(Super. Ct. No. 06F02757)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 birthday celebration degenerated into a violent argument over the relative merits of rival gangs. Shouting turned into fighting, and fighting turned into gunfire, resulting in the death of a gang member. An amended information charged defendants Edwin Arthur Stevenson and Panfilo Torres with murder for the benefit of a criminal street gang. A jury found Stevenson guilty of murder and Torres guilty of the lesser included offense of assault with a firearm. The court sentenced Stevenson to 60 years to life in state prison and Torres to 14 years.
Stevenson appeals, contending insufficient evidence supports his murder conviction, the court erred in admitting gang video recordings, comments made during voir dire tainted the jury pool, instructional error, and sentencing error. Torres appeals, arguing instructional error and sentencing error. We shall direct the abstract of judgment in Stevenson's case be corrected to reflect accurate presentence credits and to delete the 10 year consecutive sentence for the gang enhancement on count one; in all other respects, we shall affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In this disturbing reprise of urban violence that afflicts our communities, the volatile combination of alcohol, drugs, and gang rivalry at a birthday celebration yielded tragic results. In the end, the victim, Hector "Bam Bam" Barrera, died of gunshot wounds. Torres shot Barrera in the stomach; Stevenson shot Barrera in the head and back.
An information charged Stevenson and Torres with murder and alleged both defendants personally used a firearm (count one); committed the offense for the benefit of a criminal street gang; and personally discharged a firearm, causing great bodily injury. (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b), (c), (d), (e)(1), 186.22, subd. (b)(1), 12022.7.)*fn1 The information charged Stevenson with possessing a firearm in violation of probation (count three) and possession of a firearm by a minor ward of the court (count four). (§ 12021, subds. (d), (e).) Co-defendant Kenneth Ray Andersen III was also charged with murder (count one), possession of a firearm by a convicted felon (count two), and unlawful discharge of a firearm at an inhabited dwelling (count five). (§§ 12021, subd. (a)(1), 246.) A jury trial followed.*fn2
In the early morning hours of March 26, 2006, Barrera threw his nephew, Mario Gonzales, a birthday party. A few days before the party, Stevenson was standing on a sidewalk when a group of unidentified men pulled up and began shooting. Stevenson's eye was wounded. That did not prevent him from joining the party for Gonzales, which was attended by about 30 people, including Barrera's girlfriend, Heather Boettcher, Andersen, and Torres. Barrera was a member of the Southside Park gang, a subset of the Norteno street gang. Dancing and drinking ensued, with Barrera, Andersen, and others rapping to music in a circle in the living room.
Nick Morales, a member of the Southside Park gang, also attended. On a second-floor balcony, Barrera and Morales spoke with Raymond Flores, a member of the Oak Park gang. Barrera belittled the Oak Park gang to Flores, saying the gang was weak and would disappear. Barrera and Morales also told Flores that Southside Park was a superior gang and advised him to join.
These taunts devolved into a verbal altercation over which gang was better. Torres joined in and began arguing with Barrera. Torres told his friends Manuel Paz and Flores to wait downstairs, and the duo complied.
Torres and Barrera continued to argue, and Barrera hit Torres in the face. Barrera and Morales began fighting with Torres.
People from downstairs came up to join the battle and began screaming out their gang loyalties. Joshua Allen, a Southside Park gang member, rushed to Barrera's defense. Andersen came upstairs with a gun and told everyone to "Break it up. Let 'em fight one on one."
Torres pulled out a semiautomatic handgun. Torres pointed the gun at Barrera and shot him in the stomach as Barrera struggled with Flores. Everyone fled and Barrera began swinging wildly, hitting several people. Stevenson left and got his rifle out of his car.
Barrera's girlfriend, Boettcher, heard the fight and found Barrera walking hunched over as people punched at him. Boettcher pulled Barrera away, and he told her he had been shot. He pulled up his shirt, revealing a gunshot wound below his chest.
Boettcher went outside to find Barrera's assailant. She heard someone shout "Oak Park nigga, Oak Park nigga." The wounded Barrera walked outside and said, "What's up, Southside Park," and raised his arms.
Stevenson and Barrera began to argue. Stevenson reached into a gray 1972 Chevrolet Monte Carlo and retrieved his M-1 carbine rifle. Stevenson yelled "West Nick" and cocked his rifle.
