(Super. Ct. No. SF093367A)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a birthday celebration began to deteriorate, the host attempted to shut down the party. Gang rivalry escalated and shooting broke out, leaving a teenaged boy dead and several others wounded. An information charged defendant David Deandre Lewis with murder, attempted murder, and participation in a criminal street gang. (Pen. Code, §§ 187, 664/187, 186.22, subd. (a).)*fn1 A jury found defendant guilty of all charges. The court sentenced defendant to life in prison without the possibility of parole, plus a consecutive determinate term of 142 years 4 months. Defendant appeals, contending (1) the court erred in admitting the preliminary hearing testimony of a fellow gang member, (2) instructional error, (3) ineffective assistance of counsel, (4) cumulative error, and (5) sentencing error. We shall direct the trial court to amend the abstract of judgment as discussed herein. In all other respects, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the fall of 2004 members of rival gangs attended a backyard birthday party. When tensions arose, the host attempted to end the party. Gunfire erupted, leaving one person dead and three injured.
An information charged defendant with one count of murder, three counts of attempted murder, and participation in a criminal street gang. The information also alleged the special circumstance of murder committed to benefit a criminal street gang as well as the personal and intentional discharge of a firearm during the commission of a felony; the personal and intentional discharge of a firearm during the commission of a felony, causing great bodily injury or death; participation in an offense where a principal personally and intentionally discharged a firearm, causing great bodily injury or death; the personal use of a firearm during the commission of a felony; and the commission of an offense to benefit a criminal street gang. (§§ 190.2, subd. (a)(22), 12022.53, subd. (c), 12022.53, subd. (d), 12022.53, subds. (d)-(e), 12022.5, subd. (a), 186.22, subd. (b)(1).)
A jury trial followed. The evidence revealed the following.
Billy Ray Garner and his wife Tanya held a birthday party for their two teenaged sons. Since the Garners had previously resided in the Bay Area, some guests from the Bay Area attended.
The Garners' sons advertised the party with a flier circulated in Stockton, including at a mall and a local park. The fliers announced an "EPA-ESO Party." EPA (East Palo Alto) and ESO (East Side Oakland) are gangs and rivals of the North Side Gangster Crips. The sons also invited friends from Oakland, Palo Alto, and Stockton. Defendant is a member of the North Side Gangster Crips.
The party took place in the Garners' backyard, complete with stereo speakers. The party progressed without incident until a rap song was played that encouraged people to call out their hometowns or neighborhoods. Guests started yelling out towns and neighborhoods, including East Oakland, East Palo Alto, and Stockton. Other partygoers yelled "North Side Stockton Crips," "Gangster Crip," "NSGC," "North Side Crip," and expletives about Stockton. The yells sparked tension among the partygoers.
Defendant, nicknamed Tidy Whitey, attended the party with fellow gang members Jimmy Lee Benson, Dawayne McDonald, Jesse Zamora, Eddie Ortiz, Terrance Murray, and Andrew Thompson. During the party defendant yelled, "Fuck Oakland" and "North Side." Benson carried a gun with a clip, and during the party he rejected Zamora's advice to conceal the weapon.
The Garners decided to end the party, turned off the music, and told the partygoers to leave. Billy Ray Garner testified it was time to close the party down and he yelled loudly, "The party's over. That's it. The party's over."
Some of defendant's fellow gang members retrieved guns from their cars, passed them out, and gathered in the street. As tensions mounted, McDonald gave defendant a gun.
As the guests began to leave, some partygoers from the Bay Area waited across the street for rides. Words were exchanged between the two groups. A friend of Billy Ray Garner drove up and told him one of the boys in the street had a gun. Garner saw a boy putting a gun in his waistband and told his wife to call the police. The gunman was in the group gathered down the street from the Garners' home.
Billy Ray Garner approached the young man with the gun and said: "Hey, man, you don't have to do this. This is not that type of party. You know. I know what you guys are about. These are high school kids. You know, you don't have to do this, man." The person with the gun said, "We hear you, OG." Garner believed "OG" was short for "old gangster."
According to Billy Ray Garner, Benson said, "Fuck that nigger, he ain't nobody." Garner testified: "At that point I knew that I was in the wrong place. [¶] . . . [¶] I started walking backwards."
Billy Ray Garner took about six steps backward and then turned around. He saw his wife's friend and told her to run. Suddenly Garner heard "a pop," and gunfire hit him in the arm. He started running and then was shot in the back. Garner's injuries resulted in a hospital stay and follow-up surgery.
