IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 13, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GERALD VANG ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. 06F07997)
The opinion of the court was delivered by: Butz , J.
P. v. Vang
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 improper testimony at all, it was to be in a manner against the prosecution--i.e., as indicating bias on Beezley's part, given his improperly expressed personal belief.
Second, we do indeed review the trial court's refusal to question the jurors by using the abuse of discretion standard of review. (See People v. Adcox (1988) 47 Cal.3d 207, 253 [applying this standard where the trial court allegedly erred in failing to hold a hearing to investigate juror misconduct].) We see no abuse here.
The trial court declined to question the jurors individually because it did not want to highlight the improper testimony and exacerbate the error. The trial court did not abuse its discretion in making this call. Such an inquiry would have been lengthy, distracting, and likely to draw undue attention to the improper testimony.
Defendants note, however, that the improper testimony carried great weight because it came not only from an expert, but from the lead investigator in the case (Detective Beezley), and was elicited near the end of the prosecution's case-in-chief. However, as we have noted, the admonition was phrased convincingly.
Third, a prosecutor, admittedly, engages in misconduct by eliciting or attempting to elicit inadmissible evidence in violation of a court order. (People v. Crew (2003) 31 Cal.4th 822, 839.) However, to show prejudicial prosecutorial misconduct, a defendant must show (1) as a matter of federal constitutional law, that the prosecutor's behavior comprised a pattern of conduct so egregious that it violated due process, i.e., it rendered the trial fundamentally unfair (People v. Bennett (2009) 45 Cal.4th 577, 594-595); or, (2) as a matter of state law, that the prosecutor engaged in deceptive and reprehensible methods to attempt to persuade either the court or the jury, and it is reasonably probable the defendant would have fared better had the misconduct not occurred (id. at p. 595; People v. Milner (1988) 45 Cal.3d 227, 245).
The prosecutor's improper questions did not comprise such an egregious pattern of conduct that they rendered the trial fundamentally unfair, thereby depriving defendants of federal due process. In the course of a three-month trial, the prosecutor asked two of these improper questions (substantively speaking, not counting follow-up questions), and substantial evidence supports the trial court's finding that the prosecutor asked them inadvertently. As we have seen, the trial court persuasively admonished the jury to disregard the answers.
And when we apply the state law standard for prosecutorial misconduct, it is not reasonably probable that defendants would have fared better had this misconduct not occurred. Again, the improper questioning was limited and the trial court admonished the jury effectively. The jury had before it properly admitted evidence of a long history of violence between the JCC and the MOD; Detective Beezley's improper opinion of the shooting being a "classic retaliation shooting" was not something concocted from the thin air of expertise. Finally, the evidence against defendants was strong, based on several adverse witnesses, persuasive circumstantial timing, and solid physical evidence.
Fourth, and lastly, for these same reasons, defendants were not deprived of due process (and the trial court did not err in denying the defense motion for a new trial based on Detective Beezley's improper opinion testimony).
II. Gang Enhancement--Sufficiency of the Evidence
Defendants contend the evidence was insufficient to prove the following two related elements of the gang enhancement: (1) JCC gang members engaged in a "'pattern of criminal gang activity'"; and (2) one of the JCC's "primary activities" was the commission of one or more of the criminal offenses enumerated in section 186.22, subdivision (e). (§ 186.22, subds. (b), (e), (f).)
Under the applicable standard of review, we review the evidence in the light most favorable to the judgment to determine if there is substantial evidence from which any rational trier of fact could have found each element beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) We find substantial evidence supporting both elements.
As noted, the gang enhancement applies to any felony 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), italics added; see also id., subd. (b)(4).)
"'Criminal street gang'" is the linchpin for the gang enhancement. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000; § 186.22, subd. (f).) "To prove the existence of a criminal street gang, 'the prosecution must prove that the [group at issue] (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal [offenses] enumerated in the [gang enhancement] statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the[se] enumerated offenses . . . during the statutorily defined period.'" (In re Jose P. (2003) 106 Cal.App.4th 458, 466-467, italics omitted, our italics added, quoting People v. Gardeley (1996) 14 Cal.4th 605, 617; § 186.22, subd. (f).)
At issue here are the second and third elements: primary activities and pattern of criminal gang activity. We begin with the pattern element.
