Opinion
D056500
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. DOMINIQUE K. MOSS et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD203169)
APPEALS from judgments of the Superior Court of San Diego County, John M. Thompson, Judge. Judgments affirmed in part, reversed in part and remanded for resentencing.
Defendants Sirron Norris and Dominique Moss were jointly tried for numerous crimes before a single jury. The jury convicted both of two counts of first degree murder (Pen. Code, § 187, subd. (a), counts 1 & 5), and found true the special allegations appended to counts 1 and 5. The jury also convicted both of four counts of attempted murder (§ 664/187, subd. (a), counts 2, 6, 7 & 8) and found true the special allegations appended to those counts. The jury also convicted both defendants of one count of shooting at an inhabited dwelling (count 9) and found true the section 186.22, subdivision (b)(1), allegation and the indeterminate firearm use enhancement allegation appended to count 9. The jury also convicted both of one count of conspiracy to intimidate a witness. (§ 182, subd. (a)(1)/136.1, subd. (b), count 11.) The jury separately convicted Moss of one count of robbery (§ 211, count 4) with a true finding on the gang enhancement appended to the robbery count, and one count of carrying a loaded firearm registered to another person. (§ 12031, subds. (a)(1) & (2)(F), count 10.)
All further statutory references are to the Penal Code unless otherwise specified.
On count 1, the jury found true two special circumstances allegations: multiple murder (§ 190.2, subd. (a)(3)) and murder perpetrated by shooting from a motor vehicle. (§ 190.2, subd. (a)(21).) The jury also found true the allegations that the murder charged in count 1 was committed for the benefit of a criminal street gang (§ 186.22, (b)(1)) and, in committing count 1, a principal was armed with a handgun that proximately caused death or great bodily injury within the meaning of section 12022.53. subdivision (d) (the indeterminate firearm use enhancement). On count 5, the jury found true the multiple murder special circumstance allegation, the section 186.22, subdivision (b)(1), allegation, and the indeterminate firearm use enhancement allegation.
On each of the attempted murder counts, the jury found true the section 186.22, subdivision (b)(1), allegation, and the indeterminate firearm use enhancement allegation appended to those counts.
The court sentenced Norris to two consecutive life terms without the possibility of parole, plus 150 years to life, plus a determinate term of 18 years 4 months. The court sentenced Moss to two consecutive life terms without the possibility of parole, plus 150 years to life, plus a determinate term of 23 years 4 months. Both Moss and Norris appeal.
I
FACTUAL BACKGROUND
Norris and Moss were members of a gang known as Skyline Eastside Piru (Skyline) and belonged to a subset of that gang known as the Gangsta Pimp Mafia or GPM. The Skyline/GPM gang's major rivals included a gang called Lincoln Park.
Three of defendants' fellow gang members were involved in the various crimes: Amon Dykes, Lamar Neal, and Glenroy Drew. Norris was a "shot caller" for this group. Neal and Drew testified as prosecution witnesses, and their evidence forms the crux of many of Norris's claims of error.
There were also three women who played significant roles in the events. Maureisha Johnson was Norris's girlfriend and mother of his child. Johnson drove a green Ford Taurus, and this Taurus transported the assailants involved in the Radio Drive shooting.
Rhonda Dixon was Moss's girlfriend, and acted as the go-between in the alleged conspiracy to intimidate Christina Brashears. Dixon drove a grey Toyota Corolla, which was present at the shootout at a Denny's Restaurant.
Brashears was Norris's former girlfriend. She was a waitress at the Denny's Restaurant where a shootout took place.
A. The February 26 Radio Drive Shooting (Counts 1-3)
Nonaccomplice Testimony
The victims of the Radio Drive shooting (RD shooting) were Curtis Howard and Danielle Coleman. Howard was an associate of the Lincoln Park Gang and Coleman was his girlfriend.
Around 9:00 p.m. on February 26, 2006, Howard and Coleman met some friends (Simone Cameron and Ashanti Ward) at a 7-Eleven store in southeast San Diego. They decided to go to Howard's home nearby and drove there in their respective cars. Howard, wearing a green shirt, drove Coleman's BMW car and Coleman sat in the front passenger seat. Cameron and Ward followed them in their car.
A gang expert testified Lincoln Park members sometimes associate with the color green.
As the two cars drove on Imperial Avenue, a dark Ford (later identified as Johnson's Taurus) pulled between their cars, and followed Howard's car as it drove on 60th Avenue and turned onto Radio Drive. When Howard stopped the BMW at a stop sign, the Taurus pulled alongside the BMW and someone in the Taurus fired multiple gunshots into the BMW. Both Howard and Coleman were hit. Howard later died from his wounds, and Coleman suffered significant injuries.
