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The People v. James Tyler Roots

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


October 6, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES TYLER ROOTS, JR., DEFENDANT AND APPELLANT.

(Super. Ct. No. SF107537A)

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

P. v. Roots

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The defendant, James Tyler Roots, Jr., shot and killed Obed Pigg. Convicted by jury of murder and other crimes, he appeals. He contends: (1) his trial was unfair because of an unsupported motive theory presented by the prosecution, (2) several errors resulted from the joinder of a gang participation count, (3) the prosecutor committed misconduct, (4) the asserted errors were prejudicial cumulatively, even if not so individually, and (5) the sentencing order was flawed. Other than two errors in the sentencing order, we find no prejudicial error. Therefore, we modify and affirm.

FACTS

There were two primary types of evidence upon which the prosecution relied to convict the defendant: motive evidence and eyewitness evidence.

Motive Evidence

On October 5, 2007, two weeks before Pigg was killed, about 5:00 o'clock in the evening, the defendant robbed Pigg at Stribley Park. Pigg and his girlfriend, Tammy Samuels, had gone there in Pigg's green Cadillac to watch Samuels's son play football. Pigg had at least $300 in money for rent in his pocket. Pigg parked the Cadillac, and Samuels went across the park, while Pigg stayed by the Cadillac to talk to a friend. The defendant pulled a gun on Pigg, and Pigg attempted to keep his friend between him and the defendant. Eventually, the defendant took the money Pigg was carrying. The defendant also pulled the trigger on the gun several times, making a clicking sound. Pigg fled in his Cadillac and picked up Samuels. He was angry and scared.

Samuels believed that she and Pigg went to bed around midnight that night.

During the night after the defendant robbed Pigg, someone shot at the residence of the defendant's mother (the Boyce residence) in the same neighborhood as Stribley Park. There was also evidence that the defendant lived at the residence. Several shots were fired and caused damage to the house, a vehicle in the driveway, and an adjacent house.*fn1

The next morning, Pigg took Samuels to Franklin High School for her son's football game. From a distance, Samuels saw Pigg talking to several men, including Joe Boyce, the defendant's stepfather. The conversation lasted about five minutes, and Pigg left the group of men after giving Boyce a handshake and hug.

After the defendant robbed Pigg and someone shot at the home of the defendant's mother, Pigg and Samuels began getting phone calls, too numerous to keep track of.*fn2 Pigg became frightened, carrying a gun and saying that he was "not going to fear any man."

About a week after the defendant robbed Pigg, Samuels returned home late in the evening. Pigg was asleep on the couch. When she touched him, he was startled and jumped up with the gun.

Stockton Police Department Detective James Ridenour testified as an expert on Stockton gangs. Detective Ridenour testified concerning indicia that the defendant is an active participant in the East Coast Crips gang, based in southeast Stockton. The defendant has East Coast Crips gang tattoos, has been arrested with another East Coast Crips gang member, and has been identified by other East Coast Crips gang members as a fellow gang member. He is well-respected in that gang. Most directly, the defendant claimed to be an active East Coast Crips gang member when he was booked into jail after being arrested for Pigg's murder.

Detective Ridenour testified that respect is the most important thing to gang members. They tend to retaliate violently for any perceived lack of respect.

Yuronda Breed, who has a child with the defendant, told an officer one day after Pigg's murder that the defendant had told her several days earlier that he was having "serious problems" with Pigg.

Eyewitness Evidence

On October 19, 2007, Pigg drove in his Cadillac to the Smoke Shop, owned by Daryl Walters. Soon after Pigg entered the Smoke Shop, someone in a dark, hooded sweatshirt followed him into the store and shot and killed him, firing at least 10 shots. The assailant spun and ran from the store. He disappeared into the neighborhood, but, before he did, several people saw him. He stashed the hooded sweatshirt and the gun in a backyard. The defendant could not be ruled out as a source of DNA found on the sweatshirt and gun.

Several witnesses who saw the assailant provided statements and testimony concerning the assailant's identity. We discuss each of the witnesses.

Daryl Walters

Walters was shown a photo lineup that had six photos. The defendant's photo was in the number four position. Walters testified that he recognized the defendant's photo from his picture in the newspaper. When asked whether the photo in the newspaper looked like the assailant who came into his store, Walters responded: "I guess so. Yes. Yes."

Hilda Loza

Hilda Loza owned a hair salon next door to the Smoke Shop. She saw a man in a blue, hooded sweatshirt walk past her business. He glanced in toward her and kept walking. She saw the man walk into the Smoke Shop, and then she heard gunshots.

Shown the photographic lineup, Loza looked at it for about 16 seconds before tapping on the defendant's photo (number four in the lineup) and saying: "Oh, my God. Oh, my God. . . . That's him." Her demeanor then changed as she became nervous and frightened and started backpedaling, saying that it is between photographs four and five. She noted that the eyes and complexion of number four were more like the person she saw, but the facial hair was more like number five's. She did not remember seeing a tattoo on the person's face as depicted in the defendant's photo.

Iisha Willis

Walters's fiancee, Iisha Willis, was in her car behind the Smoke Shop when she heard the shots fired. As she drove around the corner, she saw the assailant in the blue, hooded sweatshirt. Thinking this man shot Walters, Willis followed the assailant in her car. The assailant took his hood off and looked at her. He then took off the sweatshirt and continued running away from the Smoke Shop. Willis followed him for a short distance, yelling at him, before he disappeared over a fence.

