(Super. Ct. No. 06F07215)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
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.
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.
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 ...