Barrera tried to get back into the house. Stevenson fired the rifle four to five times. Barrera was hit by several shots and fell.
Following the shooting, Torres left, carrying his gun. Torres arrived at a residence, and was joined shortly afterwards by Stevenson and Andersen. Andersen gave Flores his gun.
At the party, Boettcher told Barrera's nephew, Gonzales, to get a towel to stanch Barrera's bleeding. Boettcher tried to perform cardiopulmonary resuscitation before the ambulance arrived.
Later that day, Torres and Flores picked up Fabian Williams in the gray Monte Carlo. They went to the home of Sergio Ramirez, where they began sanding, and later spray painting, the car. Before they could finish, the police arrived.
The officers directed the group to sit on the curb. Williams held a jacket across his lap. When an officer attempted to handcuff Williams, Williams began to stand up. The officer directed him to sit back down on the curb, and as he did so, a black .45-caliber, semiautomatic handgun fell to the ground. The officers found a chrome colored, nine-millimeter handgun in the back seat of the Monte Carlo.
Approximately six weeks later, officers arrested Stevenson. Stevenson stipulated to owning a .30-caliber carbine rifle, a violation of his probation grant. He also stipulated he had been adjudged a ward of the Sacramento County Juvenile Court for an assault likely to produce great bodily injury. (§ 245, subd. (a)(1).)
The autopsy on Barrera revealed four gunshot wounds. The first was a graze wound to the left side of his scalp. The bullet did not enter the skull but caused bleeding on Barrera's brain.
The second bullet entered near Barrera's midabdomen. The bullet traveled through the tissue beneath the skin and exited on the lower right side of the abdomen. The third bullet entered Barrera's midback. The bullet pierced the muscles of the back and lodged between the shoulder blade and the top of the arm bone.
The fourth gunshot wound was fatal. It entered Barrera's body through the right lower back, traveling upward and hitting his liver and lung. The bullet hit the right bronchus, which brings air to the lung on the right side, and the trachea, or main airway, and lodged in Barrera's neck.
Gabriel Aguilar testified he did not believe Barrera belonged to a gang. Aguilar, who attended the party, stated several people were fighting on the porch. Barrera was being hit by several people.
After the fighting began, Aguilar turned off the lights because he was "afraid there could be shots fired." He went outside in an effort to calm people down. According to Aguilar, the party had nothing to do with gangs, but was merely a birthday party.
Aguilar testified Gonzales had a gun pointed at his head, but he could not identify who pointed the gun. Aguilar did not see anyone else with a gun. On cross-examination, Aguilar could not identify any of the defendants as being present at the party.
Stevenson testified in his own behalf. Stevenson spoke of his parents, who died of alcohol and drug abuse when he was a young child. He lived with his grandparents until they died in 2004.
After his father died, Stevenson, 10 years old, joined the Nortenos, since "[i]t seemed like it was the thing to do." When he was 13, Stevenson's grandparents moved to a Ukiah reservation. While living on the reservation, Stevenson continued to be active in Native American cultural activities, as he had been all of his life.
After the death of his grandparents, Stevenson returned to Sacramento. He was 15 years old. He spent time in custody on an outstanding warrant and in foster care. Stevenson also lived with Torres; the two had grown up together.
Stevenson did not think Torres was a gang member even though Torres had "West Nick" tattooed on both of his hands. Stevenson and Torres committed crimes together.
In the weeks before the party, Stevenson carried a gun for protection after being the target of several shootings. A few days before the party, Stevenson was the victim of the drive-by shooting that wounded his eye.
Prior to going to the party, Stevenson drank alcohol and took cocaine and Ecstasy. Stevenson went to the party with a group of people. After hearing gunshots, he got his rifle. According to Stevenson, someone was aiming a gun at the crowd, so he turned and shot at that person. He shot two or three times because someone was shooting at him. He shot to scare, not to kill, and denied the shooting was gang related.
After firing the rifle, Stevenson left in a car but could not remember what he did with the rifle. Stevenson was later arrested in Ukiah, where he had gone to scatter his grandmother's ashes.
James Hernandez, a professor of criminal justice, testified on Stevenson's behalf. According to Hernandez, Nortenos were "an identity," not a gang. Identifying oneself as a Norteno could mean the person was a gang member or was merely from Northern California. Some children that are removed from a stable family setting use gangs as surrogate families.
