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The People v. Ian Winston Clark-Johnson et al

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


September 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
IAN WINSTON CLARK-JOHNSON ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. No. 06F07215)

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

P. v. Clark-Johnson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

One summer evening in 2006, Shaaneel Singh and a friend were returning from a trip to the store, on their bikes, when Singh became the victim of a drive-by shooting. Defendant Ian Winston Clark-Johnson drove the car; his long-time friend defendant Michael Scott was the front passenger. Scott fired several shots while leaning out of the car's window, hitting and killing Singh.

The People prosecuted the case as a gang crime. Both defendants were charged with first degree murder with a drive-by special circumstance and firearm and gang enhancements.

Despite the introduction of extensive evidence relating to gangs, including not only a gang expert but also letters and other writings found in Scott's jail cell, the jury rejected the prosecution theory that the crime was gang related, finding the gang enhancement (Pen. Code,*fn1 § 186.22, subd. (b)(1)), not true as to both Scott and Clark-Johnson. The jury convicted Scott of first degree murder (§ 187, subd. (a)) and found true the drive-by special circumstance (§ 190.2, subd. (21)) and the personal use firearm enhancement (§ 12022.53, subd. (d)). The jury acquitted Clark-Johnson of first degree murder, convicted him of second degree murder, and found the firearm enhancement of section 12022.53, subdivision (e)(1) true.*fn2 Scott was sentenced to 25 years to life in prison plus life in prison without parole. Clark-Johnson was sentenced to 15 years to life in prison.

Both defendants appeal. Clark-Johnson contends there was insufficient evidence he aided and abetted Scott in the murder; the refusal to bifurcate the gang enhancements rendered the trial grossly unfair because the gang evidence was so prejudicial; and the instructions on the need for corroboration for accomplice testimony were incomplete, conflicting, and confusing as applied to Clark-Johnson's testimony in his own defense. Scott joins Clark-Johnson's argument that it was error to refuse to bifurcate the gang enhancement and argues he was prejudiced because the People improperly relied on the extensive gang evidence to show Scott's intent to kill. Scott further contends it was error to admit writings and letters found in his jail cell. Both defendants join in the other's arguments to the extent such arguments accrue to their benefit.

As we will explain, the evidence against both defendants was strong and the jury's rejection of the gang enhancement demonstrates that the gang evidence did not improperly influence the verdicts. Although we find the trial court abused its discretion in admitting without redaction the writings found in Scott's jail cell, the error was harmless. The accomplice instructions were not erroneous or confusing when considered in their entirety with the remainder of the instructions to the jury. We shall affirm.

FACTS

I

The Shooting

On August 8, 2006, Karl Moore was spending time with his cousin, defendant Scott.*fn3 They met at Moore's Aunt Brenda's house in Meadowview. Shortly before 7:00 p.m., they went to Walgreen's drug store with another family member. After they returned, Clark-Johnson arrived. The three sat in Clark-Johnson's car, a gold Chevrolet Lumina, and smoked marijuana. They then drove through Meadowview. Moore was in the backseat, while Scott was the front passenger and Clark-Johnson drove.

They encountered a green car, a "scraper," and chased it.*fn4 The green car was driven by Thomas Rumph.*fn5 Both cars were going very fast, about 50 miles per hour. The Lumina made U-turns, sharp turns, and did not stop at stop signs. The chase lasted three to five minutes.

Anthony Johnson was walking down Collingwood and saw the chase; indeed, at one point the green car almost hit him. As the Lumina passed, it slowed down. Scott, in the front passenger seat, was positioned partially outside of the car, "hanging out the window," holding a handgun. Scott threw Johnson a "B" sign, representing the Blood street gang. Johnson had been a Meadowview Blood in high school and interpreted Scott's gesture as a sign of respect or a greeting. The Lumina sped back up.

Marquail Sarente and Shaaneel Singh were on their bikes on a nearby corner, having gone to the store for Sarente's mother and to obtain a "swisher," a cigar that can be used to smoke marijuana. Sarente saw two cars racing on Tamoshanter. The Lumina stopped at the stop sign on Tamoshanter, at the same intersection as Sarente and Singh. From his position "hanging outside of the car," Scott held his arm straight out and fired the handgun. Sarente was passing the marijuana cigar to Singh when he heard shots. Singh was shot in the head and fell to the ground. Multiple shots, about five or six, were fired. The Lumina sped off. After the shooting, Sarente ran around yelling. He ran to a house where he told one of Scott's friends, "Your homie just shot and killed my homie."

Moore was in the backseat crying with his eyes closed during the shooting. On the drive back to Aunt Brenda's, the occupants of the Lumina did not discuss the shooting. Scott and Clark-Johnson asked Moore why he was scared. They said Moore was being "the scary bitch punk."

Singh died from a gunshot wound to the head.