When she was shown the photo lineup, Willis stated that the persons in photos one and two had faces shaped similar to the assailant's face and that number one matched the assailant's complexion. She did not identify the defendant's picture included in the lineup as number four.

At trial, Willis identified the defendant as the man she followed in her car. It was the first time she saw him in person since the day of the murder.

Officer Raquel Betti

While she was conducting an investigation in a nearby bar, Officer Raquel Betti heard a female outside screaming and cussing. She went outside and saw Willis in her car following a man in a blue, hooded sweatshirt. She had only a side view of the man and could not positively identify the man in the photo lineup. She could only say that the defendant's photo was consistent with the man she saw. At trial, she said that the defendant looked "just like" the man she saw.

Armando Gutierrez

Armando Gutierrez heard the gunshots and saw a man running toward them in a blue, hooded sweatshirt. Armando identified the defendant when shown the photo lineup later that day. A trial, however, Armando could not identify the defendant as the man he saw.

Theresa Gutierrez

Armando's mother, Theresa Gutierrez was with Armando when they saw the assailant. She was unable to identify the defendant from the photo lineup.

Elsa Castaneda Gutierrez

Armando's sister, Elsa Castaneda Gutierrez, was also with Armando and their mother when they heard the gunshots and saw the assailant. She made eye contact with the man. Elsa identified the defendant in the photo lineup. She also identified the defendant at trial.

Maxx Chavez

Maxx Chavez heard the gunshots and saw a man in a black, hooded sweatshirt run away from the Smoke Shop. When shown the photo lineup, Chavez pointed to a few of the pictures but did not specifically identify the defendant. About a week after the murder, however, Chavez saw the defendant's picture on the television news and recognized him as the assailant. At trial, Chavez identified the defendant as the assailant.

Patricia Solano

Patricia Solano saw the assailant walk through her backyard. She tentatively identified the defendant from the photo lineup, saying the defendant's photo looked like the man she saw.

PROCEDURE

Pursuant to a consolidated indictment and information, a jury found the defendant guilty of the murder of Obed Pigg, Jr. (Pen. Code, § 187),*fn3 possession of a firearm by a felon (§ 12021, subd. (a)), and criminal street gang participation (§ 186.22, subd. (a)), all committed on October 19, 2007. The jury also found defendant guilty of transportation of cocaine (Health & Saf. Code, § 11379), possession of cocaine with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)), and possession of a firearm by a felon (§ 12021, subd. (a)), all committed on October 23, 2007, the day the defendant was arrested for Pigg's murder.*fn4 The jury also found true various arming, personal firearm use, and on-bail enhancements.

In a bifurcated proceeding, the defendant admitted prior strike and prior prison term allegations. (§§ 667, subd. (d), 667.5, subd. (a), 1170.12, subd. (b).)

The trial court sentenced the defendant to a determinate state prison term of eight years, followed by an indeterminate term of 70 years to life.*fn5

DISCUSSION

I

The Prosecution's Motive Theory

The defendant contends that the prosecution's motive theory lacked evidentiary support and therefore he was subjected to an unfair trial. In support of this contention, defendant argues that (A) the evidence introduced to establish a motive was irrelevant, (B) evidence of an uncharged robbery and gang involvement was overly prejudicial under Evidence Code section 352, and (C) the prosecutor's reliance on the motive theory resulted in a denial of due process. None of these contentions has merit.

A. Relevance

1. Relevance to Motive

Before trial, the prosecution stated its intention to proffer evidence that the defendant had a motive of retaliation when he shot and killed Pigg. The defendant objected to the motive evidence, so the trial court held an Evidence Code section 402 hearing. During the hearing, the prosecution presented evidence of (1) the defendant's robbery of Pigg in Stribley Park, (2) the shooting of the Boyce residence, (3) Pigg's demeanor and behavior between the robbery and the murder, and (4) Detective Ridenour's expert assessment of the gang-retaliation motive.

After the hearing, the trial court sustained the defendant's objections to some of the specific evidence, including hearsay. However, the court found the motive theory both relevant and supported by substantial evidence. Therefore, it ruled that the prosecution could introduce evidence establishing the defendant's motive.

In addition to admitting the evidence summarized above concerning motive, the trial court gave the jury a modified version of CALCRIM No. 375. The instruction informed the jury that the evidence of the Stribley Park robbery was offered for the purpose of showing motive for the murder. It directed the jury that it could not use the evidence to conclude that the defendant had a bad character or a disposition to commit a crime. The court also instructed the jury, using CALCRIM No. 370, that a motive is a factor tending to show that the defendant was guilty and the lack of a motive is a factor tending to show that the defendant was not guilty.

The prosecutor presented the motive theory to the jury during opening statements and argued in her closing argument that the Stribley Park robbery, the shooting of the Boyce residence, and the gang evidence concerning respect and retaliation was evidence that the defendant had a motive to kill Pigg. She specifically told the jury that the "defendant believe[d] his house was shot up by Obed Pigg," and she concluded, "That's the motive."

In a motion for new trial, the defendant argued that the murder verdict must be reversed because there was no evidentiary support for the motive theory used by the prosecution because there was no evidence that the defendant believed that Pigg committed the shooting of the Boyce residence. The court, however, ruled that there was circumstantial evidence supporting the motive theory and that the evidence was properly admitted because it was more probative than prejudicial.

