Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County, Super. Ct. No. FSB053188, Brian S. McCarville, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Greenwood.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Phillips.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, Acting P.J.
In a retrial, a jury convicted Sidikiba Greenwood and Harold Phillips of murdering 11-year-old Mynesha Crenshaw in a hail of bullets fired into the apartment where she lived with her parents and seven siblings. Crenshaw died senselessly - the evidence showed Greenwood planned the fusillade, and Phillips and others executed it, to retaliate against a rival gang for the recent slaying of a fellow gang member. But they mistargeted Crenshaw’s home and, in addition to killing her, wounded her 14-year-old sister and, on their way to the apartment, shot at a gang member named Lucky Kelly. The jury convicted Greenwood of conspiracy, first degree murder, two counts of willful, deliberate and premeditated attempted murder, and shooting at an inhabited dwelling, and found gang enhancement and firearm allegations to be true on all counts. The jury convicted Phillips of second degree murder, two counts of attempted murder, and one count of negligent discharge of a firearm, and also found gang enhancement and firearm allegations to be true on all counts.
Defendants contend the trial court erred in denying their pretrial motion to exclude all gang evidence or bifurcate trial on the underlying crimes from the gang enhancement allegations; alternatively, conceding admission of “some” gang evidence may have been warranted, they complain the gang evidence admitted was “excessive.” They also argue the trial court abused its discretion in permitting an assertedly mentally ill former codefendant to testify, they challenge the sufficiency of the evidence to support the accomplice testimony against them, and they contend an instruction advising the jury the prosecution was not required to prove a motive for the crimes conflicted with the jury instruction concerning the gang enhancements. For the reasons that follow, we explain that defendants’ contentions are without merit. We therefore affirm the judgment except as noted in footnote 2, infra, regarding the necessity of remand for the trial court to impose sentence on the firearm discharge counts, before staying execution thereon and, similarly, to impose sentence before entering a stay of execution on the gang enhancements or, in the alternative, strike the enhancements.
I
FACTUAL AND PROCEDURAL BACKGROUND
The evidence established Greenwood as the “originator” and undisputed “godfather” or leader of a criminal street gang known as Pimps, Players, Hustlers, and Gangsters (PPHG). As the ultimate “shot-caller” in the gang, nothing happened without Greenwood’s approval, particularly crimes of the magnitude charged here, involving a retaliatory strike against a rival gang. The need for retaliation apparently arose from a routine marijuana transaction. On November 9, 2005, PPHG members Barry Jones and Sinque Morrison, along with a PPHG affiliate, Alonzo Monk, sought to buy marijuana at an apartment complex near Citrus Street in San Bernardino, but became embroiled in a gun battle with members of a rival gang, the Rolling 60’s. Jones died from a gunshot wound suffered in the shootout.
Within days, Jones’s family held a car wash to raise money for his burial. PPHG members attended the car wash, including Greenwood and Phillips. Other PPHG members present included Michael Barnett, Shawn Davis, Baybra Edwards, Tyshon Harris, Patrick Lair, Sinque Morrison, and Royal Small. Discussing Jones’s death and those responsible, Greenwood instructed his underlings, “Ya’ll know what you need to do after we go to my house and recuperate and go get our stuff so we can go retaliate.”
After the car wash, a host of PPHG members gathered at Greenwood’s house to arm themselves. The group agreed they would not let the Rolling 60’s get away with Jones’s murder. Morrison told the group that while driving past the Citrus Street apartments he saw the Rolling 60’s members who killed Jones. Greenwood said, “It’s time for y’all to go take care of business.” He added, “Do what y’all got to do. They up [sic] over there.” Not everyone had guns, so Morrison left and returned with a black duffel bag containing an “SKS” assault rifle and a.22-caliber rifle. Morrison handed Phillips the SKS rifle and showed him how to use it. The PPHG members left Greenwood’s house in a caravan of four cars and headed towards the Citrus Street apartment complex. Phillips was in one of the cars, but Greenwood stayed behind.
The record does not reveal the meaning of SKS.
Upon their arrival, Phillips and the other PPHG members entered the complex on foot. Barnett, who had gone ahead as a lookout, ran back to the group stating someone with a 12-gauge shotgun was approaching their location. Seeing a man advance through the swimming pool area, Davis fired his weapon, only to realize later, after he missed, that his target, Lucky Kelly, was a PPHG member. After Davis fired, everyone panicked and retreated to their vehicles. But another PPHG member, Marquis Taylor, came on the scene with information the Rolling 60’s were on the other side of the complex, in apartment 22. Exiting his car, Morrison declared the group should go “handle it.” Some PPHG members departed, but Morrison, Barnett, Davis, Harris, and Phillips headed towards apartment 22.
Roshatta Joseph lived in apartment 22 with her fiancé and their eight children. When the PPHG members arrived outside the apartment door, they lined up in formation, withdrew their guns, and fired on the apartment at the same time. A barrage of gunfire lasted for two minutes. Investigators later recovered more than 30 rounds of nine-millimeter and.45-caliber ammunition in the apartment. Lair, who stayed by the cars, testified he saw Phillips fire at least twice. Joseph’s daughters, Mynesha and Jaynita, were standing in the kitchen fixing dinner when the shots began. A bullet struck Mynesha in the chest, passed through her heart, exited her body, and passed through her left arm. The child bled to death within minutes. Her sister suffered a bullet wound in her right arm.