II

The Investigation

The police responded at 7:30 p.m. to calls about the drive-by shooting. The supervisor of the gang suppression unit contacted Anthony Johnson who identified Scott as the person in the car who brandished the firearm and flashed the gang sign.*fn6 The police also interviewed Sarente. Sarente was concerned about his safety, but he swore on his dead grandmother that the shooter looked like "Mike" (indicating Scott). He and Scott used to be friends, but then started having problems. Sarente identified Scott to law enforcement as the person responsible for the shooting. At trial, Sarente testified he and Scott had a misunderstanding over a female, "a little something but nothing for this to happen."

At the main jail, telephone calls by inmates are recorded. Scott, who was arrested shortly after the shooting, made several calls using another inmate's X-ref number. In several calls, including one to Clark-Johnson, Scott indicated that the police were looking for two other people and a "Scooby-Doo," a reference to the Lumina. Scott also said that Clark-Johnson needed to "be cool" and stay out of the way. Scott "reminded" Clark-Johnson that the only time Scott left the house that night "was to go to Walgreen's, remember?"

The lead detective contacted Clark-Johnson, who cooperated and went to the police station to give a statement. Clark-Johnson said he was at a baseball game at Sacramento State University the night of the shooting from 6:00 p.m. to 9:45 p.m. Clark-Johnson consented to a search of his bedroom. The police found photographs they deemed gang related.

Cell phone records indicated Clark-Johnson's cell phone was not in the vicinity of Sacramento State University the night of the murder until 9:30 p.m. Someone using Clark-Johnson's phone had called Scott's phone twice around 7:00 p.m. and again about 10:00 p.m.

The police also interviewed Moore. Moore originally denied having any knowledge about the shooting, but gradually provided some information. Moore told the police he did not see Scott's gun, but knew he had one "because they talked." The gun was in Scott's backpack. Scott did not specifically show it to Clark-Johnson but Moore said, "They're pretty much with each other a lot so I mean --."

Forensics determined the bullets were "nominal .38-caliber," most likely a nine-millimeter Luger. No gunshot residue was found on Sarente; there was a gunshot residue particle on Singh's left hand. Characteristic gunshot residue was collected from the interior of the Lumina. This residue was consistent with a gun having been fired from within the car.

A few months before trial, a deputy searched Scott's cell at the jail. In Scott's property box, he found four letters from Clark-Johnson, letters from other inmates, photographs, and magazine clippings. A coded writing system was found inside Scott's Bible. Portions of a letter were decoded and translated into "M gang or don't bang" and "Fuck all craz."*fn7 Nothing was found in a search of Clark-Johnson's cell.

III

Gang Evidence

Both defendants were charged with a gang enhancement pursuant to section 186.22, subdivision (b)(1). The People took the position that "the motive and rationale for this violent act was classic gang style behavior." Over defense objection, Detective Scott MacLafferty testified as an expert on African-American street gangs.

MacLafferty testified the most common street gangs in south Sacramento were the Bloods, the Crips, and Bay Area groups. One subset of the Bloods gang was the Meadowview Bloods. In a gang, respect was the number one thing needed to survive. A gang member earned respect by "work," the crimes and violence that caused fear and intimidation in rival gangs and the community.

MacLafferty considered the Meadowview Bloods a criminal street gang; its primary activities were drug dealing, assault with a deadly weapon, robbery, intimidation of witnesses, burglary, and various firearm offenses. MacLafferty testified about two prior crimes by validated members of the Meadowview Bloods, Christopher Williams and Solomon Temple. These crimes benefitted the Meadowview Bloods by causing fear and intimidation.

As of August 2006, Scott had not been validated as a Meadowview Blood member. MacLafferty opined that Scott was then a Meadowview Blood, based on Scott's gang contacts. The expert based his opinion in part on the photographs and letters found in Scott's cell. Several photographs showed Scott and Clark-Johnson throwing Blood gang hand signs. Citing these pictures, MacLafferty opined that Clark-Johnson was a Meadowview Blood associate, not a member.

MacLafferty read to the jury substantial portions of letters found in Scott's cell and pointed out references to the Meadowview Bloods. The letters questioned Scott's loyalties and stated more was expected of a gang leader. MacLafferty could not explain certain street lingo in the letters. On cross-examination, MacLafferty conceded the letters were received two and a half years after the shooting and they admonished Scott for failing to live up to the expectations of the Blood gang. MacLafferty was of the opinion the letters showed Scott had attained the status of a shot-caller within the gang.

MacLafferty also read rap lyrics found in Scott's cell. MacLafferty first testified he did not know who wrote the lyrics, but later gave the opinion Scott authored them because the author referred to himself as "Mad Mike."*fn8 To MacLafferty, one lyric indicated the person who wrote it never snitched and another referred to someone who lies dead in the ground. Other lyrics discussed gang activity, weapons, and other gang members or "goons." MacLafferty believed these lyrics closely resembled the facts of this case.