A. Pattern of Criminal Gang Activity
The offenses enumerated in the gang enhancement regarding a "pattern of criminal gang activity" include the commission or attempted commission of assault with a deadly weapon (§ 245), unlawful homicide (§ 187 et seq.), shooting at an occupied vehicle (§ 246), burglary (§ 459), and witness intimidation (§ 136.1). (§ 186.22, subd. (e)(1), (3), (5), (11) & (8), respectively.)
Here, evidence of four offenses was presented to establish the pattern of criminal gang activity.
There were the two present offenses of attempted murder and shooting at an occupied vehicle. Present offenses count. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith); People v. Duran (2002) 97 Cal.App.4th 1448, 1458 (Duran).)
And the gang expert, Detective Beezley, testified to (1) a "gun fight" on June 2, 2005, in which identified JCC members shot at MOD gang members (Beezley was the lead investigator in that case); and (2) a first degree burglary on January 18, 2006, for which two JCC members were convicted (Beezley based this information on the police report). (Furthermore, Detective Beezley discussed about eight other incidents involving JCC gang members and assaults with firearms; in these cases, the JCC was the victim and the suspects were either rival gangs or unknown.)*fn4
We conclude there was sufficient evidence to find a pattern of criminal gang activity.
B. Primary Activities
Detective Beezley opined that the JCC's primary activities included assault with a deadly weapon, burglary, and witness intimidation.
Defendants claim the evidence was insufficient to establish this element because there was no proof that the JCC "consistently and repeatedly" engaged in these section 186.22-enumerated crimes so as to satisfy the "primary" criterion (§ 186.22, subd. (e)). All the prosecution could show, argue defendants, was one burglary, one firearm assault, and one witness intimidation (and this intimidation occurred after the present offenses). We disagree.
Sengpadychith provides two routes by which the "primary activities" element may be proved. Either the prosecution can produce evidence that the gang "consistently and repeatedly" committed enumerated offenses, or a properly qualified gang expert, relying on sufficiently reliable information, can opine that one of the gang's primary activities is the commission of one or more of the enumerated offenses. (Sengpadychith, supra, 26 Cal.4th at p. 324.)
Here, the prosecution traveled the latter route. A properly qualified gang expert, Detective Beezley, offered his opinion. Beezley based his opinion on the offenses described just above in part II.A. on the "pattern" element, and on the following sufficiently reliable information: his dozens, perhaps hundreds, of contacts with JCC members; his hundreds of gang crime investigations; his review of law enforcement records; and his discussions with his own as well as other law enforcement agencies. (See Sengpadychith, supra, 26 Cal.4th at p. 324.)
Coupling Detective Beezley's opinion with the trial court's apt observation of "[t]hree significant [enumerated] crimes within the span of approximately 15 months" (the firearm assault in June 2005, the first degree burglary in January 2006, and the present offenses in September 2006), we conclude there was sufficient evidence to find that the JCC engaged in one or more enumerated offenses as one of its primary activities.
III. Gang Enhancement--Assisting in Criminal Conduct
Relying on some federal Ninth Circuit decisions, defendants contend the gang enhancement must be reversed because it was not shown, as the gang enhancement statute requires (§ 186.22, subd. (b)), that the underlying offense was committed with the specific intent to assist "other" criminal conduct by gang members.
As defendants recognize in their reply briefs, though, these Ninth Circuit decisions were disapproved by the California Supreme Court in People v. Albillar (2010) 51 Cal.4th 47. Albillar held that the pertinent language in section 186.22, subdivision (b)--"the specific intent to promote, further, or assist in any criminal conduct by gang members" (italics added)--"is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, at p. 66.)
IV. Gang Enhancement--Refusal to Strike (§ 1385)
We disagree with defendants that the trial court abused its discretion in denying their motion to strike, under section 1385, the gang enhancement.
Under section 1385, a trial court may strike an enhancement "in the furtherance of justice." (§ 1385, subds. (a), (c).) And section 186.22, subdivision (g) of the gang enhancement statute adds, as pertinent: "Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section . . . in an unusual case where the interests of justice would best be served . . . ."
There was no abuse of discretion here. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-532 [setting forth this standard of review].) This was not an unusual case where the interests of justice would best be served by striking the enhancements. Instead, this case was an all-too-common one of senseless retaliatory gang violence.
In denying the motion to strike the gang enhancement, the trial court found, supported by substantial evidence, that each defendant had a criminal or juvenile adjudication record; that three of them had committed prior violent acts; that all four defendants were on probation at the time of the present offenses; that all four had been JCC gang members for significant periods; and that the present offenses involved an ambush, an array of shots and weapons, and a significant danger to innocent citizens.