The defendant contends on appeal that the evidence concerning motive was irrelevant because there was no evidence that he believed Pigg committed the shooting at the Boyce residence. Without that element, argues the defendant, none of the motive evidence had a tendency to prove a motive or to prove the defendant's guilt. We agree with the trial court that there was circumstantial evidence that the defendant believed that Pigg committed the shooting.

"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) "'Evidence is relevant if it tends "'logically, naturally and by reasonable inference' to establish material facts such as identity, intent, or motive."' ([citation]; see Evid. Code, § 210.)" (People v. Lee (2011) 51 Cal.4th 620, 642-643.) "The trial court retains broad discretion in determining the relevance of evidence. [Citation.]" (People v. Garceau (1993) 6 Cal.4th 140, 177.)

Here, the evidence presented by the prosecution and admitted by the court tended to show logically, naturally, and by reasonable inference that the defendant had a motive to kill Pigg. The defendant robbed Pigg; someone shot up the residence of the defendant's mother; and gang members such as the defendant retaliate for such perceived disrespect.

The defendant argues that the insuperable weakness in this chain is that there was no evidence that the defendant believed Pigg committed the shooting of the Boyce residence. To the contrary, although there was no direct evidence of the defendant's belief, there was circumstantial evidence of that belief. This circumstantial evidence was that the shooting of the Boyce residence happened just hours after the defendant robbed Pigg. Samuels and Pigg began getting phone calls that, along with the defendant's robbery of Pigg, caused Pigg to be very fearful and paranoid. And the defendant told Yuronda Breed that he was having serious problems with Pigg.

At oral argument, the defendant suggested that we cannot consider his statement to Breed because that evidence was not before the trial court when the court ruled on the motion to exclude the motive evidence. While it is generally true that consideration of whether the trial court erred in ruling on an evidentiary motion is limited to what the court knew at the time of the ruling (see People v. Tolliver (2008) 160 Cal.App.4th 1231, 1237, fn. 9), we uphold a judgment if it is correct for any reason (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1119, fn. 4). Therefore, we need not disregard the evidence that the defendant told Breed he had serious problems with Pigg. Considered together, this evidence was sufficient to support a reasonable inference that the defendant believed Pigg committed the shooting at the Boyce residence.

The defendant argues that there was no evidence connecting Pigg to the shooting of the Boyce residence -- no one saw it happen; Pigg was probably home in bed; and the gun that Samuels observed Pigg carrying was not involved in the shooting. However, whether or not Pigg actually committed the shooting is not at issue; instead, the defendant's belief that Pigg did it is the motivating factor.

The defendant contends there is evidence that the defendant did not believe Pigg committed the shooting -- Pigg and the defendant's stepfather spoke the day after the shooting and parted on friendly terms; the shooter also hit a nearby house; such shootings happened frequently in the neighborhood; and there was no admissible evidence of word on the street that the defendant believed Pigg was the shooter. This evidence, however, merely created a factual issue for the jury to resolve; it did not conclusively negate the reasonable inference that the defendant believed Pigg was the shooter.

Since the evidence tended to show that the defendant had a motive to kill Pigg, the trial court did not abuse its discretion in admitting that evidence.

2. Other Relevance Arguments

After arguing that the evidence presented to show motive (Stribley Park robbery, shooting of Boyce residence, Pigg's state of mind, the defendant's "serious problems" with Pigg, and gang expert testimony) failed to show motive and was therefore irrelevant and inadmissible, the defendant also argues that the evidence was not otherwise relevant. With this argument, the defendant seeks to cover all the bases in establishing that the evidence should not have been admitted. Because we conclude that the evidence tended to establish a motive and was therefore relevant and admissible, we need not consider the defendant's remaining arguments against admissibility of the motive evidence to the extent they merely attack reasons other than motive for admitting the evidence. However, two of the defendant's arguments require additional discussion -- that (1) Pigg's state of mind and (2) the gang expert testimony were irrelevant to the motive theory. Neither argument has merit.

The defendant claims that the evidence of Pigg's state of mind should not have been admitted because, in the defendant's words, "Pigg's apparent fear of defendant on October 5 had no logical connection to the murder two weeks later. It didn't tend to show defendant had a homicidal motive or otherwise identify him as the killer." We disagree. The relevance of Pigg's state of mind, his fear and paranoia, considered together with the evidence of phone calls and the defendant's "serious problems" with Pigg, supported a reasonable inference that the defendant believed Pigg committed the shooting at the Boyce residence. In temporal proximity to the Stribley Park robbery, someone shot up the Boyce residence and Samuels and Pigg received numerous phones calls leading to Pigg's paranoia and fear. Because this state of mind evidence was relevant to whether the defendant believed Pigg committed the shooting, which the defendant must concede is relevant to the motive theory, the state of mind evidence was relevant and admissible.

Concerning the gang expert testimony, the defendant argues that it was not relevant because the prosecution did not establish any logical connection between the gang expert testimony and the motive theory. To the contrary, the gang expert testified that the defendant was an active gang member and that a gang member would feel compelled to respond violently to any perceived disrespect, such as the shooting of the Boyce residence. Therefore, the gang expert testimony was relevant to the motive theory. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [gang evidence may be relevant to motive].)