The PPHG members fled first to Greenwood’s apartment but, finding him absent, regrouped at the apartment of a member known as “2G.” Other members who had been at the apartment 22 shooting trickled in; Greenwood was already there. Davis returned his handgun to Greenwood. Morrison and another PPHG member inflicted a beating on Phillips because he had “spray[ed] all wild with the SKS” in the attack on apartment 22.
Phillips admitted to investigators he was at the apartment complex at the time of the shooting, but claimed he “just was standing there.” He claimed Greenwood forced him to accompany the others; he denied firing a gun. Phillips admitted he carried the SKS during the night of the shooting, but claimed he put the gun down and Barnett fired the weapon out of the window of the vehicle as Phillips drove. Phillips alleged he never intended to shoot his gun and that he was present “just to look good.” In his police interview, Greenwood denied and then admitted attending the car wash benefit for Jones. He admitted he was at 2G’s apartment at the time of the shooting.
The police set up a surveillance team to observe Greenwood’s neighbor, William Hollis, after receiving a tip that Hollis possessed a duffel bag containing weapons connected to the shooting. Officers recovered the bag, which contained gunshot residue, a shotgun shell and an empty box of nine-millimeter ammunition, but no guns. Hollis later admitted he took the guns from Greenwood and disposed of them.
On April 29, 2008, Greenwood and Phillips were placed in the same holding cell with Lair and a former PPHG member, Coasa Harvey. Lair was expected to testify, so Greenwood told Harvey to “get” Lair. When Harvey asked why, Greenwood replied, “Well, he can’t testify if he’s dead.” Greenwood also threatened Harvey if he did not follow through on Greenwood’s request, and Harvey later received a note that said, “If you snitch, you die.”
After the jury convicted defendants on all counts, the trial court sentenced Greenwood to consecutive 25-years-to-life terms for the murder count and a firearm enhancement, plus consecutive life terms for each attempted murder and consecutive 25-years-to-life and 20-year terms on firearm enhancements for the attempted murders, and stayed sentencing on the conviction for shooting at an inhabited dwelling and on the gang enhancements. The court sentenced Phillips to 15 years to life for the second degree murder conviction, plus a consecutive 25-years-to-life term for the firearm enhancement on that count, a consecutive midterm of seven years with a consecutive 25-years-to-life firearm enhancement on one attempted murder, and another consecutive midterm sentence of two years and four months, plus a consecutive 25-years-to-life firearm enhancement for the other attempted murder. The trial court stayed sentencing on the negligent discharge of a firearm count and on all the gang enhancements. Defendants now appeal.
As the Attorney General points out, and Greenwood agrees, the trial court must impose sentence on each defendant’s conviction for shooting at an inhabited dwelling or discharge of a firearm before staying execution of the sentence under Penal Code section 654. (People v. Deloza (1998) 18 Cal.4th 585, 592.) Similarly, the trial court must impose sentence on the gang enhancements before entering a stay of execution or, in the alternative, the trial court retains discretion to strike the enhancements. (People v. Sinclair (2008) 166 Cal.App.4th 848, 855; People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9; People v. Lopez (2004) 119 Cal.App.4th 355, 364; Cal. Rules of Court, rule 4.447.) Phillips suggests we simply strike the enhancements, but this is a matter for the trial court’s discretion. (Sinclair, at p. 855.)
II
DISCUSSION
A. The Trial Court Did Not Err in Admitting Gang Evidence or in Declining to Bifurcate the Gang Enhancement
Defendants assert the trial court erred by rejecting their pretrial motion to exclude gang evidence entirely or, in the alternative, to bifurcate the proceeding for a separate trial on the gang enhancement (Penal Code, § 186.22, subd. (b); all further statutory references are to the Penal Code unless noted). Admission or exclusion of evidence is committed to the trial court’s sound discretion (People v. Waidla (2000) 22 Cal.4th 690, 717), as is the question of bifurcation (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez). The trial court did not abuse its discretion in denying defendants’ motions.
All relevant evidence is admissible unless excluded under the federal or California Constitutions or by statute. (Cal. Const., art. I, § 28; Evid. Code, §§ 350-351; People v. Scheid (1997) 16 Cal.4th 1, 13.) Here, the gang evidence and expert testimony were relevant and therefore admissible to explain defendants’ deadly, armed assault as a retaliatory gang strike. (See, e.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 [retaliatory killing]; In re Sergio R. (1991) 228 Cal.App.3d 588, 597 [innocent bystander killed].) “Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167; see People v.Gonzalez (2005) 126 Cal.App.4th 1539, 1550 (Gonzalez) [“‘because a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence’”]; accord, People v. Martin (1994) 23 Cal.App.4th 76, 81 [gang activity or membership admissible as to motive, though damaging to defense].)