MacLafferty also testified about a "code" found in Scott's cell; the code was to be used by Meadowview Bloods. A writing in the code had been translated: "M Gang or don't bang," which MacLafferty interpreted to mean "you bang Meadowview or your [sic] don't bang."

MacLafferty gave the opinion that the murder was gang related based on the totality of the photographs, letters and conduct, that it occurred in Meadowview, and that Scott threw gang signs before the shooting. The crime benefitted the Meadowview Bloods because rivals would know about it.

IV

The Defense

Clark-Johnson testified in his own defense. He was good friends with Scott and had known him since fifth or sixth grade. His plan for August 8, 2006, was to pick up Manuel B. and go to a baseball game at Sacramento State University, where a little league tournament was being held.

Clark-Johnson drove to Aunt Brenda's where Scott and Moore were. They planned to "chill" by smoking marijuana and listening to music for an hour before the ball game. They sat in the car for 15 minutes smoking marijuana. When they left they saw a green car. Clark-Johnson was driving. Scott told him to "scrape up on it," which meant to go faster. Clark-Johnson denied he saw Anthony Johnson, or that he saw Scott with a gun, lean out the window, or throw a gang sign. When he stopped at a stop sign, he heard a shot. He looked over and Scott was leaning out the window with a gun in his hand, arm pointing straight out.

They drove back to Aunt Brenda's. Moore asked who it was and Scott said, "Tree, he's trying to get me."*fn9 They stayed at Aunt Brenda's for an hour and a half but did not talk about the shooting directly; however, the need to "be cool," "relax," and not to "worry" was discussed.

Clark-Johnson went to the baseball field and met up with Manuel B. After a half hour or hour, he dropped his friend off and went home. Scott called that night and said he had watched the 10:00 p.m. news. Clark-Johnson watched the news at 11:00 p.m. and learned that someone had been shot and killed. Clark-Johnson saw Scott two days later. Scott said he originally did not think anyone had been shot. Scott explained that he had had a minor run-in with Sarente. Sarente told Scott that when he next saw Scott, he was going to smack him.

Clark-Johnson admitted he had lied to the police and to his father. He did not want to be involved; he just wanted "the situation" to "go away."

In his defense, Scott offered the testimony of a woman who was walking on Tamoshanter when the shots were fired. She saw a young man with hair in "dreads" run from house to house, banging on doors. Scott's defense was that he shot because Sarente had threatened to shoot him. He suggested that Sarente may have disposed of his gun before the police arrived. The court instructed the jury on voluntary manslaughter based on imperfect self-defense.

DISCUSSION

I

Sufficiency of the Evidence of Aiding and Abetting

Clark-Johnson contends there is insufficient evidence to support his second degree murder conviction. He asserts the jury could have based the conviction only on the theory that Clark-Johnson aided and abetted Scott in the killing. He contends there is no evidence he aided and abetted Scott because there was no evidence that he promoted, encouraged, or instigated the murder, or even that he was aware of it.

"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict--i.e., evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357, original italics.)

To establish Clark-Johnson's liability as an aider and abettor, the prosecution was required to prove that Clark-Johnson knew of Scott's unlawful purpose, and intended to and did aid, facilitate, promote, encourage, or instigate Scott's commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Beeman (1984) 35 Cal.3d 547, 560-561.)

In determining whether a defendant is an aider and abettor, the trier of fact may consider the factors of companionship, presence at the crime scene, conduct before and after the offense, and flight. (In re Juan G. (2003) 112 Cal.App.4th 1, 5; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) Here there is evidence of each of these factors. Taken together, this evidence is sufficient to support the jury's conclusion that Clark-Johnson aided and abetted Scott in the murder of Singh.

Companionship and presence at the crime scene are undisputed. Clark-Johnson and Scott had a close relationship. They had known each other since grade school and Clark-Johnson considered Scott like family. Scott sometimes spent the night. Clark-Johnson was present at the shooting; indeed, he was driving the car from which the shots were fired. He stopped the car when it drew next to the victim, just before the shooting began. While he contends he simply stopped because there was a stop sign, he had shown no such concern for traffic rules or safety in the minutes before when he was chasing Rumph.

Clark-Johnson's conduct before the shooting provides evidence that he shared Scott's unlawful purpose and intended to assist him. Clark-Johnson followed, without question, Scott's instruction to chase Rumph, without regard to the legality or safety of his driving. When Scott later told Clark-Johnson about "squashing the beef" with his rival, Clark-Johnson appeared to understand the reference, indicating he knew about Scott's disputes. The jury could easily disregard Clark-Johnson's claim that he was unaware that Scott leaned out of the window, waving a gun and throwing gang signs. (People v. Silva (2001) 25 Cal.4th 345, 369 [jury free to disbelieve those portions of defendant's statements that were obviously self-serving].) There was ample basis for rejecting Clark-Johnson's testimony. He had lied repeatedly, not only to the police, but also to his father. He had slowed the car when Scott threw the gang sign, indicating his awareness of Scott's actions. Other evidence permitted the jury to conclude that Clark-Johnson knew Scott had a gun. Moore told the police Clark-Johnson knew about the gun and, on cross-examination, Clark-Johnson admitted he knew Scott had carried a gun previously.