B. Evidence Code section 352

The defendant contends that, "with no more than minimal probative value, the uncharged robbery and gang evidence carried an unacceptable risk of prejudice." (Unnecessary capitalization omitted.) We disagree because the probative value of the uncharged robbery and gang evidence was not minimal.

Our Supreme Court has stated that admission into evidence of an uncharged offense, such as the Stribley Park robbery here, "'requires extremely careful analysis.'" (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) "'Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.'" (Ibid., italics omitted.) Applying this standard, a trial court abuses its discretion if it admits evidence of an uncharged crime that is not necessary to establish a disputed factual issue. (See People v. Leon (2008) 161 Cal.App.4th 149, 169 [trial court abused its discretion by admitting evidence of the defendant's prior robbery to show gang participation when the record already contained "overwhelming evidence" establishing that fact].)

Here, the evidence of the Stribley Park robbery was neither cumulative nor insubstantial. It was part of a body of evidence introduced to show that the defendant had a motive to kill Pigg. Without the robbery evidence, the other motive evidence would not have tended to show that the defendant had a motive to kill. Therefore, it was properly admitted, even over an Evidence Code section 352 objection.

Likewise, the gang expert testimony was neither cumulative nor insubstantial. Detective Ridenour testified concerning how a gang member, such as the defendant, would react if he believed someone had shown disrespect to him. This testimony was essential to the prosecution's motive theory and was therefore properly admitted.

C. Due Process

The defendant contends: "Because the court mistakenly allowed the prosecutor to package her case with an irrelevant, prejudicial motive theory, the trial itself was fundamentally unfair and violated defendant's right to due process. [Citations.]" Since there was no mistake in allowing the prosecutor to pursue the motive theory, the defendant's contention that the trial was unfair and violated his due process rights is without merit.

Because we find no error in the admission of the motive theory evidence, we need not consider the defendant's extensive prejudice analysis.

II

Gang Participation Count

The defendant next focuses on the gang participation count. (§ 186.22, subd. (a).) Concerning that count, he contends: (1) the trial court abused its discretion by denying the defendant's motion to sever the trial of the gang participation count from the murder count; (2) there was insufficient evidence to sustain the gang participation conviction; (3) the trial court misinstructed the jury on the gang participation count; and (4) the gang participation crime cannot be committed by a single perpetrator acting alone. We conclude that none of these contentions has merit.

A. Motion to Sever

In a pretrial motion, the defendant asked the trial court to sever the gang participation count from the murder count for purposes of trial. The trial court denied the motion, mainly because the defendant's gang membership was relevant to the prosecution's motive theory. After trial, the defendant asserted in a new trial motion that denying the severance motion caused prejudice. The court denied the motion.

When two or more offenses are charged, the trial court, "in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (§ 954.)

"Refusal to sever on a defendant's motion might be an abuse of discretion where '(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all; and (4) any one of the charges carries the death penalty.' [Citations.] [¶] On appeal, we examine the ruling on the record in which it was made. [Citation.] 'The burden of demonstrating that . . . denial of severance was a prejudicial abuse of discretion is upon him who asserts it . . . .' [Citation.] A party seeking severance must 'clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 508.)

The defendant bases his severance argument on his assertion that the gang expert testimony was irrelevant to the murder count. We have rejected that assertion.

"In cases not involving the gang enhancement, . . . evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]" (People v. Hernandez, supra, 33 Cal.4th at pp. 1049, original italics.) When evidence of gang membership is admissible on an issue such as motive, however, "any inference of prejudice would be dispelled . . . ." (Id. at pp. 1049-1050.)

Here, the gang membership evidence was relevant to the prosecution's motive theory; therefore, the defendant sustained no prejudice from the trial court's denial of his motion to sever the gang participation count from the murder count because the evidence concerning the defendant's gang membership would have still been admissible.

B. Sufficiency of Evidence

The defendant contends there was insufficient evidence to convict him on the gang participation count. Specifically, he claims there was no evidence that (1) he had knowledge of the gang's pattern of criminal activity and (2) he furthered felonious gang conduct. We disagree. Reasonable inferences establish the knowledge element, and the defendant's own crimes establish the felonious-conduct element.

Section 186.22, subdivision (a), the substantive gang participation statute, states: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by [imprisonment] . . . ." (Italics added.) The italicized text emphasizes the two elements at issue.

Detective Ridenour, the gang expert, has "assisted on a couple of East Coast Crips crimes . . . ." He was familiar with the crimes committed by the gang.

Concerning the criminal activities of the East Coast Crips, Detective Ridenour testified that East Coast Crips, which included 26 documented members, control their territory by force and violence. The primary activities of the East Coast Crips include robberies, stolen vehicles, possession of weapons, drug sales, and shootings.

Richard Atkins, a documented East Coast Crips member, was convicted of shooting at an occupied motor vehicle and being a felon in possession of a firearm, both committed in 2003. Stevie Wilson, also an East Coast Crips member, was convicted of possession of a controlled substance for sale, committed in 2004. Jarmaine Smith, another East Coast Crips member, was convicted of robbery, committed in 2007. Detective Ridenour did not know Atkins, Smith, or Wilson personally and did not know when or how they became gang members. He had no information that these three gang members had any contact with the defendant.