Additionally, as the trial court observed, the gang evidence explained the witnesses’ fear of retaliation and therefore was admissible. (People v. Harris (1985) 175 Cal.App.3d 944, 957.) And because “the ‘culture, habits, and psychology of gangs’... are ‘“sufficiently beyond common experience [such] that the opinion of an expert would assist the trier of fact, ”’” gang expert testimony is generally authorized where a gang enhancement is alleged. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512 (Garcia).) “[A]n expert may properly testify about the size, composition, or existence of a gang; ‘motivation for a particular crime, generally retaliation or intimidation’; and ‘whether and how a crime was committed to benefit or promote a gang.’” (Ibid., accord, Gonzalez, supra, 126 Cal.App.4th at p. 1550 [“Expert testimony repeatedly has been offered to show” gang culture, including motivation and manner in which offenses promote the gang].) Accordingly, the trial court did not err in denying defendants’ motion to exclude gang evidence or gang expert testimony altogether.
Nor did the trial court err in denying defendants’ bifurcation motion. Our Supreme Court observed in Hernandez, supra, 33 Cal.4th at page 1048, that because a “criminal street gang enhancement is attached to the charged offense, ” it “is, by definition, inextricably intertwined with that offense.” Accordingly, there is generally scant basis for bifurcation. (Ibid.) The high court explained: “[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation - including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like - can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (Id. at p. 1049.) Consequently, “[t]o the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050; cf. People v. Marshall (1997) 15 Cal.4th 1, 28 [cross-admissibility of evidence “ordinarily dispels any inference of prejudice” from joinder of charges].)
Hernandez recognized the possibility that “gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (Hernandez, supra, 33 Cal.4th at p. 1049.) This is not such a case. Cases posing the risk of undue prejudice rarely arise because, based on the public policy favoring unitary, efficient trials, a court may still deny bifurcation even when “some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself....” (Id. at p. 1050.) Accordingly, a defendant bears the burden of demonstrating the necessity of bifurcation. (See ibid.) As we explain, defendants failed to meet that burden here.
Defendants contend the trial court’s failure to bifurcate resulted in undue prejudice from the admission of “redundant” evidence of Phillips’s PPHG membership, evidence of other crimes committed by PPHG members, and foundational testimony by the prosecution’s gang expert on cross-examination concerning the criminal activities of other gangs. This evidence was admitted after the trial court denied defendants’ pretrial bifurcation motion. (See People v. Calderon (1994) 9 Cal.4th 69, 81, fn. 6 [trial court’s bifurcation ruling evaluated on basis of record at the time it was made]; People v. Hardy (1992) 2 Cal.4th 86, 167 [same].) In ruling on defendants’ bifurcation motion, the trial court expressly alerted the parties it would entertain objections to specific gang evidence as it arose. Having failed to object at trial, defendants forfeited their challenge on appeal to the evidence. (Evid. Code, § 353; see People v. Morris (1991) 53 Cal.3d 152, 187-188 [requiring party to object to specific evidence “allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal”], disapproved on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) And having failed to renew their bifurcation motion upon admission of the evidence, defendants failed to bring their present contention to the trial court’s attention.
Nevertheless, defendants assert admission of the evidence without bifurcating the enhancement deprived them of due process. We address the claim. (Cf. People v. Mendoza (2000) 24 Cal.4th 130, 162 [a ruling joining charges that is proper at the time it is made may become reversibly infirm if defendant demonstrates joinder “‘actually resulted in “gross unfairness” amounting to a denial of due process’”]; see also People v. Turner (1984) 37 Cal.3d 302, 313 [“After trial, of course, the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law”], disapproved on another point in People v. Anderson (1987) 43 Cal.3d 1104, 1149.)
Defendants’ contention that admission of specific gang evidence required bifurcation is flawed. First, allowing the prosecution’s gang expert to testify to Phillips’s gang experience was not redundant of Phillips’s admission he claimed PPHG membership. In denying the charges, including the gang enhancement allegation, Phillips required the prosecution to carry its burden of proving the enhancement beyond a reasonable doubt. In meeting this formidable burden, the prosecution was not required to proceed in a manner least damaging to Phillips. (See People v. Karis (1988) 46 Cal.3d 612, 638 (Karis) [under Evidence Code section 352, exclusion of evidence for undue “prejudice” does not bar “damaging” evidence; the terms are not synonymous].) The evidence of Phillips’s gang membership demonstrated the likelihood his offenses served a gang purpose. The expert relied on the observations of the officer who booked Phillips into jail, when Phillips claimed PPHG membership and stated, “I will always back my hood.” The trial court properly admitted the booking officer’s testimony as foundation for the expert’s opinion. And permitting fellow PPHG members to testify to Phillips’s gang membership corroborated the expert’s opinion. Consequently, the trial court did not violate due process by admitting multiple references to Phillips’s gang membership.
Second, the trial court was not required to bifurcate the proceedings based on the gang expert’s testimony describing PPHG’s origins, influences, number of members, geographical extent or turf claims, or that it was known to law enforcement for uncharged PCP drug trafficking, other murders, shootings and robberies. These factors were relevant to the prosecution’s obligation to prove, as a prerequisite for the enhancement, that PPHG qualified as a “criminal street gang.” (§ 186.22, subd. (b); see also id., subd. (f) [defining “criminal street gang”]; People v. Williams (2009) 170 Cal.App.4th 587, 608 [proof of enhancement requires proof of predicate pattern of criminal activity].)