V. Gang Enhancement--Defendant That X.'s Gang Membership
Defendant That X. contends the trial court erred prejudicially by failing to make the prosecution accept his stipulation that he was a JCC gang member, instead allowing the prosecution to introduce trial evidence on this subject. We disagree with That X.'s contention.
Generally, the prosecution cannot be compelled to accept a stipulation if the stipulation would deprive the state's case of its persuasiveness and forcefulness. (People v. Garceau (1993) 6 Cal.4th 140, 182.) The theory of the prosecution's case was that the present offenses comprised a retaliatory gang shooting. Sanitizing the evidence of the gang membership underlying the shooting would tend to deprive the prosecution's case of its forcefulness.
Assuming for the sake of argument that the trial court did err in this regard, we would still not reverse. It is not reasonably probable that any of the defendants would have fared better had the stipulation been ordered and the indicia of defendant That X.'s gang membership been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836 [applying this standard of prejudicial error to state law evidentiary errors].) Under That X.'s position, the jury would have been told he was indisputably a JCC gang member. And, as noted, the evidence against defendants was strong, based on several adverse witnesses, persuasive circumstantial timing, and solid physical evidence.
VI. Batson/Wheeler*fn5 Motion
Defendants contend the trial court erroneously denied their Batson/Wheeler motion. We disagree.
Under Batson/Wheeler, "[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal." (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)
Defendants' Batson/Wheeler motion concerned the prosecutor's use of a peremptory challenge to excuse Prospective Juror No. 3063856, an African-American woman (hereafter, Juror No. 3063856).
Three steps comprise the Batson/Wheeler motion procedure. First, the moving defendant must make a prima facie case of purposeful discrimination. Second, if the defendant does so, the prosecutor must provide a permissible "race-neutral justification" for the peremptory challenge. The third and final step calls for the trial court to determine, through "a sincere and reasoned effort," whether the prosecutor's offered justification is genuine; in other words, whether the defendant has established purposeful discrimination. (People v. Johnson (2006) 38 Cal.4th 1096, 1099; People v. Jurado (2006) 38 Cal.4th 72, 104-105; Silva, supra, 25 Cal.4th at pp. 385-386.) We must undertake a comparative analysis of the voir dire of other prospective jurors as part of reviewing the record regarding the third step of the trial court's findings, when the defendant, as here, relies on such evidence. (People v. Lenix (2008) 44 Cal.4th 602, 607 (Lenix).)
Because Batson/Wheeler motions call upon a trial judge's personal observations, we defer to the trial court's factual findings, but we still consider whether substantial evidence supports those findings. (Lenix, supra, 44 Cal.4th at pp. 626-627; Silva, supra, 25 Cal.4th at pp. 385-386.)
Here, the trial court found that defendants had shown a prima facie case of discrimination.
The prosecutor then stated that he struck Juror No. 3063856 because she had served on two prior juries that failed to reach a verdict.
Defendants argue that the prosecutor's reason for striking Juror No. 3063856 was not genuine, given: (1) Juror No. 3063856's voir dire and the record; (2) the prosecutor's failure to question Juror No. 3063856 more extensively about her prior jury service; and (3) the prosecutor's failure to challenge other similarly situated, but non-African-American prospective jurors. We take these arguments in turn.
First, in her one-page juror questionnaire, Juror No. 3063856 stated that she had served on two prior juries: one in 2000 for theft that reached a verdict; and one in 2003 for "capitol pun" (sic) that did not.
In her 20-page juror questionnaire, though, Juror No. 3063856 stated that she had served on a prior criminal jury in "about 2002" that reached a verdict.
The following voir dire then took place between the prosecutor and Juror No. 3063856 concerning her one-page questionnaire answers:
"[PROSECUTOR]: I'm trying to find your questionnaire here. [¶] I noticed you sat on a couple of juries; is that right?
"[JUROR NO. 3063856]: Yes, sir.
"[PROSECUTOR]: And one of them was you were able to render a verdict; is that right?
"[JUROR NO. 3063856]: In both cases, no.
"[PROSECUTOR]: In both cases no?
"[JUROR NO. 3063856]: No.
"[PROSECUTOR]: One of them was a capital punishment case?