Detective Ridenour gave his opinion that the defendant is an active participant in the East Coast Crips. He based this opinion on the defendant's admission to being an East Coast Crips member, his gang tattoos, his identification as an East Coast Crips member by another member of the gang, and an arrest along with another East Coast Crips member. The defendant was observed in the presence of Frank Smith, another East Coast Crips member in 2006. Detective Ridenour testified that the defendant is a "well-respected East Coast Crips member."

In 2003 and 2004, the defendant claimed to be an active member of the East Coast Crips, and, in 2006, he claimed to be an inactive member.

1. Knowledge Element

The defendant admitted to being an active member of the East Coast Crips in 2003 and 2004, and an inactive member in 2006. Detective Ridenour testified that East Coast Crips members engaged in a pattern of robberies, stolen vehicles, drug sales, and shootings and that crimes were committed by specific East Coast Crips members in 2003, 2004, and 2007. These facts, along with the defendant's obvious knowledge of his own crimes, support a reasonable inference that the defendant had "knowledge that [the East Coast Crips] members engage in or have engaged in a pattern of criminal gang activity . . . ." (§ 186.22, subd. (a).)

The defendant argues, however, that the none of the evidence "reasonably suggest[s] defendant knew about [the East Coast Crips's] pattern of robberies and vehicle thefts. Evidence of defendant's membership -- with or without 'some authority' -- wasn't enough." (Original italics.) To the contrary, the evidence of the defendant's long-standing membership in a gang that engaged in criminal activities, the specific evidence of some of those activities, and the evidence of the defendant's own criminal activities reasonably support the inference that the defendant had actual, subjective knowledge of this pattern.

2. Felonious-Conduct Element

The defendant argues that there was no evidence that Pigg's murder was gang related and, therefore, there could be no finding that, in murdering Pigg, he promoted, furthered, or assisted felonious criminal conduct. After the initial briefing was completed in this case, however, the Supreme Court filed an opinion rejecting the notion that the felonious-conduct element of the gang participation statute required a finding that felonious conduct be gang related. (People v. Albillar (2010) 51 Cal.4th 47, 51.) The court stated: "Does this offense include an unwritten requirement that the 'felonious criminal conduct' that is promoted, furthered, or assisted be gang-related? We conclude it does not." (Ibid.)

In supplemental briefing, the defendant concedes that Albillar decides this issue contrary to his position.

C. Jury Instruction

Referring to his argument that the felonious conduct must be gang related, the defendant argues in his opening brief that the jury instructions were deficient because they did not inform the jury of this aspect of the felonious-conduct element. In his supplemental briefing, the defendant concedes that this argument has no merit, based on People v. Albillar, supra, 51 Cal.4th at page 51.

D. Single Perpetrator

The defendant contends that there was insufficient evidence to sustain the gang participation count because the crime cannot be committed without the participation of other gang members. We conclude that the gang participation crime (§ 186.22, subd. (a)) can be committed alone and, therefore, the defendant's contention is without merit.

The defendant's contention is based on the grammar used in the gang participation statute, which, by its terms, applies to anyone "who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . ." (§ 186.22, subd. (a).) He argues that one cannot promote, further, or assist in conduct by "members" (plural) of the gang unless another gang member, other than the defendant, is involved in committing the crime.

Three cases have considered and rejected the essence of the defendant's contention. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1306-1308 (Sanchez) (Fourth App. Dist., Div. 2); People v. Salcido (2007) 149 Cal.App.4th 356, 365-366 (Salcido) (Fifth App. Dist.); People v. Ngoun (2001) 88 Cal.App.4th 432, 435-437 (Ngoun) (Fifth App. Dist.).)

In Ngoun, the court held that the gang participation crime can be committed by the perpetrator of the target crime and is not limited to those who aid and abet the target crime. (Ngoun, supra, at pp. 435-437.) "The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense 'contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (Id. at p. 436.)

In Salcido, the court concluded the trial court instructed the jury correctly that the defendant was guilty of the gang participation crime if he (1) committed the target crime himself or (2) aided and abetted its commission. (Salcido, supra, 149 Cal.App.4th at pp. 365-366.)

Finally, in Sanchez, the court followed Ngoun and Salcido and held that the gang participation crime applies when the defendant, acting without another gang member, committed the target crime. (Sanchez, supra, 179 Cal.App.4th at pp. 1306-1308.) In that case, another perpetrator participated in the target crime, but he was not a gang member. (Id. at p. 1303, fn. 2.)

We agree with Ngoun, Salcido, and Sanchez and conclude that one may promote and further the gang's felonious conduct by committing an offense without the participation of another gang member. Therefore, the defendant's murder of Pigg promoted and furthered the East Coast Crips gang's felony conduct, and the trial court did not misinstruct the jury.

III

Alleged Prosecutorial Misconduct

The defendant contends that the prosecutor engaged in a pattern of prejudicial misconduct during closing argument. He breaks this contention down into two categories: (a) statements concerning the defendant's motive and (b) statements concerning eyewitness identifications. We conclude that the defendant forfeited this contention by failing to object on the same grounds in the trial court. In any event, to the extent that some of the prosecutor's statements were unsupported by the evidence, there was no prejudicial misconduct. Furthermore, because there was no prejudice, we need not consider the defendant's contention that trial counsel was ineffective for failing to object.