Clark-Johnson's conduct after the shooting also supported the finding he was an aider and abettor. Immediately after the shooting, Clark-Johnson did not react with surprise or dismay, but joined Scott in teasing Moore about being afraid. Clark-Johnson drove Scott to safety at Aunt Brenda's and stayed with him for over an hour. Clark-Johnson continued to associate with Scott. He called his friend later that night and saw him two days later. Their communication continued, by calls and letters, even after both were in jail. Clark-Johnson wrote Scott, telling him not to talk about Sarente "because that could wash us." Clark-Johnson also wrote, "Don't trip off [Sarente]. I told the homies the business before I came." These letters reveal Clark-Johnson's involvement in the shooting. Clark-Johnson not only gave the police a false alibi about being at a baseball game at the time of shooting, he asked Manuel B. to lie for him and say Clark-Johnson had been at the game earlier than he was. Finally, Clark-Johnson displayed consciousness of guilt by fleeing the murder scene; he drove the car away after the shooting.

Substantial evidence supports Clark-Johnson's conviction for second degree murder on the theory he was an aider and abettor.

II

Failure to Bifurcate Gang Enhancements

Both defendants contend the trial court erred in refusing to bifurcate the gang enhancements. Although the jury found the gang enhancements not true, defendants contend they were prejudiced due to the inflammatory and prejudicial nature of the gang evidence. Clark-Johnson argues the case against him was close and the jury probably found that he aided and abetted Scott only because the jury believed Clark-Johnson was a gang member. Scott argues the prosecution used the gang evidence to demonstrate his criminal disposition, focusing on the violent gang lifestyle to show that Scott had the requisite intent to kill because he was a gang member and gang members kill.

Prior to trial, both defendants objected to the admission of gang evidence and sought to bifurcate the trial of the gang enhancement. They argued there was no evidence that the shooting had a gang purpose. Scott also moved to set aside the gang enhancement. The People argued there was a gang-related motive in this case and gang evidence was relevant to explain the credibility of witnesses, their refusal to testify, or the shading of their testimony.

The court asked the People what gang evidence was relevant to the murder. In response, the People cited evidence that the defendants were chasing Rumph, and that no more than a minute before the shooting, Scott was leaning out of the window of the car with a gun flashing a Blood hand sign. The defense retorted that this incident was separate from the homicide. They argued everyone involved was from the Meadowview area, so there was no territorial issue. There was no evidence of graffiti or that anyone took credit for the killing afterwards or announced gang affiliation at the time.

The trial court denied the motion to bifurcate the trial. It found the People had relevant and potentially probative evidence suggesting motive and that the issues were properly joined under section 954.

The legal basis "for bifurcation of a prior conviction allegation also permits bifurcation of the gang enhancement." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) In determining whether to bifurcate, however, gang enhancements are not accorded the special treatment given to allegations of a prior conviction. (Ibid.) "A prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Hernandez, supra, 33 Cal.4th at p. 1048.)

Bifurcation is appropriate in some cases. "The predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, supra, 33 Cal.4th at p. 1049.)

In the absence of a gang enhancement, courts have recognized the potential prejudice of evidence of gang membership and have held such evidence should not be admitted if its probative value is slight. (Hernandez, supra, 33 Cal.4th at p. 1049.) But even in such cases, gang evidence is often relevant to the charged offense and admissible to prove identity, motive, specific intent or other issues relevant to guilt of the charged offense. (Hernandez, supra, at p. 1049.) "To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (Id. at pp. 1049-1050.)

The test for bifurcation, however, is not whether the gang evidence would be generally admissible to prove the charged offense. Even where the gang evidence would be inadmissible at trial of the substantive offense alone, for example where it would be excluded under Evidence Code section 352 as unduly prejudicial, where a gang enhancement is charged, a trial court may still deny bifurcation because other factors favor joinder. (Hernandez, supra, 33 Cal.4th at p. 1050.) Trying the enhancement together with the charged offense is an efficient use of judicial resources and the problems that arise with the admission of uncharged offenses--confusing the jury with collateral matters or presenting evidence of a crime for which defendant may have escaped punishment--are absent. (Ibid.) The trial court's discretion to deny bifurcation of a charged gang enhancement is broader than its discretion to admit gang evidence when the gang enhancement is not charged. (Ibid.)

