(Super. Ct. No. 08F03777)
The opinion of the court was delivered by: Raye , P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Doshmen Jamaal Johnson of the first degree murder (Pen. Code, § 187, subd. (a))*fn1 of Perry Steele with a special circumstance finding that defendant intentionally committed the murder by discharging a firearm from a vehicle (§ 190.2, subd. (a)(21)). The jury also found true allegations that the murder was committed for the benefit of a street gang (§ 186.22, subd. (d)) and by defendant's personally discharging a firearm, causing death (§ 12022.53, subd. (d)).
Defendant was sentenced as follows: for the murder and special circumstance finding, life in prison without the possibility of parole; for personally discharging a firearm, causing death, 25 years to life; and for the gang enhancement, a term of 10 years.
On appeal, defendant contends (1) the wrongful admission of gang evidence obtained from a Myspace online social networking account alleged to be his denied him due process; (2) without the Myspace evidence, the evidence was insufficient to prove he was the killer; and (3) a criminal conviction assessment of $30 must be stricken as it violates ex post facto principles.*fn2 We reject the contentions and affirm the judgment.
On April 14, 2008, at approximately 1:00 a.m., Perry Steele, accompanied by Omari O'Neil and Franki Jones, was driving to a liquor store on Del Paso Boulevard. Steele and O'Neil were members of the Del Paso Heights Bloods (DPHB), a criminal street gang; Jones was the girlfriend of Fred Patton, another DPHB member, who was at that time in jail.
Jones, who was in the rear passenger seat behind the driver, testified that while Steele was stopped at a traffic light, she saw defendant in the front passenger seat of a black four-door car next to them. Defendant was trying to get Steele's attention, and Jones so informed Steele. Steele opened his car door and defendant asked Steele if he had "weed." Steele replied no and shut the car door.
Steele drove to the liquor store, and as he, O'Neil, and Jones were getting out of Steele's car, the black car containing defendant drove in behind them. Jones heard somebody from the black car yell, "[W]here are you from," and defendant began shooting, fatally wounding Steele. The black car then drove off.
Detective Robert Quinn, an expert on criminal street gangs, testified that defendant was a member of TNA (Tearin Niggas Appart), which is a subset of the street gang NHGC (North Highland Gangster Crips), and that Steele was a member of DPHB, a rival gang. Quinn opined that gang rivalry was the motive for the killing of Steele and that the killing was done to benefit the street gang to which defendant belonged.
Although defendant did not testify, he called as an expert witness Dr. Mitchell Eisen, who testified regarding the unreliability of eyewitness identification by persons under stress and who may have been ...