We review a trial court's ruling regarding prosecutorial misconduct for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) "'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'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. Navarette (2003) 30 Cal.4th 458, 506.) Improper prosecutorial conduct includes suggesting the existence of facts outside the record or otherwise arguing facts beyond the evidence before the jury. (People v. Valdez (2004) 32 Cal.4th 73, 133 ["counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence"].)

"'A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.' [Citation.] A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored. [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.)

A. Motive Theory

The defendant finds fault in the prosecutor's argument concerning motive in four specific areas: (1) statements concerning word on the street, (2) phone calls to Samuels and Pigg, (3) gang evidence, and (4) a statement concerning the defendant's problems with Pigg.

(1) Word on the Street

During trial, the court excluded as hearsay any statements concerning what was being said on the streets about the defendant's anger with Pigg for shooting up the Boyce residence. Apparently, Walters and Breed were prepared to testify concerning such word on the street. In his testimony, Walters said that he had been threatened about testifying. In that regard, Walters stated that his testimony concerning the threats would get back to the person who made the threat because word on the street travels fast.

During closing argument, the prosecutor made several statements concerning word on the street. The defendant objected to just one, as will be noted.

After acknowledging that later investigation revealed that the bullets found after the shooting at the Boyce residence did not come from the gun Pigg possessed on the day he died, the prosecutor argued that the defendant did not know that fact on the day Pigg was killed. The prosecutor continued:

"But at that moment, ladies and gentlemen, that moment, everybody believed that Obed Pigg shot up [the defendant's] house, shot up his mama's house, shot up his house. And you just can't do that and be a[n] East Coast Crips member because that means your reputation is nothin', you are nothin'."

The prosecutor argued:

"Tammy Samuels tells us all about the phone calls from October 6th through October 19th, phone call after phone call after phone call. Everybody telling them keep Obed off, keep him out of the east side, keep him out of the south side, [the defendant] is looking for him. There wasn't anybody on the east side that didn't know about this.

"And you know what, when Daryl Walters testified yesterday, I asked him about that, word on the street. Once it's out there, you can never take it back. You can never, ever take it back. And what was out there on the street, there wasn't anybody that didn't think [the defendant] -- didn't know about the robbery on the fifth [referring to the Stribley Park robbery] and that they thought Obed Pigg shot up his mama's house and his house. And there's only one way, only one way to respond to that. And that's exactly what he did."

The defense objected to the prosecutor's statements concerning what callers told Samuels. The trial court sustained the objection and admonished the jury that the prosecutor's statements concerning what callers said to Samuels were stricken from the prosecutor's argument. The prosecutor also apologized to the jury for the misstatement of the evidence.

And later, the prosecutor referred again to the motive theory as support for the identification of the defendant as the killer:

"Who else is there? And who else had the motive? [The defendant], ladies and gentlemen. Because he is an East Coast Crips and his reputation was tarnished. And he had to retaliate for what occurred. You cannot shoot a gangster's house up and not expect retaliation. And that's exactly what happened on this day. And like we said, it doesn't matter if it's true or not, but once the word is on the street, you can't take it back. And the word on the street was that Obed Pigg had shot up his mother's house. And you can't take it back."

The defendant asserts that this line of argument -- that there was word on the street that Pigg shot up the Boyce residence -- was an improper argument because it was not based on the evidence. We reject the assertion because the defendant did not object to the prosecutor's argument based on this ground. The lone objection in this regard was the objection, sustained by the court, that there was no evidence concerning what was said to Samuels during the phone calls. Because there was no objection, the assertion is forfeited. (People v. Lopez, supra, 42 Cal.4th at p. 966.)

In any event, the argument was not improper. As noted above, there was sufficient evidence to support an inference the defendant believed that Pigg shot up the Boyce residence. Additionally, there was sufficient evidence to support an inference concerning the substance of the phone calls received by Samuels and Pigg. The Boyce residence was shot up within hours after the defendant robbed Pigg, and the defendant, a member of a local street gang, told Breed that he had serious problems with Pigg. The phone calls caused Pigg to be fearful and paranoid. From these facts the jury could reasonably infer that the word on the street was that Pigg shot up the Boyce residence and the defendant was after him for it. Therefore, even if the defendant had objected to the line of argument, the objection would have been properly overruled.

(2) Phone Calls

The defendant argues that the jury could not have heeded the trial court's admonition to disregard the prosecutor's statements concerning the substance of the phone calls to Samuels and Pigg. We disagree.

The comment concerning the content of the phone calls was brief and, as we have already stated, the jury could arrive at the same conclusion concerning those phone calls from reasonable inferences. We presume the jury followed the court's instructions to disregard the mistaken assertions of fact (see People v. Michaels (2002) 28 Cal.4th 486, 528); therefore, the defendant's argument is without merit.

(3) Gang Evidence

During the prosecutor's argument, she made four statements concerning the defendant's gang membership: (a) the defendant claimed to be an active East Coast Crips member when he was booked for Pigg's murder; (b) the defendant associates with other gang members; (c) the primary activities of the East Coast Crips includes murder; and (d) the defendant showed pride in controlling the east side by claiming gang membership at booking. The defendant contends that the prosecutor committed misconduct by relying on the gang evidence to support the motive theory, as well as by making these statements concerning the defendant's gang membership.

We reject this contention of prosecutorial misconduct because the defendant did not object on this ground in the trial court. (People v. Lopez, supra, 42 Cal.4th at p. 966.) In any event, the contention is without merit.