True, Hernandez recognized the possibility that because requisite evidence of predicate gang activity “need not be related to the crime, or even the defendant, ... evidence of such offenses may be unduly prejudicial, thus warranting bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1049.) But here, in a murder trial, the bare mention of, as Phillips’s recounts it, PPHG’s drug “trafficking, other murders, shooting and robberies” could not prejudice defendants. The charged offenses - including murder and attempted murder - were as serious or more serious than PPHG’s antecedent crimes, and defendants point to nothing about the earlier offenses that was “unusually likely to inflame” a jury. (Cf. Verzi v. Superior Court (1986) 183 Cal.App.3d 382, 386, 388 [upholding denial of severance of charges where neither the charged rape or burglary were “‘“particularly brutal, repulsive or sensational”’”].)
Third, bifurcation was not required once the prosecution’s gang expert testified on cross-examination concerning other gang cases he investigated. Defendants protest the expert “advised the jury of 50 other unrelated cases he had investigated, in which a group of gang members armed[] themselves and ‘went out’; he told the jury that 45 of those incidents ended in a shooting and nine of those resulted in a killing. He also testified he had investigated 10 unrelated cases in which a gang sought retaliation for a killing; of those, five resulted in a shooting and four resulted in a killing.” (Bold in original.) Defense counsel, however, invited this testimony by asking specifically, “How many cases have you investigated multiple suspects arming up, mounting up..., [¶]... [¶] How many of those resulted in a shooting, ” and “How many resulted in a killing?”
Defendants were entitled to probe the foundation for the expert’s earlier opinions, in response to hypothetical questions, that “someone is going to end up getting shot” when “a group of six to ten armed gang members go out looking for a rival gang member” and that the likelihood of a shooting goes up if the gang “is going out in retaliation for the death of one of their own....” (See People v. Gardeley (1996) 14 Cal.4th 605, 618 [an expert’s opinion, like a house built on sand, is no better than facts on which it is based].) But having opened the door, defendants cannot complain of the answer they received. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1138-1139 [appellate challenge barred where defense counsel elicited evidence of defendant’s prior conviction]; People v. Johnson (1988) 47 Cal.3d 576, 597-598 [same].) Bifurcation was not required as a condition of due process at this point.
Nor was bifurcation required based on any of the other gang evidence the trial court admitted. In addition to discussing prior criminal conduct by PPHG members, the expert properly testified about matters of gang culture beyond the common experience of most jurors, including PPHG’s hierarchical structure, gang monikers, tattoos, and affiliation activities. (Garcia, supra, 153 Cal.App.4th at p. 1512.) The testimony was relevant to demonstrating PPHG’s gang identity and defendants’ roles within a violent criminal street gang, tending to show their motive, knowledge, and intent in a retaliatory strike against a rival gang. Thus, an objection to any particular gang evidence would not have required bifurcation to admit the evidence on the gang enhancement. There was no error in denying bifurcation.
Anticipating this conclusion, defendants argue that “while all this may explain why the court did not abuse its discretion in refusing to bifurcate trial of the gang enhancement from the guilt phase, it does not excuse the gang evidence ‘overkill’ that occurred in this case.” Defendants’ reliance on People v. Albarran (2007) 149 Cal.App.4th 214 is misplaced because, as defendants concede, the prosecution there failed to present any evidence the crimes were gang-motivated, other than unsupported expert opinion. Contrary to defendants’ suggestion, the gang evidence here was not “marginally relevant” and therefore “especially prejudicial, ” but instead central to explaining the reality of witness intimidation and the retaliatory origin and nature of what would otherwise be an incomprehensible crime. Defendants’ failure to object under Evidence Code section 352 that any gang evidence was cumulative forfeits their overkill claim. (Evid. Code, § 353; In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) In any event, the claim fails on the merits because, as noted, the fact that relevant and admissible evidence may prove damaging to the defense does not warrant its exclusion as overly prejudicial under Evidence Code section 352. (Karis, supra, 46 Cal.3d at p. 638.) Defendants’ challenge to admission of gang evidence is meritless.
B. The Trial Court Did Not Err in Concluding Lair Was Competent to Testify
Defendants contend the trial court erred in rejecting their challenge asserting their former codefendant, Lair, was incompetent to testify. Defendants assert the trial court “was on notice that Lair might be incompetent to testify (if his memory really was affected by his medication or his mental illness), no matter how competent he appeared in person.” (Boldface in original; italics added.) Defendants suggest Lair’s memory or mental problems may have been so pronounced that he “likely” could not discern the difference between the truth and a lie, and therefore the trial court should have disqualified him as a witness.
As a general rule, “every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” (Evid. Code, § 700.) But individuals who are “[i]ncapable of understanding the duty of a witness to tell the truth” (Evid. Code, § 701, subd. (a)(2)) are incompetent to testify (People v. Anderson (2001) 25 Cal.4th 543, 572-573 (Anderson); People v. Mincey (1992) 2 Cal.4th 408, 444). Determining a witness comprehends his or her obligation to tell the truth is a preliminary fact committed to the trial court’s sound discretion. (Anderson, at p. 573.) The party challenging the witness bears the burden of establishing the witness’s lack of competence (ibid.), and must do so by a preponderance of the evidence (People v. Farley (1979) 90 Cal.App.3d 851, 869).