The denial of a motion to bifurcate the trial of a gang enhancement is reviewed for an abuse of discretion. (Hernandez, supra, 33 Cal.4th at p. 1049.) There is no abuse of discretion if the gang evidence is relevant to the charged offense or it is not so minimally probative and so inflammatory in comparison that "it threatened to sway the jury to convict regardless of defendants' actual guilt." (Hernandez, supra, at p. 1051.) To show an abuse of discretion, defendants have the burden "'to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' [Citation.]" (Ibid.)

This burden is a heavy one, and here defendants have failed to carry it. That the jury found the gang enhancements not true shows the jury was not so swayed by the gang evidence that it failed to properly categorize and assess the evidence. Further, the gang evidence was certainly not more inflammatory than the facts of the charged offense.

Clark-Johnson focuses his "real complaint" on the admission of gang evidence in his trial, disputing the trial court's finding that gang evidence was relevant to motive, noting Scott flashed the gang sign four blocks away from the shooting. He further contends that even if the court did not abuse its discretion, the failure to bifurcate rendered the trial grossly unfair.

Clark-Johnson contends this case is similar to People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran). In Albarran, defendant and his companion fired multiple shots at a house where a birthday party was in progress. No one was killed or injured. (Albarran, supra, 149 Cal.App.4th at pp. 217-218.) After conviction, defendant moved for a new trial; he argued there was insufficient evidence to support the gang enhancements and without these enhancements, the gang evidence was irrelevant and overly prejudicial. The trial court granted a new trial only as to the gang enhancements. (Albarran, supra, at p. 222.) The appellate court found the gang evidence was irrelevant and so prejudicial as to deny defendant a fair trial. (Id. at p. 217.) We find Albarran distinguishable.

First, in Albarran there was no evidence of a gang motive other than defendant's gang affiliation. (Albarran, supra, 149 Cal.App.4th at p. 227.) The prosecution argued defendant shot at the house to gain respect and enhance his reputation, but there was no evidence to support this theory; defendant took no steps to announce his presence before, during or after the shooting. (Ibid.) While the precise significance of Scott's flashing of the gang sign to Anthony Johnson was subject to dispute, it did serve to identify his gang affiliation to Johnson, who was close enough that he heard the shooting moments later. Further, the gang evidence did serve to explain the reluctance of certain witnesses to testify and the motive of those who did testify to change their stories at trial.*fn10 Thus, here the gang evidence had some relevance to the charged offense.

Second, in Albarran, the gang evidence was extremely inflammatory. It included defendant's gang tattoo referencing the Mexican Mafia and graffiti which contained a threat to kill the police. (Albarran, supra, 149 Cal.App.4th at p. 220.) Here Detective MacLafferty testified about crimes committed by two other Meadowview Bloods. In one, Williams took a bag with checks and money in it from a woman at a bank. In the other, Temple shot a revolver in the air in front of a residence. Neither of these incidents is inflammatory compared to the facts of this case.

Scott asserts the key issue at trial was his state of mind, whether he had the intent to kill. He contends the People used the gang evidence to show his criminal disposition--that he was violent and therefore had the intent to kill. During closing argument, the prosecutor focused on the "gang lifestyle." "Consider the gang life lifestyle. . . . You can glean a lot from that." "Gang lifestyle, folks, it's violent but it's also pathetically predictable." "This is the gang lifestyle that is predicated on violence. The more violent, the better. Because the more violent you are, the more respect you are going to earn for yourself and for your gang." Scott, however, failed to object to this argument.

Scott also complains that in explaining the basis for his opinion that Scott was a Meadowview Blood gang member, MacLafferty was permitted to testify at length about Scott's prior police contacts. Scott had denied being a gang member to a probation officer. He was with another Blood gang member when they were shot at, and during the investigation the police called Scott's cell phone and heard the message, "Meadowview niggas taking care of business. Bring it." Scott was shot in the head during a "sideshow," an event where people jump into the street or a parking lot and dance. Scott was with a gang member when the car he was riding in was stopped and a stolen gun was found. At another vehicle stop, a red rag was tied around the steering wheel and narcotic packaging was found in the vehicle.

During MacLafferty's testimony, the trial court repeatedly admonished the jury that this hearsay evidence was admitted only to show the basis of the expert's opinion, not for the truth of the matter. The court told the jury that the expert was not vouching that this evidence was true. We presume the jury followed the court's instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139, ["we and others have described the presumption that jurors understand and follow instructions as '[t]he crucial assumption underlying our constitutional system of trial by jury.' [Citations.]"].)

Moreover, the evidence was undisputed that Scott fired multiple shots at Singh and Sarente at relatively close range. This evidence alone shows Scott's intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 743; People v. Lee (1987) 43 Cal.3d 666, 679; People v. Campos (2007) 156 Cal.App.4th 1228, 1244; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225.)

Neither defendant has carried his burden to show the failure to bifurcate trial on the gang enhancement caused prejudicial error.