"[JUROR NO. 3063856]: Yes. [¶] . . . [¶]
"[PROSECUTOR]: The 2000 case, you indicated it is a theft case?
"[JUROR NO. 3063856]: Yes.
"[PROSECUTOR]: On the one-page form, you indicated you were able to reach a verdict but that was a mistake, you were not?
"[JUROR NO. 3063856]: No, we weren't. Not after the six weeks we didn't.
"[PROSECUTOR]: Thank you."
After the prosecutor explained that he excused Juror No. 3063856 because she had served on two prior hung juries, the trial judge remarked that, based on his own voir dire notes, "I'm confident that her responses were such that they indicated she had twice been on a jury and twice it had failed to reach verdict."
We conclude that substantial evidence supports the trial court's factual finding that the prosecutor's race-neutral reason for striking Juror No. 3063856 was genuine. Our state high court has noted that it is reasonable to peremptorily challenge a prospective juror because he or she has served previously on a hung jury. (People v. Farnam (2002) 28 Cal.4th 107, 138.)
We also disagree with defendants' second argument--that the prosecutor's bias was evident when he failed to question Juror No. 3063856 more extensively to clarify the matter. Juror No. 3063856 was fairly insistent in voir dire: She had served previously on two hung juries. The prosecutor, holding Juror No. 3063856's one-page juror questionnaire stating otherwise, approached the issue from two angles and got the same response each time: two hung juries. The prosecutor was not required to harangue Juror No. 3063856 to show his bona fides.
And defendants' third argument, which implicates a comparative juror analysis, fails as well. The jurors the defendants claim were most comparable to Juror No. 3063856 were Juror No. 7, who had served on a civil jury that reached a verdict as well as on a criminal jury that never got to deliberations; Alternate Juror No. 3, who may have served on a hung jury; and Juror No. 37, who had served on a hung jury. These unchallenged jurors, however, were not similarly situated to Juror No. 3063856, who had served on two hung juries.
VII. Juror Misconduct
Defendants cite two instances of juror misconduct involving the same juror (one instance occurred when this juror was just an alternate).
A. As an Alternate Juror
On April 1, 2008, during trial, an alternate juror (later seated as Juror No. 5) remarked to defense counsel for defendant Dia L., something like: "[T]hey all pled. No, that's just [an] April [F]ool's joke, but you might want to think about." Dia L.'s attorney told the trial court that "[i]t was clearly in a light-hearted manner."
The trial court asked all four defense attorneys if they wished to voir dire the alternate juror. They declined, realizing it was a joke and not wanting to draw attention to it. The trial court did not investigate further. Proceedings resumed.
Now, on appeal, defendant Nou V. claims this alternate juror's comment constituted misconduct and the trial court erred in not investigating it.
Assuming this claim has not been forfeited, it fails on its merits.
"The decision whether to investigate the possibility of juror bias, incompetence, or misconduct . . . rests within the sound discretion of the trial court. . . . [¶] [A] hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his duties and would justify his removal from the case." (People v. Ray (1996) 13 Cal.4th 313, 343.)
The record shows this comment was made in jest, on a day reserved for jest. Even defense counsel at trial saw no need for a court inquiry. The trial court acted properly within its discretion in not further investigating the matter.
B. Juror No. 5
The alternate juror above subsequently took the seat of Juror No. 5.
Near the end of the prosecution's case-in-chief, while Detective Beezley was testifying as a gang expert, Juror No. 5 approached the bailiff during a break and asked, "[A]fter the case ends, would the jury . . . get an escort out to the parking [lot]?"
In light of this question, defense counsel were concerned that Juror No. 5 may have prejudged the case. The trial court echoed this concern and questioned the bailiff and Juror No. 5, allowing defense counsel to question as well.
That inquiry disclosed: (1) Juror No. 5 had sat on a jury some six years before in a drug/murder case (no gang allegations) in which certain jurors had been escorted in and out of the building because family members and associates of the defendant, who were in the courtroom audience, would follow these jurors in their vehicles on their way home (this occurred during trial and deliberations); (2) Juror No. 5 had seen nothing of this sort in the present trial (although he had watched for such behavior); (3) Juror No. 5 believed he could be fair and impartial in the present case; (4) he was not apprehensive about being a juror in the present case; and (5) he had not prejudged the present case and was still open to all the evidence.
