(Super. Ct. No. 06F07997)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a lengthy trial in 2008 involving four defendants, a jury: (1) convicted defendants Gerald Vang (Gerald V.), Dia Lee (Dia L.), Nou Vang (Nou V.) and That Xiong (That X.)*fn1 each of one count of attempted murder and one count of discharging a firearm at an occupied vehicle (Pen. Code, §§ 664/187, 246);*fn2 (2) found that both counts were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1) & (4)); and (3) found that a principal personally and intentionally discharged a firearm during the attempted murder (§§ 12022.53, subd. (c), 186.22, subd. (e)).
Defendants were each sentenced to an unstayed term of 15 years to life based on the firearm discharge offense and the gang enhancement accompanying it. (§ 186.22, subd. (b)(1) & (4)(B).)
On appeal, defendants raise a host of contentions, including the following: gang expert testimony on ultimate factual issues concerning the gang enhancement was inadmissible; insufficient evidence of a criminal street gang; discriminatory excusal of a prospective juror; juror misconduct; prosecutor misconduct; and inconsistent verdicts involving the firearm discharge. We find no prejudicial error and shall affirm the judgment against each defendant.
The Prosecution's Theory of the Case
The prosecution's theory was that, on September 8, 2006 (further undesignated calendar references are to that year), the four defendants, members of the South Sacramento Junior Criminal Crips (the JCC) criminal street gang, shot Chong Vang (Chong V.), a member of the rival Masters of Destruction (the MOD) gang, in retaliation for his having shot at three other JCC members on August 31.
Events of September 8 Prior to the Shooting
To prevent retaliation stemming from the August 31 shooting that targeted the JCC, gang detectives Jeffrey Beezley and Binh Vu, on September 8, around 5:20 p.m., went to Susan B. Anthony Park (the Park), a known hangout of the JCC, to contact JCC members.
At the Park, the two detectives spoke with and searched the four defendants, who were together, but found no weapons, contraband or bandannas. The detectives noticed, however, a red Honda Civic in the parking lot, which resembled defendant Nou V.'s car. The officers did not search the car.
Witnesses of the September 8 Shooting
Four such witnesses testified.
M.C., who is defendant Dia L.'s cousin, was playing basketball at the Park in the late afternoon of September 8. He saw the four defendants there along with other JCC gang members.
While at the Park, M.C. saw a white Honda CRX drive slowly down Detroit Boulevard bordering the Park, and heard loud hip-hop music blaring from the car. The driver and the group of JCC gang members stared at one another.
When the white CRX turned onto Ann Arbor Way, a dead-end street, M.C. saw the JCC members, including the four defendants, run toward Detroit Boulevard. With his friends, M.C. walked quickly the other way.
M.C. then saw defendant Gerald V., carrying a black handgun, run to the corner of Detroit and Ann Arbor (M.C. told the police he merely assumed that defendant Gerald V. had a gun). Gerald V. hid behind a bush; he was adorned with a blue or white bandanna below his eyes, cowboy style.
M.C. also saw defendant That X., carrying a black-gripped handgun and wearing a red bandanna, run toward Detroit Boulevard.
M.C. had also seen defendants Nou V. and Dia L. run toward the red Honda in the parking lot. Shortly thereafter, he noticed the red Honda parked at the intersection of Detroit and Shraeder/Fallis Circle, a block from Detroit and Ann Arbor (and about 300 feet away from his vantage point). M.C. saw defendants Nou V. and Dia L. exit the red Honda, with Dia L., and possibly Nou V., holding a gun. Although he did not see the shooting, M.C. heard about 10 gunshots from at least two guns.
A second witness, J.L., saw the white Honda CRX drive from Ann Arbor onto Detroit, and heard, seconds later, the CRX's blaring music abruptly end, followed by six or seven gunshots. J.L. did not see the shooters, but his testimony, combined with a statement he made to Detective Vu, echoed much of M.C.'s testimony about the route the white CRX took by the Park while "gangster rap" MOD-lyric music blared from the car, the "gangster stare" exchange between the driver and the men in the Park, and the red Honda's involvement in the shooting, which, J.L. reported, was driven by defendant Nou V.
A third witness, T.T., saw a man, wearing a white bandanna over his nose and mouth, shooting a black handgun at a white Honda CRX at the intersection of Detroit and Fallis/Shraeder Circle. A second man, taller than the shooter, was standing across the intersection. T.T. heard at least 10 rapidly fired shots. The CRX sped off, and the shooter ran across the street to the second man.
The fourth witness, R.A., was watching television when he heard three to four gunshots come from the direction of Detroit and Shraeder Circle. He looked out his window and saw two young Asian men running down Shraeder away from Detroit. The shorter of the two was wearing a white bandanna over his nose and mouth and carrying a chrome-plated, nine-millimeter handgun (R.A. identified a photograph of the gun at trial). The taller man had a red bandanna over his nose and mouth. The two men ran to a nearby vacant ("hub") house, where they left the gun, their bandannas, and their sweatshirts. Although R.A. contacted the police, the two men returned and retrieved the discarded items before the police could apprehend them; then off the two went as passengers in a red Honda Civic (J.L. noted that defendant Nou V.'s red Honda Civic looked like the car he saw that day).
Two of these witnesses, M.C. and J.L., were later threatened by JCC members; this evidence was admitted, as the jury was instructed, solely for its effect, if any, on the credibility of these witnesses.
Evidence showed that Chong V. was the driver of the white CRX and had been shot in the upper left back.
Broken glass and six expended shell casings were found at the scene of the shooting.
