(Super. Ct. No. 08F07257)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Tom Curtis Bryant was charged with three counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a));*fn1 in each count it was alleged that defendant intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)), and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Counts one and two were based on a shooting on July 9, 2008, and count three was based on a shooting on July 28, 2008.
A jury found defendant guilty of count three and found true its enhancement allegations. As to counts one and two the jury was unable to reach a verdict, and the trial court declared a mistrial as to those counts. Sentenced to state prison for 42 years to life,*fn2 defendant appeals, contending (1) the trial court erred by admitting certain gang evidence; (2) the trial court erred by not instructing, on its own initiative, on attempted voluntary manslaughter; (3) there was insufficient evidence of great bodily injury; and (4) his sentence is unconstitutionally cruel and unusual. We shall affirm the judgment.
Between 7:30 and 8:00 p.m. on July 28, 2008, DeMarea Fulbright and his good friend, Phillip Tigner, were riding on a light rail train. Fulbright was a member of G-Mobb, an African-American street gang; Tigner was not affiliated with a gang. Several members of a rival African-American gang, Fourth Avenue Blood (FAB), including defendant,*fn4 were also riding on that light rail train. One of the FAB members recognized Fulbright as being the person who may have "jumped" (fought) another FAB member. When Fulbright and Tigner got off the train, a group of 10 to 15 FAB members, including defendant, confronted them.
After defendant and the other FAB members yelled gang slurs, they surrounded Fulbright and attacked him with their fists. Tigner joined the fight, exchanging punches with those who were fighting Fulbright. During the melee, Tigner felt something hard hit him on the back of the head, which he suspected was a gun. He turned around and punched the person who had struck him; this person was later identified as defendant.
Seconds later, Tigner heard a gunshot and took off running down the street. After a few blocks he stopped, because he felt a "burning" sensation on his side. He lifted his shirt and realized that he had been shot in his torso. There was a hole and he was bleeding. He began to feel "dizzy," but managed to make it on foot to Fulbright's home where they called for an ambulance. Tigner was taken to the hospital where he was treated for a "through-and-through"*fn5 gunshot wound to his right torso. He was released the next day after tests revealed no vital organs had been damaged.
Right after the incident, defendant and the other FAB members involved got back on the light rail. On the light rail, defendant told Keenan Williams, an FAB member, "I think I popped that Nigger. . . . I think I popped that Nigger 'cause after that I--I actually seen him run around the corner and I think he fell." In addition, defendant handed the gun to Christopher Jones, another FAB member. According to Jones, he gave the gun back to defendant because he (Jones) did not want to be blamed for the shooting.
On August 12, 2008, defendant was interviewed by Detective Justin Saario of the Sacramento Police Department. After initially denying any knowledge of the shooting,*fn6 defendant admitted that he pulled a gun from his pocket and fired it at the ground. According to defendant, the bullet skipped up and struck Tigner. In addition, defendant acknowledged there was an ongoing dispute between FAB and G-Mobb.
Defendant was interviewed a second time by Detective Saario. During this interview, defendant gave an alternate story about how Tigner was shot. Defendant stated that he was aiming for Tigner's legs, but when he pulled the trigger the gun "jerked up," which apparently caused him to hit Tigner's torso. Defendant added that he shot Tigner following a sequence of fisticuffs in which Tigner hit two guys defendant was with, then defendant hit Tigner in the back of the head, and then Tigner hit defendant.
I. Gang Evidence and the Letter
Defendant contends the trial court erred by admitting (1) "irrelevant, highly prejudicial and cumulative evidence" of defendant's gang membership and uncharged gang crimes, and (2) a letter containing, among other things, threats against witnesses. We disagree.