Partygoers estimated six to nine shots were fired. Fourteen-year-old Eric Castillo was struck in the head, foot, and abdomen. The head wound proved fatal, and Castillo was pronounced dead at the scene.
The Garners' 14-year-old daughter was hit by a bullet in the foot. A 17-year-old partygoer was hit in the calf and a bullet grazed his nose.
Other bullets were fired into the Garner home. Officers found evidence that at least 12 rounds were fired. Police found no evidence that other partygoers, such as those from the Bay Area, or the Garners were armed or fired weapons.
Officers arrived to find about 120 hostile people either walking away from the Garners' house or in their driveway. About a mile away, officers found defendant and four others, a group that caught their attention because one of them matched the description of the shooter. Officers found a .22-caliber revolver with six spent bullets and two unspent bullets in nearby bushes. Defendant told police he threw it when he saw them coming. The prosecution's expert could not determine whether the bullet recovered from Castillo's stomach was fired from that gun.
Defendant's Arrest and Interview
Defendant was born in 1989 and was 15 years old at the time of the 2004 shooting. Officers detained and interviewed defendant after the shooting. The interview was played for the jury.
A gunshot residue test found residue on defendant. Defendant told officers his fingerprints would be on the gun because someone had handed it to him. He ran with the gun and threw it when he saw the officers. According to defendant, McDonald gave him the gun after the party got out of control. McDonald also had a gun and fired six shots after a "Mexican dude" started firing first.
According to defendant, a dispute broke out in the backyard when a "gangster song" was played. People from Oakland and Stockton began cursing one another, yelling out epithets, throwing gang signs, and fighting. Partygoers from Oakland, including a big bald-headed man and a person with dreadlocks, confronted defendant's friend Murray and one of them said, "bitch meet me outside." Defendant said, "then some big dude said, let's take this outside again right now."
People gathered out front as the party shut down. Members of defendant's group got into a dispute with the person with dreadlocks and the bald man. Other people "came out."
Defendant told officers people from both sides were shooting. He began shooting toward people at the house. Defendant shot more than five times and told police, "I was just shooting. I shot like that." According to a detective, defendant held his arm out perpendicular to his body to demonstrate how he fired the gun. An officer repeated the demonstration by holding his hand straight out and saying "you're aiming right at them." Defendant agreed. Defendant told the officer, "I thought I got shot. [¶] . . . [¶] Because I was hearing them bullets . . . [¶] . . . [¶] [j]ust weezing [sic]. I heard em weezing like tschhhhh, tschhhhh."
Dawayne McDonald, one of the other men detained, exercised his Fifth Amendment right against self-incrimination and refused to testify at trial. (U.S. Const., 5th Amend.) McDonald's preliminary hearing testimony was read to the jury. During the preliminary hearing, McDonald could not recall any details of the shooting at the party or any previous statements to police.
The prosecution then played for the jurors a videotape recording of a prior police interview of McDonald. McDonald told officers that partygoers from Oakland and Stockton clashed, yelling and passing out guns. McDonald stated defendant fired six shots. Benson, Zamora, "Lamont," and Thompson also fired. McDonald said defendant fired into the crowd and must have hit someone.
Defendant testified he shot a gun the night of the party but did not fire into the crowd or aim at anybody. Defendant admitted he told officers he shot a gun "in the sky" and admitted saying "Fuck Oakland" the night of the shooting. According to defendant: "I wasn't shooting at nobody. [¶] . . . [¶] . . . I just shot to clear a way, man." Anyone who said defendant fired into the crowd was lying.
Jesse Zamora, also detained at the scene, testified he is a North Side Gangster Crip, or NSGC, as was his friend, Eddie Ortiz.*fn2 Zamora testified defendant was hanging out with gang members the night of the party, but was not a gang member himself. Zamora saw defendant at the party, but did not "know him on the streets."
Zamora learned of the party from a flier he saw at a Stockton mall. He thought it was a Bay Area party. Zamora called Benson and Ortiz and told them about the party. He and Ortiz brought guns to the party. Zamora left his gun in the car. After the party was shut down and tensions escalated, Zamora got his gun from the car and hung out with defendant, Ortiz, Benson, and maybe McDonald. Some people on their side were shouting where they were from, while others yelled out "Oakland." Zamora suggested they leave, but defendant called him stupid and told Zamora, "[W]e need to do it now." Zamora guessed defendant meant shooting. Defendant said, "This is our hood. We ain't leaving."