A search of Chong V.'s white CRX revealed several bullet holes to its rear exterior, and, inside, broken rear window glass and two different expended bullets.
Defendants Gerald V., Dia L. and That X. tested positive for gunshot residue on their hands. Although Detective Beezley requested a gunshot residue test on Chong V., that test was never performed.
The four defendants were arrested following police surveillance of an apartment on Nedra Court where one S.V. resided, among others. (During the early afternoon of September 8, S.V. had seen defendants That X. and Dia L., along with S.V.'s brother and another individual, pass around two black handguns at this apartment.) Outside a window of this apartment, officers found a silver, nine-millimeter Luger caliber handgun, which defendant That X. had tossed there around 7:30 p.m. on the evening of the shooting. The six shell casings found at the shooting scene and the two expended bullets found in Chong V.'s CRX were not fired from this gun, but all six shell casings were fired from the same gun.
In a subsequent in-field showup, witness J.L. identified defendant Nou V. as the driver of the red Civic used in the shooting.
The lead investigator in this case, gang detective Beezley, also testified as an expert concerning the gang enhancement. We will set forth the pertinent parts of his testimony when we discuss the issues involving this enhancement.
The defense centered on mistaken identification and self-defense/defense of others (with Chong V. shooting first).
As for mistaken identification, defense investigators measured M.C.'s vantage points of the incident at between 200 and 300 feet, and noted some visual obstructions. The defense also extensively questioned M.C.'s credibility.
As for self-defense/defense of others, a materials science expert opined that, since there was apparently more broken glass outside Chong V.'s CRX than inside, the bullet that shattered the glass was shot from inside the car; moreover, the defense noted, the bullet damage to the CRX was only to its rear section. Furthermore, Chong V. did not go to the hospital--which was less than a 10-minute drive from the shooting site--until about an hour after the shooting and only after apparently stopping at a fellow gang member's house; displaying, the defense argued, suspicious behavior (e.g., weapon disposal; story concoction).
I. Gang Enhancement--Gang Expert's Improper Opinion Testimony Regarding Gang Members' Intent
Defendants contend the trial court failed to adequately remedy the gang expert's inadmissible opinion testimony on the ultimate factual issues of the defendants' subjective knowledge, motivation and intent in the shooting of Chong V. This testimony concerned the gang enhancement. We disagree with defendants.
The gang enhancement may be imposed only if the underlying "felony [was] committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]" (§ 186.22, subd. (b)(1); see also id., subd. (b)(4)(B).)*fn3
A gang expert may not testify as to a gang member's subjective knowledge and intent in committing the underlying felony. This is because such testimony goes to an ultimate factual issue to be decided by the jury, and the jury can decide the issue without expertise. (People v. Killebrew (2002) 103 Cal.App.4th 644, 647, 654-658; see People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.)
Pursuant to an in limine defense motion, the trial court ruled that the gang expert, Detective Beezley, could not testify to ultimate facts, including any defendant's knowledge and intent in committing the shooting; the key to handling this issue, said the trial court, was to use hypothetical questions.
Nevertheless, the prosecutor at trial questioned Detective Beezley, as a gang expert, as follows:
"Q. Based on what you know about each of these defendants and what you know about the investigation of the [Park] shooting on September 8th, 2006, in your expert opinion was that shooting gang-related activity?
"A. Absolutely, 100 percent. [¶] . . . [¶]
"Q. Can you describe what you mean a little bit more about that?
"A. Absolutely. I think it's a classic retaliation shooting where the opportunity presented itself. The potential suspect drove through their neighborhood, and I believe he disrespected them in front of their peers and also in front of citizens. [¶] They quickly gathered a plan to retaliate, and they enacted and executed that retaliation shooting on their rival gang member."
Detective Beezley then added: "My personal belief is they knew who the shooter was from the [MOD-instigated August 31] shooting and they recognized him. Coupled with all these other mitigating [sic] factors such as playing the music, the eye stare, those are all signs of disrespect. And I think at that point they formulated a plan for a retaliation shooting."
The trial court found the prosecutor violated the in limine order. After extensive discussion with counsel, the trial court decided to admonish the jury, but declined a defense request to question the jurors individually about whether they could disregard Detective Beezley's improper opinion.
The trial court admonished the jury as follows: "Ladies and gentlemen, you are directed to disregard that portion of Detective Beezley's testimony offered yesterday just before the morning break that referenced his personal belief as to what the defendants knew, recognized, or formulated in response to the presence of Chong [V.] on Detroit Boulevard on September 8th, 2006. It is improper and irrelevant for an expert to state a conclusion on an ultimate issue. [¶] As jurors, you are the ultimate factfinders in this case. Therefore, you are directed not to consider that portion of Detective Beezley's testimony, except as it may demonstrate possible bias on the part of the witness [this last clause was requested by the defense]."
Defendants contend (1) the admonition was ineffective; (2) the trial court abused its discretion when it declined the defense request to question the jurors individually on whether they could disregard Detective Beezley's improper opinion testimony; (3) the prosecutor committed misconduct in eliciting this testimony; and (4) these failings deprived them of due process. We take these four contentions in order, disagreeing with each.
First, we find the admonition effective. The admonition was short and direct--it used the very language Detective Beezley had used and it referred to the detective's improper personal belief (a belief, the admonition noted, that may have indicated Beezley was biased). The trial court phrased the admonition in a way that would appeal to the jury's proper role: The jury had the ultimate power to decide the case, not some expert. Beezley's improper testimony may have come toward the end of the prosecution's case, but this persuasive admonition came after this testimony. And the admonition told the jurors that if they thought of the ...