Defendants assert they met the preponderance standard, but they overlook the standard of review. We presume the trial court’s rulings are correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In essence, defendants challenge the sufficiency of the evidence to support the trial court’s conclusion Lair was competent to testify. On any issue of disputed fact, however, we review the evidence in the light most favorable to the trier of fact’s determination. (People v. Elliot (2005) 37 Cal.4th 453, 466.) It remains solely the factfinder’s province to resolve conflicts in the evidence; we may not substitute our judgment on appeal. (People v. Bean (1988) 46 Cal.3d 919, 932-933 (Bean); People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) As we explain, the trial court reasonably could conclude Lair was malingering before the first trial to distract from suspicions he planned to commit perjury or to avoid testifying altogether and that, at the second trial, defendants failed to establish Lair could not grasp the duty to testify truthfully.
Lair pleaded guilty on the eve of the first trial to voluntary manslaughter and attempted voluntary manslaughter. The plea terms included Lair’s promise to testify truthfully. The trial court conducted a hearing after Lair’s attorney notified the trial court Lair made statements suggesting he intended to commit perjury.
At a hearing on the issue, Lair denied he harbored plans to lie. He revealed to his attorney he heard “voices” in his head: “The voices tell me to lie, but I won’t, I tell the truth.” Lair identified the voices as “Charles and Bill and James, ” claimed “[t]hey kind of been with me since childhood” and added that, just before the hearing, “They was [sic] trying to tell me to lie, I told them I couldn’t, I have to tell the truth.” Lair asserted he had been diagnosed with a mental condition 15 years earlier in juvenile hall, but he did not know the name of his ailment. He appeared to deny it was schizophrenia, stating, “I’ve heard [of schizophrenia] before, but I don’t know nothing about it.” Outside of custody, he took medication for his condition sporadically. But he admitted he received and took his medication regularly at the jail, which “keep[s] the voices down”; indeed, “Charles and James and Bill used to hang out more than what they hang out now.” Lair affirmed he understood “the difference between telling the truth and not telling the truth.”
Asked on cross-examination whether he ever hallucinated, Lair responded, “Oh, you’re talking about the little green guy in the tuxedo?” Lair elaborated: “[H]e hangs out a lot. He’s about 150 years old. I don’t know how he got that old. I guess I’m not the only gig he has.” Lair volunteered that “Charles and James don’t like Bill, because they think Bill is gay.”
As the hearing proceeded, the trial court had the court clerk telephone the jail for information about Lair’s medications. The call revealed, as the trial court stated for the record, that Lair took a nightly 30-milligram dose of Zyprexa, a “psychotropic medication for depression, ” and the same amount of Remeron, “again [a] psychotropic medication” that “improves memory.”
Lair’s attorney denied any concerns his client was mentally incompetent. Lair’s attorney answered “No, ” when the court asked again, “[Y]ou have not seen any indication of 1368?” (See § 1368 [detailing procedures if doubt arises as to defendant’s sanity].) Lair’s attorney offered to explain in chambers, if necessary, “what my investigator and I did concerning that [issue].” The trial court declined, accepting counsel’s assessment “as [an] officer of the [c]ourt”; nor did the defense request the in-chambers explanation as a prerequisite to Lair testifying.
The trial court examined Lair. The court asked Lair to explain “why you told your attorney that if you take the stand you’re going to lie?” Lair backtracked, explaining “it may have come out like that” but he “meant to say I remember things differently now.” For example, he stated his jail medication regimen helped him remember Greenwood did not give him a gun the night of the shooting, contrary to what he had told a detective. He claimed he now realized “Bill” had told him to lie to the detective.
After further cross-examination by counsel, the trial court excused Lair from the courtroom. The court concluded Lair had put on a “show” that made a “mockery” of the proceedings. Finding Lair could not be trusted to testify truthfully, the trial court vacated Lair’s plea bargain the next day. Before doing so, the court observed: “Does he suffer from a mental illness or not? I don’t know. That’s not what I’m evaluating or making factual findings [on], Counsel. I have no idea. Somebody threw the word, schizophrenia, et cetera. I have an attorney who had this gentleman plea, and I asked him directly right now is he 1368 and he says no. And I can vouch for that myself. I took his plea. Does he have some mental problems? With the indications that I have, probably.”
But the court explained, “The threshold [for] being a witness is very low. All you need to know is the difference between telling the truth and a lie and the consequences, that’s all.” The court informed defendants they could have more time to investigate Lair’s condition and offered to entertain motions to discover records potentially covered by patient confidentiality, stating, “[Y]ou can ask for getting into those issues.”
A month later, still in the midst of the first trial, Lair entered a new plea agreement with the prosecutor, with a renewed pledge to testify truthfully. Advised that Lair was being transported to the court, Phillip’s attorney noted, “I’ll probably be asking for a continuance if he is going to be a witness. I hate to do that. But we’re just going - we’re going to have to look into his background and his mental health.” The court stated, “[C]ertainly I will allow you to look into that history, ” and reiterated at the close of the hearing, “If you have any evidence that there is actually some mental issues, certainly I will consider it.” Lair did not testify at the first trial.