III

Admission of Letters and Other Writings

Scott contends the admission, over his objection, of numerous writings taken from his cell to support the expert opinion that he was a gang member was highly prejudicial and requires reversal. He contends that allowing the expert to read a substantial amount of hearsay that painted him as a violent gangster, and that had little or no relevance to the case, tainted the fairness of the trial and denied him due process.

There were different categories of writings seized from Scott's cell and all were admitted over objection by defense. Letters to Scott from Clark-Johnson were admitted during Clark-Johnson's testimony and they are not at issue here. The categories of writings at issue are letters to Scott from others, a "gang code," and decoded phrase, and rap lyrics.

Scott repeatedly objected to the admission of the writings seized from his jail cell. Due to the variety of writings at issue and the trial court's failure to rule systematically as to each item or category, the rulings lack specificity and clarity. Indeed, it appears that even the trial court became confused as to which category of challenged evidence it had ruled on.

Before trial, Scott objected to admission of the writings taken from his cell on the basis of a confrontation violation, and later he objected on grounds of relevance and Evidence Code section 352. The court indicated it would review the writings and asked the People to identify those it wished to introduce. Later, the court again indicated it would review the letters. Subsequently, the court ruled the writings to Scott from Clark-Johnson were admissible if a proper foundation were laid. The court ruled the People could mention these letters in opening statement.

Just before opening statement, Scott objected to a rap lyric the People intended to read. The prosecutor explained she had it on a slide, but was not going to read it. Based on the prosecutor's representation that an adequate foundation could be laid at trial, the court permitted her to mention the rap lyrics in her opening statement. She did, stating that law enforcement found letters and rap lyrics referencing Meadowview Bloods in Scott's jail cell.

During trial, when Scott renewed his objection to the writings, the court agreed with the People's position that their admissibility had already been established. In response to the defense objection that the presence of the purported "gang code" was irrelevant because it was discovered two years after the crime, the court instructed the People to present other gang evidence first before this evidence could be admitted. A review of the case file indicated that the court had reserved its rulings on the writings taken from Scott's cell that were not attributed to Clark-Johnson. The court found the issue was whether the writings should be excluded under Evidence Code section 352. It ruled that if there were evidence of a continuum of gang involvement from the time of the crime until the writings were found, the court would admit the additional writings. Scott objected again to admission of the writings on the grounds of Evidence Code section 352, the Fifth Amendment, and due process. He objected to anything that was not written by him and because the writings were made over two years after the shooting. He argued the writings covered many topics and could confuse the jury.

Before MacLafferty testified about the writings, Scott raised another objection which was overruled. In giving his opinion as a gang expert, MacLafferty read lengthy portions of letters from unknown senders and rap lyrics found in Scott's cell. During MacLafferty's testimony, the court admonished the jury that the detective was relying on the writings to form his opinion, but he did not vouch for their truth. In addition, the court instructed the jury with CALCRIM No. 360 on the use of this evidence.*fn11 Despite this limitation on use, in closing argument, the People relied on some of the rap lyrics to argue the murder was deliberate and premeditated.*fn12 The writings were also admitted into evidence as exhibits.

"On direct examination, an expert may give the reasons for an opinion, including the materials the expert considered in forming the opinion, but an expert may not under the guise of stating reasons for an opinion bring before the jury incompetent hearsay evidence. [Citation.] A trial court has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 416.)

In stating his opinions that the crime was gang related and Scott was a gang member, MacLafferty was permitted not only to refer to the letters and rap lyrics found in Scott's jail cell, but to read extensively from them. The author or authors of the letters was unknown. While MacLafferty opined Scott wrote the lyrics due to the reference to Mad Mike, his authorship was not established.

We recognize that a trial court is no longer required to expressly weigh prejudice against probative value on the record in deciding whether to admit evidence over an Evidence Code section 352 objection. (People v. Williams (1997) 16 Cal.4th 153, 214.) "All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352. [Citation.]" (People v. Williams, supra, 16 Cal.4th at p. 213.) The record shows that defense counsel cited Evidence Code section 352 and invoked the "talismanic word 'prejudice'" (People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on another point in People v. Hill (1998) 17 Cal.4th 808, 823, fn. 1), and the court expressly stated the issue of admission was governed by Evidence Code section 352. Thus, the record shows "the trial court had in mind the appropriate analytic framework for passing on the admissibility of the evidence, that the court was therefore aware of the need to weigh the evidence under section 352, and thus that it must have done so." (People v. Padilla, supra, 11 Cal.4th at p. 924.)