An "older" black man, about 40 years of age, approached the Stockton group and asked them to leave. At trial, Zamora testified he heard no response. However, in an earlier interview with police, Zamora said that defendant replied, "[W]e ain't going nowhere." Zamora also previously told officers the man approached defendant, not the entire group. People began shooting as the man walked back toward the house.
Zamora testified he saw defendant point a gun at the crowd and fire once or twice. Zamora admitted he fired his gun twice in the air but said he only fired to get others to stop shooting.
The jury also heard two statements Zamora gave to the police. Zamora heard about the party at the mall. Benson, Ortiz, and McDonald talked about going to the party. Zamora told police defendant fired at the crowd gathered in front of the Garner residence.
Benson admitted knowing North Side Gangster Crips members, such as McDonald, Ortiz, and Zamora. However, he denied belonging to the gang. Benson learned of the party from some girls just prior to the party. During the party, he went out front to smoke, and when he returned to the backyard everyone was told to leave. Partygoers gathered in front of the house and began exchanging words.
As members of the Stockton group gathered, Benson walked over to them "[t]o see what they was [sic] doing next, to see if there was another party that night." As he spoke with a friend from high school about going to another party, Benson heard shots ring out behind him. Benson did not see anyone with a gun, and he did not have a gun. However, previously Benson told officers defendant and Zamora had guns, which they fired.
McDonald's cousin testified the party ended shortly after she arrived. She walked to the corner when she left and then heard gunshots coming from "right by the house."
Jasmine Farley also arrived shortly before the party broke up. As she walked home, she "kind of" remembered two groups yelling at each other, with members of each group reaching into their waistbands as if they had guns. After she went around the corner, she heard gunshots ring out from near the house.
Maria Farley testified that the party broke up after people began arguing. As she left, two groups stood on opposite sides of the street arguing, but it did not look like they were going to fight. As she walked away, she heard shots fired.
Gang expert Detective Michael George testified that Benson, Zamora, Thompson, and Jonathan Brooks were documented members of the North Side Gangster Crips. George believed defendant was a member because he yelled "North Side" and "44 Townhome Crips" at the party and in juvenile hall. Zamora also stated defendant was a member. In October 2004 defendant admitted belonging to the gang.
In his post-arrest interview, defendant denied belonging to the gang but admitted hanging out with gang members. At trial, defendant testified he no longer belonged to the gang.
The jury found defendant guilty of all charges and found the alleged special circumstance and enhancements to be true. The court sentenced defendant to consecutive sentences of life in prison without the possibility of parole, plus four indeterminate terms of 25 years to life, plus a determinate term of 42 years 4 months. Defendant filed a timely notice of appeal.
DISCUSSION DAWAYNE McDONALD'S STATEMENT
Defendant argues the trial court erred in allowing the jury to hear a reading of the transcript of McDonald's preliminary hearing and to view a videotape of McDonald's statement to police. The court's actions, defendant contends, deprived him of his right under the Sixth Amendment to the United States Constitution to confront and cross-examine a witness. The People concede playing the tape was error, but argue it was harmless.
McDonald, when called as a witness at trial, invoked his constitutional privilege against self-incrimination. (U.S. Const., 5th Amend.) The prosecution did not offer McDonald immunity from prosecution.
The trial court ruled that McDonald was unavailable to testify, and it would not order the prosecution to offer immunity; the jury would not be told why McDonald was unavailable; the prosecution could use McDonald's preliminary hearing testimony; and that McDonald could be impeached with his statement to police.
The preliminary hearing transcript was read to the jury, and a videotape of a police interview with McDonald was played for the jury.
During the preliminary hearing, McDonald testified that he did not know who was shooting after the party. He also stated he did not tell officers that defendant and other partygoers had guns. All McDonald could remember about the melee was the sound of gunshots.
During the preliminary hearing, Detective Rodriguez discussed McDonald's statement to police. McDonald told officers that six people, including defendant, fired shots at the party.
The trial court ruled that McDonald's preliminary hearing testimony could be impeached with his statement to officers. The court cited Evidence Code section 770 and determined that evidence of McDonald's prior inconsistent statements was admissible. The court found the statements admissible even though McDonald "may not have been presented with those statements" or been given an "opportunity to address them in some fashion while on the stand during the preliminary hearing."
McDonald's preliminary hearing testimony was impeached with his statement to police. In the taped interview, played for the jury, McDonald told officers that defendant was one of the people who fired a weapon.
The People concede the trial court erred by permitting impeachment of McDonald's preliminary hearing testimony with the videotape of his earlier police interview. ...