Before Lair testified at the second trial, the trial court conducted a hearing to determine his competence as witness. When the court asked Lair if he had an agreement to testify and if he understood he had to tell the truth, Lair responded affirmatively to both questions. Addressing counsel, the court inquired, “Based upon the out of presence discussions, do you feel the [c]ourt needs any more questions on the issue of capacity?” The prosecutor and each defense attorney responded, “No.”
Stating he “got scared and chickened out, ” Lair explained on direct examination that he did not testify in the first trial because he and his family had been threatened. According to Lair, he avoided testifying by “ma[king] the [c]ourt think that I was crazy by playing the role of a crazy person.” After Lair completed his testimony, the trial court granted defense counsel’s request for judicial notice of the hearing in the first trial, and the parties reached a stipulation to be read to the jury. The stipulation informed the jury: “[On] September 19, 2006, Daniel Mangan, Patrick Lair’s attorney, advised the Court that he had spoken with Mr. Lair[, ] who intended to perjure himself in the course of his testimony.” The stipulation also noted that, “[a]t that time, the [c]ourt conducted a hearing wherein Patrick Lair was called to testify and sworn as a witness for the purpose of determining whether he would testify truthfully.”
Defendants contend Lair’s testimony at the plea revocation hearing in the first trial demonstrated a mental problem that satisfied their burden to establish his incompetence as a witness. Alternatively, defendants assert the trial court erred by not conducting an inquiry into Lair’s mental competence, complete with a review of his medical records. Defendants reason that Lair’s initial testimony raised a doubt about his mental condition and therefore the trial court could not determine he understood the duty to testify truthfully without first determining he was mentally competent. We are not persuaded.
While the trial court has the duty, if a doubt arises, to determine a defendant’s mental competence (§ 1368), defendants point to no authority that the trial court must make a similar determination for a witness. Rather, the party quesstioning a witness’s competency has the burden to demonstrate his or her inability to grasp the duty to testify truthfully. (Anderson, supra, 25 Cal.4th at p. 573.) The party willing to place on the stand a witness who surmounts this low hurdle, but suffers from memory or mental issues, takes the risk inherent in doing so, since a witness’s ability to perceive, recall, and accurately recount events is grist for potent cross-examination. (See People v. Gurule (2002) 28 Cal.4th 557, 591-592 (Gurule).)
Defendants assert the trial court had a sua sponte responsibility to inquire into Lair’s mental health records, if any, because privacy protections inhibited their access. But defendants overlook that the trial court offered its help, stating at the end of the hearing on Lair’s initial plea, “[Y]ou can ask for getting into those issues.” Defendants never did so.
Defendants suggest it would have been futile to request the court’s discovery help because the court had, towards the end of the hearing, “stop[ped] issues about medication at this time, ” concluding, “I don’t think they’re relevant to the issue at hand.” The record indicates the court concluded Lair was “faking Bill, Joe and Bob.” Consequently, Lair could not be trusted to testify truthfully as his plea bargain required, thereby scuttling the agreement. Accordingly, Lair’s medications were, as the trial court noted, “irrelevant” at that time because, absent the plea agreement, it appeared he was not going to testify. But recognizing circumstances could change and that the prosecutor eventually might call Lair as a witness, as later occurred after his new plea agreement, the court expressly reminded the defense: “[I]f he does, ... Counsel, I will allow you to look into his medications, et cetera. I’m not stopping you from that.” The defense may have chosen not to pursue the matter because Lair’s counsel represented he investigated Lair’s purported mental issues and concluded he was competent, or because the stipulation suggesting Lair’s proclivity for perjury sufficed to undermine him as a witness. In any event, defendants cannot now foist on the trial court a sua sponte investigatory duty when it was their burden to demonstrate Lair’s incompetence. (See People v. Cudjo (1993) 6 Cal.4th 585, 622 [rejecting claim “that the the trial court should have inquired into the witness’s qualifications on its own”].)
We also reject defendants’ contention that Lair’s testimony at the hearing in the first trial was, by itself, sufficient to demonstrate memory or mental problems that disqualified him as a witness after his renewed plea bargain. The trial court reasonably could conclude Lair “play[ed the] role of a crazy person, ” as Lair later admitted, and that defendants failed to meet their burden to show Lair did not understand his duty to tell the truth.
Three reasons support the trial court’s conclusion. First, Lair took medication for depression and to improve his memory, not for schizophrenia or a similar mental illness. Defense counsel believed one of defendant’s medications could be used to treat schizophrenia, but he made no offer of proof or other effort to substantiate his impression, nor any attempt - with or without the trial court’s help - to determine if that were the case for Lair. To the contrary, the record at the hearing established Lair did not take the drug for that condition.
Second, Lair took his medication. Thus, to the extent one of the drugs aided Lair’s memory and, even assuming arguendo either of the two drugs treated or could treat mental illness, his prescription compliance weighed against finding defendants met their burden to demonstrate Lair’s mental functioning fell short of the low threshold for witness qualification.