The trial court declined defendants' request to remove Juror No. 5, reasoning in part: "He's not currently expressed fear. He's not currently asked for an escort. He's not made any comment that would indicate that his fairness or his ability to remain open to the evidence has been compromised."
The determination of good cause to remove a juror rests within the trial court's sound discretion and is upheld if supported by substantial evidence. (People v. Watson (2008) 43 Cal.4th 652, 696.)
The trial court did not abuse its discretion here. Substantial evidence showed that the issue of an escort had been a matter of prior jury service for Juror No. 5 rather than a matter of present bias. Had Juror No. 5 been presently fearful because of his past jury service, he likely would have said so and gotten excused from the present jury service. Instead, he assured the court and counsel that he had not prejudged the case and was fair, impartial and open to the evidence. In this respect, what was in the past was of the past.
Defendants counter with Juror No. 5's response on his juror questionnaire, which stated that he had served on one prior jury (a criminal case in 2001), and described that experience as "Enlightening." To defendants, this response smacked of concealment on Juror No. 5's part regarding the matter of an escort, and therefore evidenced misconduct. While the response was cryptic, it may have also accurately characterized Juror No. 5's experience; there is nothing in the record to show Juror No. 5 was concealing the escort matter.
Nor did the trial court, as defendant Nou V. claims, abuse its discretion by failing to question other jurors on this matter. There was no allegation or evidence linking any other juror to this issue. Questioning of the other jurors on this issue would have been confusing and counterproductive.
VIII. Jury View of Shooting Scene
Defendants contend the trial court erred in denying their motion in limine to have the jury view the scene of the shooting, as authorized by section 1119. Defendants argue that such a visit was essential to evaluate M.C.'s credibility (M.C.'s view, as noted, was from around 300 feet away and was apparently obstructed by buildings occasionally). We disagree.
Our standard of review is abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 158.) Factors for the trial court to have considered include whether there were other means of testing witness credibility, and practical difficulties in conducting a jury view. (Ibid.)
There was no abuse here. The trial judge reviewed an array of photographs from the parties depicting the scene, and viewed the scene on his own (walking the Park, the school grounds, and the intersection of the shooting).
In denying a jury view, the trial court concluded that (1) the photos "accurately depict[ed] the area such that the defendants [could] present their arguments relative to" witness credibility; (2) issues of safety and potential contact with people on the scene outweighed the benefit of a jury view; and (3) "[i]f the parties [were] not satisfied with the ability of the currently marked evidence to convey the needed information to the jurors, they [could] arrange for additional pictures to be taken, video to be made of the relevant area, or alternatively send out additional investigators to report on different aspects of the area relevant to their respective defense[s]."
On this record, we see no abuse of discretion.
IX. Evidence of the Sentence Defendants Faced
Defendants contend the trial court erroneously excluded evidence of or, alternatively, erroneously failed to instruct upon, the actual penalty defendants faced. We disagree.
This issue arose as follows. Detective Beezley, while testifying as lead investigator, sought to explain the degree of forensic investigation undertaken here (the defense was concerned primarily about the failure to photograph the broken glass from the white CRX and the failure to perform the gunshot residue test on Chong V.). Beezley stated that police must prioritize their "CSI" requests, calling out forensic investigators only where there is a "dead body" or someone seriously injured on the scene.
Defendants moved to inform the jury that shooting at an occupied vehicle carries a penalty similar to that of homicide, which was the kind of serious crime for which a forensic team would have been called out, according to Detective Beezley. Through this evidence, defendants (1) wanted the jury to know the charges were serious in this case, and (2) wanted to impeach Detective Beezley's assertion as to why he did not collect certain forensic evidence.
The standard of review is, again, abuse of discretion; a trial court is vested with wide discretion in deciding the relevancy of evidence. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) And, again, there was no abuse of discretion here.
As for defendants' first point, the jury had to know that charges of attempted murder and shooting at an occupied vehicle (injuring its occupant) were serious crimes.
And, as to defendants' second point, this was an awfully oblique way of attacking the credibility of Detective Beezley, who was subject to extensive cross-examination from four defendants already. As the trial court properly recognized, "it's not the prov[i]nce of this [non-capital] jury to weigh or measure penalty or punishment. . . . [A]nd it would be absolutely inappropriate to do it."
X. Prosecutor Misconduct
Defendant That X. alleges four instances of prosecutorial misconduct, three of which occurred during the prosecutor's closing argument.
