas within Del Paso Heights. While the DPHB's main rivals are "[a]ny and all Crip sets in Sacramento," they also feud with other Blood sets, including the Oak Park Bloods. The primary activities of the DPHB street gang are murder, attempted murder, assault with a deadly weapon, narcotic sales, robbery, burglary, and auto theft. Quinn testified at trial regarding past felony convictions of members of the DPHB.
Gang members like to broadcast their gang affiliation to other gang members. They do this through words, hand signs, tattoos, and wearing particular colors. Bloods are associated with the color red. According to Quinn, "[i]n the gang culture, respect is almost more powerful than money . . . ." Respect is obtained through fear, intimidation, and the commission of crimes. In gang culture, you lose respect if you are "disrespected" and fail to respond. If a gang member is challenged by a rival gang member and backs down, the gang member loses respect. To retain the respect of other gang members, a gang member must respond to a challenge by meeting the challenge and then taking it to the "next level." For example, "[w]hen another gang [member] . . . yells out in your turf and yells out their gang to you and you don't meet that, then your gang as a whole loses respect as well as you amongst that gang." Likewise, "if that rival gang . . . come[s] into your territory, [and] starts showing off a weapon," "[y]ou would lose respect if you didn't at least meet it or take it to the next level."
Quinn opined that Deloney was an active member of the DPHB street gang at the time of the shooting based on his membership in the Flats, a subset of the DPHB; his six prior arrests for selling marijuana, a primary activity of the Flats and the DPHB; his association with validated members of the DPHB; and his wearing of the color red. Deloney was observed in the company of validated DPHB gang members before and after the shooting. In March 2005, he was seen in the company of Ronny Jones, a validated member of the DPHB and the Flats. In October 2006, he was seen in the company of Christopher Blundt, a validated member of the DPHB and the Flats. When Deloney was arrested in this matter in March 2007, he was with Ronny Jones and was wearing a red sweatshirt.
Quinn also opined that Jones was an active member of the DPHB street gang at the time of the shooting based on his prior arrest for selling marijuana; his membership in the Flats; his association with validated members of the DPHB; and his wearing of the color red. Like Deloney, Jones was seen in the company of validated members of the DPHB before and after the shooting. In August and September 2006, he was seen in the company of Christopher Blundt, a validated member of the DPHB and the Flats. In September 2006, he was seen in the company of Tony Armstrong and Ronny Jones, validated members of the DPHB and the Flats. Moreover, at the time of the shooting and at the time of his arrest a month later, Jones was wearing a solid red t-shirt. In addition, just before the shooting, he used the term "blap," a slang term used by Bloods to refer to a gun.
Finally, Quinn opined that the shooting was gang-related and committed in association with and for the benefit of the DPHB street gang. In support of his opinion, Quinn cited defendants' membership in the Flats, which is "known as a Blood gang subset of the Del Paso Heights Bloods," Jones's statement, "Fuck Oak Park, this is the Flats," and Jones's wearing of the color red.
Neither defendant testified at trial. During closing arguments, neither defendant disputed that Deloney gave Jones a gun or that Jones fired it. Rather, both argued that Jones acted in self-defense. Deloney also argued that he handed Jones the gun to use to defend himself and Deloney and not to commit assaultive crimes.
Substantial Evidence Supports Defendants'
Convictions On Counts 1 and 2
Defendants contend there is insufficient evidence to support their convictions for assault with a firearm (count 1) and shooting at an occupied vehicle (count 2). More particularly, they claim there is insufficient evidence to support the jury's implicit finding that Jones did not act in lawful self-defense in committing those offenses.*fn10 Alternatively, Deloney asserts there is insufficient evidence he aided and abetted Jones in committing the offenses. Both claims lack merit.
The People had the burden of proving beyond a reasonable doubt that Jones did not act in lawful self-defense or defense of another. (People v. Adrian (1982) 135 Cal.App.3d 335, 340; People v. Banks (1976) 67 Cal.App.3d 379, 383-384.) In attempting to satisfy that burden, the prosecutor argued: (1) Jones did not actually or reasonably believe he was in imminent danger of being shot; (2) Jones provoked members of the Oak Park group with the intent of creating an excuse to use force; and (3) Jones and members of the Oak Park group were engaged in mutual combat. Defendants contend that none of those theories are supported by the evidence, and thus, "[t]he jury necessarily based its guilty verdicts on an invalid theory."*fn11
In addressing whether there is sufficient evidence to support the prosecutor's theories, we view the entire record in the light most favorable to the judgments and presume in support of the judgments the existence of every fact that the jury reasonably could deduce from the evidence. (People v. Kraft ...