The defendant claims the prosecutor unfairly exploited the joinder of the murder and gang counts by using the evidence concerning the defendant's gang membership to argue motive. We have already rejected the argument that the counts were improperly joined and have determined that the prosecutor could validly rely on the defendant's gang status as a part of the motive theory.

(a) Claim of Gang Membership at Booking

Concerning the defendant's claim of gang membership at booking, the defendant notes that this evidence was admitted only to allow the jury to evaluate the gang expert's opinion and not for the truth of the matter. Detective Ridenour testified that, according to a report made in connection with the defendant's booking after his arrest for the Pigg murder, the defendant claimed active gang membership. Based on this and other evidence, the detective stated his opinion that the defendant was an active gang member when he murdered Pigg. After Detective Ridenour testified as a gang expert, the trial court informed the jury that it was to consider the reports upon which the detective relied only to evaluate the validity of the opinion, not for the truth of the matters stated in the reports.

Based on this limited admission of the defendant's statement that he was an active gang member, the defendant finds fault with the prosecutor's reference to that statement for the truth of the matter asserted. While it may be technically accurate that the prosecutor should not have referred directly to the truth of the defendant's statement, that statement directly supported Detective Ridenour's opinion that the defendant was an active gang member.

Furthermore, the jury was properly instructed concerning how to consider the statements in the reports relied on by Detective Ridenour, as noted, and was informed that the attorneys' statements were not evidence. Therefore, the prosecutor's statement was neither intemperate nor reprehensible (People v. Navarette, supra, 30 Cal.4th at p. 506) and was not misconduct.

(b) Hangs Around with Other Gang Members

Concerning the prosecutor's statement that the defendant "hangs around and associates with other members," that statement was supported by the evidence that the defendant once was arrested with another East Coast Crips member. The prosecutor's statement was a reasonable inference.

(c) Primary Activities Include Murder

In reviewing what Detective Ridenour said were the East Coast Crips's primary activities, the prosecutor misspoke. The detective stated that the primary activities included "robberies, stolen vehicles . . . , narcotic sales, possession of weapons, shootings." In her argument, the prosecutor listed "murder, possession of firearms and narcotics . . . ." On appeal, the defendant claims that mentioning murder constituted prosecutorial misconduct. To the contrary, it appears to have been merely a misstatement, substituting "murder" for "shootings" -- a misstatement that could have been easily corrected with a defense objection. Given the court's instructions concerning evidence and attorneys' statements, we see no possibility of prejudice.

(d) Pride in Controlling East Side

The prosecutor argued:

"On the day he is investigated for the murder in this case for possession of a weapon, for possession of narcotics, all this stuff is going on, you think that's a good time to say, hey, yeah, I'm a Crip? Only somebody that's proud, proud to be a Crip, walks into the San Joaquin County [Jail] after being arrested for murder and lets them know he's a Crip. That's somebody that's not afraid or ashamed or embarrassed to say he's a Crip. It's a proud moment. I'm arrested for murder and I'm going to let everybody know I'm a Crip. Because I not only control the east side, I want everybody to know inside just who I am."

Referring to this and his other claims concerning the prosecutor's statements concerning his gang membership, the defendant argues: "Each of these false claims strengthened otherwise weak proof of the gang participation count. More importantly, they strengthened the gang element of the prosecutor's homicidal motive theory. And here, the record shows how unlikely it is that the jury ignored [these] claims: The court itself mistook them -- points (a) and (d) -- for trial evidence." (Citations omitted.) To the extent the prosecutor's statements were erroneous, we disagree that they went very far to strengthen the case against the defendant. Between the identification testimony and the evidence validly supporting the prosecution's motive theory, the case against the defendant was not weak. Therefore, the defendant suffered no prejudice.

(4) Problems with Pigg

During trial, the defendant sought to exclude statements to the police from Breed who had said that "[the defendant] told her that he was having serious problems with Obed Pigg" and that she knew that the defendant was "seriously pissed" at Pigg. The trial court admitted the "serious problems" evidence as a party admission, but excluded the "seriously pissed" evidence because there was no foundation for that knowledge. In front of the jury, an officer testified that Breed had told him that the defendant said he had serious problems with Pigg.

During argument, the prosecutor stated that Breed was at the defendant's home on the Saturday before Pigg's murder and the defendant "was seriously pissed at Obed."

We find no misconduct in this characterization of the testimony that the defendant had serious problems with Pigg. That the specific wording "seriously pissed" was excluded as evidence does not invalidate the reasonable inference from the evidence of his admitted serious problems with Pigg that he was, in the words of the prosecutor, "seriously pissed."

B. Identification Testimony

The defendant contends that the prosecutor committed misconduct with respect to the identification testimony, including (1) improper rebuttal, (2) improper vouching using non-evidence, (3) improper use of character, and (4) misstatement of evidence. The defendant forfeited review of these issues on appeal by failing to object in the trial court. (People v. Lopez, supra, 42 Cal.4th at p. 966.) In any event, the claim of prejudicial misconduct is without merit.