Although we understand that the rule requiring an express weighing on the record has been relaxed, we note that, in this case, an express weighing by the trial court would have greatly aided our review in determining whether the court erred in admitting the writings. In particular, an express weighing might have shed light on why the trial court believed it was appropriate to admit the writings in their entirety, without redaction.*fn13

We review the trial court's ruling on the admission of evidence for an abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547.) The writings, both the letters from unknown senders and the rap lyrics, had some probative value. As MacLafferty explained, each contained references to the Meadowview Bloods and gang activity that was probative as to the gang enhancement. This probative value, however, was reduced because MacLafferty had already provided ample evidence, in the form of Scott's prior contacts and photographs showing him and Clark-Johnson throwing gang signs, that Scott was a Meadowview Blood. More significantly, the writings, particularly the rap lyrics, contained more than mere references to gangs.*fn14 MacLafferty was unable to explain most of the writings beyond the gang references and therefore could not have relied on them in forming his opinions. The prejudicial effect of these writings came not only from the depictions of violent gang life and guns, but also from language that most would consider racist and sexist.*fn15 For the limited purpose for which these writings were admitted, the probative value of those portions of the rap lyrics that did not refer to gang affiliation was substantially outweighed by the prejudicial effect. (Evid. Code, § 352.)

Thus the trial court erred in admitting the writings in full. The court should have permitted MacLafferty to testify only that his opinion was based in part on writings found in Scott's cell that contained gang references, or, at minimum, should have ordered the writings redacted to narrow the focus to the portions that were probative of gang affiliation, thereby limiting their prejudicial effect.

Although we have found the trial court erred in admitting the entirety of the writings, we find the error was harmless. We reject Scott's assertion that the proper test is the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24, [17 L.Ed.2d 705, 710-711]; namely, whether the error was harmless beyond a reasonable doubt. "[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error. [Citation.]" (People v. Benavides (2005) 35 Cal.4th 69, 91.) Since there was a permissible inference to be drawn from the evidence, its erroneous admission did not violate due process. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919-920; see People v. Albarran, supra, 149 Cal.App.4th at pp. 229-230.)

Scott contends the jury may have used the gang evidence that reflected on his character to find he had the intent to kill. Scott's intent to kill, however, was amply shown by the manner of the killing regardless of his gang status. Scott ordered Clark-Johnson to chase his opponent Rumph at high speeds, while Scott waved a gun out the window. When he saw Sarente, with whom he had quarreled, he fired several shots at fairly close range at two defenseless bicyclists. Scott continued to fire even after Singh fell, refuting any suggestion that he fired only as a warning or to scare them. The court repeatedly instructed the jury on the limited use of this evidence and we presume the jury followed the court's instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) Finally, the jury's not true finding on the gang enhancement indicates the jury was not overwhelmed by the gang evidence, as Scott claims, but was able to analyze the facts as to each charge. Based on our review of the entire record, we conclude it is not reasonably probable that Scott would have received a more favorable result absent the error in admitting the writings in full. (People v. Watson (1956) 46 Cal.2d 818, 836.)

IV

Instructional Error: Accomplice Testimony

A. CALCRIM No. 334

The trial court indicated there was evidence that Clark-Johnson was an accomplice and it would instruct the jury accordingly. Clark-Johnson requested tailoring the standard instruction that an accomplice's testimony should be viewed with distrust and required corroboration so that such instruction did not apply to his testimony in his own defense. The trial court agreed.

The written version of CALCRIM No. 334 given to the jury read:

"Before you may consider the statement or testimony of Ian Johnson as evidence against the defendant Michael Scott, you must decide whether Ian Johnson was an accomplice to that crime. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if:

1. He or she knew of the criminal purpose of the person who committed the crime;

AND

2. He or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime.

The burden is on the defendant to prove that it is more likely than not that Ian Johnson was an accomplice.

An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he or she is present at the scene of the crime, even if he or she knows that a crime will be committed or is being committed and does nothing to stop it.

If you decide that a declarant or witness was an accomplice, then you may not convict the defendant Michael Scott of the murder charged in Count 1 or of a lesser offense, nor may you find true any further allegations against him based on his or her statement or testimony alone. You may use the statement or testimony of an accomplice to convict the defendant only if:

1. The accomplice's statement or testimony is supported by other evidence that you believe;

2. That supporting evidence is independent of the accomplice's statement or testimony;

AND

3. That supporting evidence tends to connect the defendant to the commission of the crime.

Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact mentioned by the accomplice in the statement or about which the accomplice testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.

Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.

Insofar as defendant Ian Johnson's testimony or statements are considered in connection with the charges against Mr. Johnson himself, the supporting evidence requirement does not apply."

When the court orally instructed the jury, it slightly modified the written instruction, stating in pertinent part: "Any statement or testimony of an accomplice that tends to incriminate the defendant--meaning the defendant Scott--should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence."

Clark-Johnson contends the written instruction failed to tell the jury that the advisement to view an accomplice's testimony with caution did not apply when his testimony was used to assess his own guilt. He concedes the oral instruction made this point, but relies on the rule that where oral and written instructions conflict, the written instruction controls. (People v. Wilson (2008) 44 Cal.4th 758, 803.)