Third, and most fundamentally, the evidence supports the conclusion Lair fabricated his purported mental health problems. He admitted as much at the second trial. His attorney in the first trial investigated the matter and attested he was mentally competent. He took his medications as prescribed for conditions that did not include schizophrenia or similar disorders. He affirmed he understood the difference between the truth and a lie - an affirmation bolstered, paradoxically, by his recognition and admission he lied in the past. Consequently, the trial court did not abuse its discretion in concluding Lair had the capacity to “understand[]the duty of a witness to tell the truth” (Evid. Code, § 701, subd. (a)(2)) and that Lair therefore qualified to testify (ibid.). The trial court, in finding a witness competent to testify, does not warrant that the witness will indeed tell the truth. It remains the parties’ obligation to ferret out falsehood through the trial process, including cross-examination. (See, e.g., Gurule, supra, 28 Cal.4th at pp. 591-592.) In sum, because the trial court could reasonably conclude defendants failed their burden to establish Lair’s incapacity as a witness, their appellate challenge is without merit.
C. Ample Evidence Corroborated the Accomplices’ Testimony
Greenwood challenges the sufficiency of the evidence to corroborate accomplice testimony incriminating him in the deadly assault on apartment 22. His challenge fails. “The corroborating evidence... must tend to implicate the defendant by relating to an act that is an element of the crime, ” but the independent evidence “‘may be circumstantial or slight and entitled to little consideration when standing alone....’” (People v. Abilez (2007) 41 Cal.4th 472, 505; see § 1111 [“A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense”]; see generally CALCRIM No. 335.) “‘The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.’” (Abilez, at p. 505.)
Phillips, in his reply brief, withdraws his opening brief’s prospective joinder in Greenwood’s arguments, conceding Phillips’s admissions and an independent witness placed him at the murder scene with an assault rifle, corroborating accomplice testimony he committed the crimes and allegations charged.
Here, the corroborating evidence was more than sufficient. As the Attorney General points out, ample evidence demonstrated Greenwood’s opportunity and motive to aid and abet the shootings, his possession of probable instruments of the fusillade and, in disposing of the weapons, consciousness of guilt. Each of these categories of independent evidence corroborated his guilt. (See People v. Szeto (1981) 29 Cal.3d 20 [opportunity and retaliatory motive corroborated accomplice testimony concerning gang defendant’s murder and related convictions]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1178 [same]; People v. Vu (2006) 143 Cal.App.4th 1009, 1022 [same]; People v. McDermott (2002) 28 Cal.4th 946, 986 [motive corroborates accomplice testimony]; see also People v. Keene (1954) 128 Cal.App.2d 520, 525 (Keene) [possession of probable instrument of a crime sufficiently corroborative], disapproved on another point in People v. Keller (1963) 212 Cal.App.2d 210; see also People v. Avila (2006) 38 Cal.4th 491, 569 [presence at conspiracy’s inception and recovery of same-caliber bullet fragments and casings sufficiently corroborative]; see id. at p. 563 [attempt to conceal involvement showed corroborating consciousness of guilt]; In re Pratt (1980) 112 Cal.App.3d 795, 931 [“‘consciousness of guilt... constitutes sufficient corroboration’”]; People v. Jones (1967) 254 Cal.App.2d 200, 214 [attempt to conceal evidence demonstrated consciousness of guilt, corroborating accomplice testimony].)
Greenwood attacks the evidence in each of these categories as, “at best, highly equivocal....” For instance, challenging his opportunity to participate in the murder conspiracy, he discounts his admission he was at the car wash when PPHG planned retaliation for Jones’s murder and that Sarah Jones testified he was among a group of members discussing retaliation during “[b]asically the whole car wash.” Instead, he highlights contradictions in Jones’s testimony. Also, although the gang expert identified Greenwood as PPHG’s unquestioned, sole leader - indeed, the gang’s ultimate “shot caller” because a retaliatory strike of this magnitude could not go forward without his approval - Greenwood notes that the expert offered no opinion on Greenwood’s intent and knowledge. From this, Greenwood reasons the expert’s testimony did not connect Greenwood to this particular offense, as necessary to corroborate accomplice testimony. Viewing the evidence in his favor, Greenwood also disputes whether the guns he had Hollis discard were the “probable” instruments of the crime (Keene, supra, 128 Cal.App.2d at p. 525), and he suggests he had reasons other than consciousness of guilt, including fear of felon-in-possession charges, for dumping the weapons.
At least two problems pervade Greenwood’s tack on appeal. First, undermining a particular piece of corroborative evidence or even a whole category is insufficient because only slight corroboration is needed, and here, as noted, there was ample corroboration in numerous categories of evidence. Second, we must view the evidence in the light most favorable to the jury’s verdict. (Elliot, supra, 37 Cal.4th at p. 466.) In essence, Greenwood argues the jury should have resolved conflicts in the corroborative evidence in his favor, rather than against him. But it is the jury’s exclusive province to assess the credibility of witnesses, resolve conflicts in the testimony, and weigh the evidence. (Sanchez, supra, 113 Cal.App.4th at p. 330.) The fact the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (Bean, supra, 46 Cal.3d at pp. 932-933.) Accordingly, Greenwood’s general approach is ill-suited for an appellate challenge and wholly without merit.