An expert in pathology, Curtis Rollins, also testified for Stevenson. Rollins reviewed the autopsy photographs and report. The angle of the entry wound on Barrera's abdomen led Rollins to opine that the person who shot Barrera was a few steps lower than the balcony.
Glenna Gabourie, who was staying at a residence near the party, testified she heard only one "shotgun blast" and heard at least three separate groups of shots. Another neighbor testified she heard three different sets of gunshots.
Stevenson's half brother testified regarding different Native American activities in which his family took part. He testified Stevenson was at home when their father died in the backyard of an overdose; Stevenson was 9 or 10 years old.
A clinical psychologist also testified regarding Stevenson's Native American background and family connections. The psychologist performed a psychological assessment of Stevenson. According to the psychologist, the trauma of finding his father dead when he was 9 or 10 years old caused Stevenson to experience flashbacks, nightmares, and anger. In response, Stevenson began to steal and became violent. The psychologist believed Stevenson's psychological traumas, substance abuse, uprooting, and transplantation into an Hispanic gang culture increased his sensitivity to perceived threats.
Torres testified that he is a member of the West Nicholas, or West Nick, subset of the Norteno gang. Prior to joining West Nick, Torres belonged to the Franklon gang.
In 2005 Torres, his brother, and Stevenson left the Franklon gang and started the West Nick gang. Tensions erupted between the old and new gangs over drug profits. Torres sold drugs for both gangs.
Torres had never met Barrera prior to the party and was unaware of any rivalry between the Southside Park and West Nick gangs. Torres owned the .45-caliber handgun confiscated by officers following the shooting. He got the gun for protection after Stevenson was shot by members of the Franklon gang.
The night of the party, Torres drank beer and "could have" smoked marijuana. Andersen told Torres about the party. Torres brought a loaded handgun for protection and rode to the party in a Monte Carlo. Torres found Andersen and Stevenson at the party.
Torres went up to the crowded balcony. He heard partygoers, including Barrera and Flores, saying Southside Park was a better gang and that Oak Park would not exist much longer. Afraid the situation would worsen, Torres wanted to leave. He told Nick Morales that if there was a problem he and his friends would leave.
Barrera took exception to this and began throwing punches, hitting Torres in the face. Torres fell and Morales began hitting him. Morales, Barrera, and another person punched Torres.
While Barrera was on top of him, Torres pulled the gun from his waist, pointed it at Barrera, and shot him. Torres aimed "toward [Barrera's] stomach and downwards." Torres shot Barrera because he believed he was in danger.
Torres then aimed at the ceiling and shot another round. People scattered and Torres ran to a dark-colored Honda and asked the driver to take him to his mother's house. Torres did not hear any other gunshots, nor did he see Stevenson with a gun.
When arrested the following day, Torres gave officers a fake name and fake birthday. He lied during his interview with the police.
Henry Jason, a Sacramento police detective, interviewed Torres the day after the shooting. Torres told Jason he was involved in a fight when he fired his gun at the party.
The jury found Stevenson guilty of counts one and three. As to count one (murder), the jury found Stevenson personally used and discharged a firearm, causing great bodily injury or death. The jury also found Stevenson was a principal in personally discharging and using a firearm, causing great bodily injury to a nonaccomplice. The jury also found true the allegation that Stevenson committed count one for the benefit of a criminal street gang. The jury found Torres guilty of the lesser included offense to count one of assault with a firearm, and found Torres personally used a firearm during the commission of the offense.
The court sentenced Stevenson to 60 years to life in state prison: 25 years to life on count one, plus an additional, consecutive 25 years to life on the section 12022.53, subdivision (d) enhancement, plus an additional, consecutive 10 years for the section 186.22, subdivision (b)(1) enhancement. The court also sentenced Stevenson to the midterm of two years on count three, but ordered the term to run concurrently with the term imposed on count one. The court sentenced Torres to 14 years in state prison: the upper term of four years on count one, plus an additional 10 years for the section 12022.5, subdivision (a) enhancement.
Both defendants filed timely notices of appeal.
DISCUSSION SUFFICIENCY OF THE EVIDENCE--MURDER
Stevenson challenges the sufficiency of the evidence in support of his conviction for first degree murder. According to Stevenson, the evidence fails to support a conviction ...