"When the evidence at trial would warrant the jury in concluding that a witness was an accomplice of the defendant in the crime or crimes for which the defendant is on trial, the trial court must instruct the jury to determine if the witness was an accomplice." (People v. Hayes (1999) 21 Cal.4th 1211, 1270-1271.) The court must further instruct the jury that the testimony of an accomplice is to be viewed with caution and that the defendant may not be convicted on the basis of an accomplice's testimony unless it is corroborated. (People v. Hayes, supra, 21 Cal.4th at p. 1271.) Where a co-defendant's testimony exculpates himself but incriminates his co-defendant, the jury should be instructed to view the testifying co-defendant's testimony with caution only as it applies to the other defendant. (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 104-105; People v. Alvarez (1996) 14 Cal.4th 155, 217.)

"'[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 192.) Viewing the instructions as a whole, we find no error. CALCRIM No. 334 began by telling the jury how to consider Clark-Johnson's testimony as evidence against Scott. The advisement to view an accomplice's testimony with caution applied only to an accomplice's statement or testimony "that tends to incriminate the defendant." By its own terms, therefore, the instructions on how to view an accomplice's testimony would not apply to Clark-Johnson's testimony in his own defense, only to his testimony against Scott. Further, in the context of the entire instruction, it was clear the references to "the defendant" referred to Scott.

Moreover, in reading the instructions, the court clarified that the cautionary advisement applied only to testimony against Scott. There is no evidence the jury was confused about the slight difference between the written and oral instructions or found an inconsistency; it asked no question about the difference.

"A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]" (People v. Cross (2008) 45 Cal.4th 58, 67-68.) Since the reasonable interpretation of the instructions, taken as a whole, was that the special treatment of accomplice testimony applied only to Clark-Johnson's testimony against Scott, Clark-Johnson has failed to carry this burden.

B. CALCRIM Nos. 301 and 334

In discussing jury instructions, the parties and the trial court considered amendments to CALCRIM No. 301, which informs the jury that the testimony of one witness is sufficient to prove a fact. The concern was that although the testimony of an accomplice requires corroboration, Clark-Johnson's testimony, even if he were an accomplice, did not require corroboration when applied to his own defense. The parties discussed different possibilities to make this point and the trial court indicated it would "mess with" the instruction "a little bit."

The court instructed the jury with a modified CALCRIM No. 301 as follows: "With one exception, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence. The exception concerns the testimony of Ian Johnson if you determine that he was an accomplice." The court then told the jurors that instruction No. 334 should guide them in determining how to treat Clark-Johnson's testimony as to Scott, depending on whether they found Clark-Johnson to be an accomplice.

Clark-Johnson contends the CALCRIM Nos. 301 and 334 instructions were conflicting and confusing. While CALCRIM No. 334 told the jury Clark-Johnson's testimony did not require corroboration to the extent it was considered on the question of his guilt, he contends CALCRIM No. 301, which declared an exception for his testimony, suggested his entire testimony required corroboration.

"In determining the correctness of jury instructions, we consider the instructions as a whole. [Citation.] An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. [Citation.]" (People v. Campos, supra, 156 Cal.App.4th at p. 1237.)

This is not a case like People v. Maurer (1995) 32 Cal.App.4th 1121, cited by Scott, in which the jury was given directly conflicting instructions on motive. In Maurer, defendant was charged with misdemeanor child annoyance (§ 647.6) and the jury was properly instructed that it must find defendant's acts or conduct were "motivated by an unnatural or abnormal sexual interest in" the victim. (Maurer, supra, 32 Cal.App.4th at p. 1125.) The jury was also instructed, however, that "Motive is not an element of the crime charged and need not be shown." (Maurer, supra, at p. 1126.) Since these instructions directly conflicted on whether motive had to be proven, this court found it was error not to exclude section 647.6 from the general instruction that motive was not an element of the crime, and the error was prejudicial. (Id. at pp. 1126-1132.)

There was no similar direct conflict between the instructions here. In CALCRIM No. 334, the court made clear that no corroboration was required for Clark-Johnson's testimony as to his guilt. "Insofar as defendant Ian Johnson's testimony or statements are considered in connection with the charges against Mr. Johnson himself, the supporting evidence requirement does not apply." The court referred to this instruction immediately after the court noted the exception to the rule that a fact may be proved by the testimony of a single witness. We disagree that the instructions were confusing. If the jury were to have required corroboration for Clark-Johnson's testimony on his own behalf, they would have done so only by disregarding explicit instruction from the court. Accordingly, we find no "reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Smithey (1999) 20 Cal.4th 936, 963.)

DISPOSITION

The judgment is affirmed.

We concur: BLEASE , Acting P. J. NICHOLSON , J.


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