Moreover, Greenwood’s particular arguments are unavailing. For example, although the gang expert could not testify to Greenwood’s intent or knowledge in this specific shooting (see People v. Killebrew (2002) 103 Cal.App.4th 644, 658), his testimony nevertheless connected Greenwood to the crime, as required for corroborative evidence, by establishing his status as the gang’s shot caller for all major crimes. If all such crimes required Greenwood’s approval, this particular one did, too. Greenwood’s challenge to the sufficiency of the corroborative evidence fails.
D. The Trial Court Did Not Err in Failing to Clarify CALCRIM No. 370
Defendants argue the trial court erred by instructing the jury with on instruction on motive (Judicial Council of Cal. Crim. Jury Instns. CALCRIM No. 370) without specifying the instruction did not apply to the gang enhancement allegation. We disagree.
To the extent defendants’ challenge, raised for the first time on appeal, “merely goes to the clarity of the instruction, ” the challenge is forfeited. (People v. Cleveland (2004) 32 Cal.4th 704, 750.) But we reach defendants’ contention because they also argue CALCRIM No. 370 contradicted the gang enhancement instruction, CALCRIM No. 1401. A contradiction in the jury instructions affects the substantial rights of the defendant (§ 1259), requiring no objection for appellate review (ibid.; People v. Hillhouse (2002) 27 Cal.4th 469, 503 (Hillhouse)).
Defendants’ instructional attack is not novel. People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes) rejected an identical challenge. We find Fuentes persuasive.
There, the defendant faced charges of murder, attempted murder, assault, street terrorism, and other crimes involving the use of a firearm, and alleged gang enhancements pursuant to section 186.22, subdivision (b)(1). The trial court in Fuentes, as here, instructed the jury with CALCRIM No. 370, which states: “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.” (Italics added.) The defendant in Fuentes, as here, argued CALCRIM No. 370 contradicted the instruction given for the gang enhancement allegations, CALCRIM No. 1401. This instruction requires the prosecution to prove the defendant “committed or attempted to commit the crime for the benefit of, at the direction of, or in the association with a criminal street gang; [¶] [a]nd, the defendant intended to assist further or promote criminal conduct by gang members.” (Italics added.)
The Fuentes court rejected the defendant’s challenge to CALCRIM No. 370, concluding: “An intent to further criminal gang activity is no more a ‘motive’ in legal terms than is any other specific intent. We do not call a premeditated murderer’s intent to kill a ‘motive, ’ though his action is motivated by a desire to cause the victim’s death. Combined, the instructions here told the jury the prosecution must prove that [defendant] intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. [Defendant] claims the intent to further criminal gang activity should be deemed a motive, but he cites no authority for this position. There was no error.” (Fuentes, supra, 171 Cal.App.4th at pp. 1139-1140.)
The Fuentes court also distinguished People v. Maurer (1995) 32 Cal.App.4th 1121, on which defendants rely. Fuentes reasoned Maurer did not conflict with its conclusion because Maurer addressed section 647.6, punishing acts or conduct “motivated” by an unnatural or abnormal sexual interest in the victim. In distinguishing Maurer, the Fuentes court explained, “Since this offense includes a ‘motivation’ as one of its elements, a jury naturally would be confused by an instruction saying the prosecution need not prove the defendant’s motive.” (Fuentes, supra, 171 Cal.App.4th at p. 1140; see also Hillhouse, supra, 27 Cal.4th at p. 504, original italics [distinguishing Maurer because, “although motive is not generally an element of a criminal offense, ‘the offense of section 647.6 is a strange beast, ’ and it did have a motive as an element - an unnatural or abnormal sexual interest”].)
Here, the trial court did not err in instructing the jury the prosecutor need not prove motive while also instructing the jury the prosecutor must prove defendants had the specific intent to assist, promote, or further criminal conduct by gang members. Motive, intent, and malice are not synonyms - they are distinct mental states. (Hillhouse, supra, 27 Cal.4th at p. 504.) The court properly instructed the jury concerning the intent the prosecutor was required to prove to establish the truth of the street terrorism enhancement. We presume jurors are intelligent people capable of understanding the instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.)
Additionally, CALCRIM No. 370 by its terms applies to “the crimes charged, ” and not to gang enhancement allegations. (See People v. Snow (2003) 30 Cal.4th 43, 98 [no reasonable possibility of confusion in instructing with CALCRIM No. 370’s predecessor, CALJIC No. 2.51, because the instruction refers to “‘the crime charged, ’” not to an enhancement].) We find the reasoning in Fuentes persuasive, and defendants’ attempt to distinguish it unavailing. Therefore, there is no contradiction between CALCRIM Nos. 370 and 1401, and it is not reasonably likely the jury misunderstood or misapplied CALCRIM No. 370. No clarifying instruction was required.
III
DISPOSITION
The judgment is affirmed in all respects except for the sentence imposed, which the trial court must correct on remand consistent with footnote 2 ante.
WE CONCUR: FYBEL, J., IKOLA, J.