(1) Improper Rebuttal

During his closing argument, defense counsel spent a considerable amount of time attacking the accuracy of the eyewitness identification, based on inconsistencies, police suggestiveness, and other factors. In response, the prosecutor also discussed the specific testimony of the witnesses, then added:

"All these people are liars? They are all wrong? No, they are not. They are good, honest, hard working Americans coming into this courtroom, seeking justice, and have their name[s] defamed like it was today, that they didn't know what they were doing and didn't know what they were saying, and they couldn't have been telling the truth. That's not fair. They did the right thing, okay. Throw -- if you throw it away, throw [Walters's] testimony away. But the rest of these people that came in here were just honest, hard working people, and they deserve better than to have their name slung through the mud."

The defendant complains on appeal that this argument was improper because "[t]he prosecutor's outrage was disingenuous: no one had called the named witnesses liars," and "[t]he prosecutor's indignant defense was not a 'reasonable and proper response to defense counsel's arguments.' (People v. Hill (1967) 66 Cal.2d 536, 565.)" (Fn. omitted.) We disagree. Defense counsel questioned the veracity of the prosecution's witnesses, and the prosecutor was entitled, in response, to argue in favor of their veracity.

(2) Improper Vouching

The defendant also contends that this response to defense counsel's argument constituted improper vouching. To the contrary, there was no prejudicial vouching.

"A prosecutor may make 'assurances regarding the apparent honesty or reliability of' a witness 'based on the "facts of [the] record and the inferences reasonably drawn therefrom."' [Citation.] But a 'prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.' [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 432-433.)

The defendant claims that, for the most part, there was no evidence about the various witness's citizenship ("Americans"), honesty ("honest"), or employment ("hard working"). Nor was there evidence that the witnesses were there "seeking justice."

Even assuming the prosecutor's reference to the witnesses as "good, honest, hard working Americans coming into this courtroom, seeking justice," did not refer to evidence from trial, there is no possibility that the defendant was prejudiced by this reference. It was puffery, and a reasonable jury would have recognized that, as this one surely did.

(3) Improper Use of Character

Referring to the prosecutor's statement that the witnesses were hard working, the defendant asserts that the jury would have recognized this as a swipe at the character of the defendant, who was an unemployed gang member. We disagree. The prosecutor made no such argument, and the statement was harmless.

(4) Misstatement of Evidence

The defendant also contends that the prosecutor misstated the climatic conditions when the defendant was arrested and, with that misstatement, attempted to improperly bolster the eyewitness identifications. The contention is without merit.

At trial, the officers who arrested the defendant for Pigg's murder testified that they did so about 7:00 or 7:30 on the evening of October 23, 2007. It was dark when the arrest was made. The defendant was wearing a dark-colored, hooded sweatshirt.

During closing argument, the prosecutor described the defendant's actions on the day of the murder: "He gets out of the car. Before he does though, what does he do on a nice bright, sunny day? He grabs a sweatshirt, puts on a sweatshirt. He puts the hood up." Later in closing argument, the prosecutor described the search of the defendant after his arrest four days after the murder. The prosecutor stated: "It's a nice sunny day in October. What does he have? A dark colored hoodie sweatshirt, black beanie, brown holster, a .32-caliber revolver loaded with five .32-caliber auto WW brand bullets . . . ."

On appeal, the defendant asserts that the prosecutor mischaracterized the evidence by saying it was a sunny day. He argues that "it was hardly insignificant, given the prosecutor's implicit analogy to the murder suspect . . . . For the prosecutor -- and jury -- this was another unfair way to bolster eyewitness identifications: creating circumstantial corroborating evidence where none existed."

To the contrary, the prosecutor's misstatement that the defendant was arrested on a sunny day was not prejudicial. Instead, it was a minor misstatement. If anything, it signaled to the jury that the prosecutor was not well-aware of the facts.

IV

Cumulative Impact Argument

The defendant argues, generally, that the cumulative impact of errors in the trial requires reversal. To the contrary, any errors were harmless, whether viewed in isolation or in combination.

V

Sentencing Issues

A. Presentence Credit

Because he was convicted of murder, the defendant was entitled to presentence credit only for actual time incarcerated. (§ 2933.2.) He was arrested on October 23, 2007, and he was sentenced on April 14, 2009, with no break in his incarceration. Therefore, he was incarcerated for a total of 540 days before sentencing.

At sentencing, the trial court awarded 534 days in presentence credit. Therefore, the judgment must be modified to award the full 540 days of presentence credit.

Additionally, no presentence credit was reflected in the abstract of judgment. That will be corrected by amendment of the abstract of judgment.

B. On-Bail Enhancement

The jury found an on-bail enhancement true as to each count on which the jury found the defendant guilty. The trial court added a consecutive two-year term to the term imposed for possession of cocaine with a loaded firearm, which was count five. (§ 12022.1.) The court imposed and stayed the two-year term for the on-bail enhancement as to each of the other counts.

The defendant argues, and the Attorney General correctly concedes, that the proper disposition of the stayed terms for the on-bail enhancement was to strike them. We agree. (People v. Augborne (2002) 104 Cal.App.4th 362, 376-377.) Therefore, the on-bail enhancement must be stricken for each of the counts on which the defendant was convicted, except for count five.

DISPOSITION

The judgment is modified by striking the on-bail enhancement on each of the counts on which the defendant was convicted, except for count five -- possession of cocaine with a loaded firearm. The presentence credit is corrected to reflect 540 days in custody. As modified, the judgment is affirmed. The court is directed to prepare an amended abstract of judgment reflecting these changes and to send the amended abstract to the Department of Corrections and Rehabilitation.

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


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