"'"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.'"' [Citation.] 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.'"'" (People v. Ayala (2000) 23 Cal.4th 225, 283-284 (Ayala).)
To preserve a claim of prosecutorial misconduct for appeal, a defendant must have timely objected and requested the trial court to admonish the jury. (Ayala, supra, 23 Cal.4th at p. 284.) However, an admonition request is not required if an admonition would not have cured the harm, or if the court immediately overrules the objection leaving the defendant no opportunity to make such a request. (People v. Green (1980) 27 Cal.3d 1, 34, 35, fn. 19, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, and disapproved on a different ground in People v. Martinez (1999) 20 Cal.4th 225, 233-237.)
A. Attempting to Elicit Inadmissible Testimony
Defendant That X. complains the prosecutor attempted to elicit from Detective Vu that a black car had also been seen at the time of the shooting, and that this black car belonged to another JCC member who was linked to one Joshua Xiong. Defendant That X. argues that testimony on JCC membership calls for an expert opinion, and Detective Vu was not an expert; and that the prosecutor also improperly tried to get this evidence in through a hearsay statement from witness J.L.
Defense counsel successfully objected to the admission of this evidence, but did not request an admonition. Accordingly, the issue is forfeited.
In any event, the challenged evidence helped defendants as much as it hurt them by pointing to a distinct person's possible involvement in the shooting; defense counsel argued as much.
B. Closing Argument--Jurors as Citizens of the Community
In response to the defense argument that the police investigation here was biased and inadequate, the prosecutor, in his final closing argument, stated that the defense "said they rounded up . . . the usual suspects, that's all this was about. [¶] How are these guys the usual suspect[s]? You heard that [defendants] Nou [V.] and Gerald [V.] were never to have weapons, never to commit crimes with a gang, and that [the] JCC is not even a gang so how are these guys the usual suspects? [¶] And as citizens of this community, don't you want an investigation to be geared to getting dangerous people and weapons off the street as quickly as possible?"
A prosecutor commits misconduct when he argues, in a non-capital case, that the jury is the "'conscience of the community'" so as to urge the jurors to convict a defendant in order to protect the community. (See United States v. Monaghan (D.C.Cir. 1984) 741 F.2d 1434, 1441, fn. 30; see also People v. Gamache (2010) 48 Cal.4th 347, 389.) Here, though, as the People persuasively argue, the prosecutor's reference to the jurors as "citizens of this community" concerned the defense claim about the inadequacy of the police investigation, rather than an argument that the jury should convict these defendants to protect the community.
In a related point, defendant That X. also complains about the prosecutor's argument that the defense theory of self-defense would basically "legalize all gang shootings."*fn6 This was not misconduct either. Instead, it was simply the prosecutor's view of the legal merit of the defense theory. (See People v. Bell (1989) 49 Cal.3d 502, 538 (Bell).)
C. Closing Argument--Denigrating Defense Counsel
In closing argument, the prosecutor stated: "And if any of you think that any defense attorney has ever stood up in closing argument and [said], you know what, the Government's got us, my client's guilty, well, then you need to spend more time on jury duty because they can't do that, they don't do that, and they won't do that."
Defense counsel successfully objected, but failed to request an admonition. Consequently, the issue is forfeited.
In any event, the prosecutor's remarks were not an impermissible personal attack on defense counsel's integrity, or an impermissible argument that defense counsel did not believe in his client's defense. (Bell, supra, 49 Cal.3d at p. 538; People v. Thompson (1988) 45 Cal.3d 86, 112.) Rather, the prosecutor's remarks resembled those permitted in People v. Cunningham (2001) 25 Cal.4th 926. The Cunningham prosecutor was permitted to tell the jury that defense counsel's job was to "create straw men," "put up smoke, red herrings," and "they have done a heck of a good job" at it. (Id. at pp. 1002-1003.)
D. Closing Argument--Referring to Facts Not in Evidence
When discussing why the police investigation focused on the four defendants, the prosecutor argued: "This investigation was geared towards th[e]se four from the beginning and Detective[s] Beezley and Vu admitted it. . . . Because the call that goes out over the radio describes these four guys, describes the car. Beezley and Vu knew they were within the area within an hour of the shooting."
Defendant That X.'s attorney objected, "There's no evidence that my client was described in any radio call." The trial court merely told the jury that arguments were just that, arguments based on the lawyers' memories of the evidence, and not evidence themselves.
Arguably, the prosecutor's remarks were implicitly based on the evidence, which included testimony that Detectives Beezley and Vu saw and photographed defendants less than an hour before the shooting; that the two detectives were dispatched to the Park after neighbors reported the shooting; and that one of those neighbors called 911 and described the suspects and their red Honda Civic. Thus, the prosecutor did not commit misconduct.
XI. Instruction on Intent--Firearm Offense (§ 246)
Defendant That X. claims the trial court erroneously failed to instruct the jury that the offense of shooting at an occupied vehicle (§ 246) requires the specific intent to fire at an occupied vehicle.
There is an easy answer to this claim; in fact, it's as simple as 2-4-6. Section 246 is a general intent crime. (People v. Government (2005) 126 Cal.App.4th 1344, 1356, 1361.) When the definition of a crime refers to a defendant's intent to do some further act or to achieve some additional consequence, the crime is deemed to be one of specific intent. (People v. Hood (1969) 1 Cal.3d 444, 457.) The section 246 offense is defined as the intentional discharge of a firearm at certain enumerated targets (including an occupied vehicle). (§ 246.) "No specific intent to strike the target, kill or injure persons, or achieve any other result beyond shooting at or in the general vicinity or range of the target is required." (Government, supra, 126 Cal.App.4th at p. 1361.)
XII. Inconsistent Verdicts
Regarding the attempted murder conviction (count one), defendants contend the jury's true finding on the enhancement for a principal personally and intentionally discharging a firearm (§ 12022.53, subd. (c)) is inconsistent with its not true finding on the enhancement for a principal personally using a firearm (§ 12022.53, subd. (b)); therefore, the subdivision (c) enhancement must be vacated and the matter remanded for resentencing. We disagree.*fn7
The trial court instructed the jury regarding the charged enhancements under section 12022.53, subdivisions (b) through (d), as pertinent: "If you find the defendants guilty of the crimes charged in Count [one] [attempted murder] and you find [the gang enhancement true], you must then decide whether, for each crime that the People have proved the additional allegation that one of the principals personally used a firearm [§ 12022.53, subd. (b)], or personally and intentionally discharged a firearm [§ 12022.53, subd. (c)] or personally and intentionally discharged a firearm causing great bodily injury [§ 12022.53, subd. (d)]." (CALCRIM No. 1402, italics added; see also § 12022.53, subd. (e) [which applies the subd. (b)-(d) enhancements to principals in the underlying offense who were found to have also violated the gang enhancement].)
Arguably, no inconsistency occurred here. The jury simply found true the most appropriate of the section 12022.53 enhancements from the three disjunctive options offered. For a culture steeped in multiple choice offerings and directed to choose the best answer, this is the natural outcome.
In any event, inconsistent findings are generally allowed to stand if they are otherwise supported by substantial evidence, which surely is the case here regarding the finding of intentional firearm discharge by a principal in the offense. (§ 954; People v. Lewis (2001) 25 Cal.4th 610, 655-656; see § 12022.53, subd. (e).)
There is an arguable narrow technical exception to this general rule, upon which defendants rely: All the elements of the not true finding are within identical elements of the true finding, and proof of the not true finding is necessary to sustain the true finding. (See People v. Hamilton (1978) 80 Cal.App.3d 124, 130; but see People v. Pahl (1991) 226 Cal.App.3d 1651, 1659-1660 [this exception applies only in conspiracy cases].) But even if we assume this exception applies, we note, hewing to the spirit of technicality, that personal "use" of a firearm (§ 12022.53, subd. (b)), as the jury was properly instructed here, encompassed not just "fir[ing]" it, but also "display[ing]" it or "hit[ting]" with it. Moreover, as the trial court aptly recognized, "technical defects in a verdict may be disregarded if the jury's intent to convict of a specified [charge] is unmistakably clear, and the accused's substantial rights suffered no prejudice." (Quoting People v. Webster (1991) 54 Cal.3d 411, 447.) That is the case here.
We conclude that any inconsistency in the enhancement findings under section 12022.53 subdivisions (b) and (c) does not warrant reversal or remand.
XIII. Cumulative Error
Having found no significant individual error, we find no cumulative error. In fact, given the nature of the contentions the four defendants raise on appeal, it is evident the trial court handled this lengthy and complex trial with aplomb.
The judgment against each defendant is affirmed.
We concur: HULL , Acting P. J. MURRAY , J.