The next morning, Cameron gave police a partial license plate for the dark Ford that transported the shooter in the BMW. The partial plate matched only 13 vehicles in San Diego, and only one of them was assigned to a Ford Taurus. Police learned the Taurus was registered to Lavette Anderson, the mother of Johnson (Norris's girlfriend), and Norris had been in that car when he was stopped a few days earlier and a few miles from the RD shooting. Police also obtained cell phone records showing that, at 9:19 p.m. and again at 9:57 p.m. on the night of the shooting, Johnson's cell phone was used to make two phone calls that passed through two cell phone towers a few miles away from (and which bracketed the site of) the RD shooting.
The first phone call was passed through the cell phone tower located at 303 Palm Avenue and the second phone call passed through the cell phone tower at 6770 Aviation Drive.
We detail Drew's precise testimony because it forms the crux of Moss's claim of error under Bruton v. U.S. (1968) 391 U.S. 123 (Bruton).
About two weeks after the RD shooting, Drew was driving with Norris when they drove past the murder scene. Drew was not present at or involved in the RD shooting. Drew testified Norris told him that this was the place "they shot had shot the dude at." When the prosecutor asked Drew to relate Norris's exact words, Drew stated that Norris's words were "this is where I got that one guy." Norris later told Drew that Norris was in his girlfriend's car (referring to Johnson's Ford Taurus) and, when asked whether Norris told Drew why they had attacked, Drew answered that Norris said "he seen the dude, he had a green shirt on, so they started chasing him. They were shooting the dude."
Accomplice Testimony
Neal, an accomplice testifying for the prosecution, testified he was at Norris's house on February 26 when Moss arrived. Johnson arrived later driving her green Ford Taurus. Around 9:00 p.m., Norris instructed Moss to retrieve a gun hidden in a van outside the house, and the four then left in the Taurus to go to a 7-Eleven store in the territory claimed by Lincoln Park. Norris and Moss went inside the store while Neal and Johnson waited in the car.
Neal cooperated to obtain a "good deal" from the prosecution. He was told he was facing life in prison but, if he testified for the prosecution, he would receive 13 to 24 years.
When Norris and Johnson returned, the group (driven by Norris) drove off. However, Norris saw the victim in a green shirt driving a BMW, and said something about seeing a "leprechaun," a reference to Lincoln Park gang members. Norris followed the BMW and, when Moss leaned out the window preparing to shoot, told Moss to wait. When Norris was able to pull alongside the BMW at a stop sign on Radio Drive, Moss fired five to eight gunshots into the BMW. Norris stopped only briefly and then continued driving down the road while Moss was firing at the BMW.
Norris's brother testified Norris was home the entire evening of the RD shooting. A second witness also testified Norris and others were at home watching movies the entire evening of the RD shooting. Moss presented alibi testimony from his girlfriend and her mother, and proffered a DNA expert to undermine the statistical analysis of the swabs taken from the .380 handgun.
However, the same witness testified Johnson was among those present at the house watching movies, but the cell phone records showed Johnson's cell phone was used to make calls from various areas that night.
B. The March 3 Robbery (Count 4)
Latoya Wright, the victim of the robbery, owned a .380 semiautomatic handgun. On March 3, she tried to pawn it at a CashCo pawn shop, but the shop owner declined. Some African-American males overheard her efforts to pawn the handgun, approached her and asked her to sell it to them, but she declined.
After she shopped at an adjacent store, she began walking home. Two of the men followed her, and again asked to purchase the gun. Wright again refused, although she showed the gun to them before returning it to her purse. The men were around her and they "switched sides" as though positioning themselves to commit a crime. Wright became nervous and announced she was going inside her house. The lighter skinned man snatched her purse, with sufficient force to break the strap, and ran off. As he ran, he removed the gun from, and discarded, the purse. The second man stayed with Wright. She pursued the robber and called 911. She returned to the pawn shop parking lot where she saw some African-American males leaving in Drew's Cadillac.
Neal was at the pawnshop and corroborated Wright's description of the events. Neal saw Moss and another man follow Wright from the pawnshop. Shortly afterward, Neal saw Moss running back to the pawnshop parking lot, where Moss got into a car and left. Drew was at the pawnshop with several others but left quickly when he heard Moss had taken Wright's purse. Later that evening, Moss showed Drew the .380 pistol he had stolen.
A month and a half later, Wright was shown a six-pack of photographs and said one of them (Moss's photograph) looked like the purse snatcher but she was not 100 percent sure. She made similar qualified identifications at a live line-up and at trial.
C. The March 26 San Onofre Terrace Shooting (Counts 5-9)
Nonaccomplice Testimony
The victims of the San Onofre Terrace shooting (SOT shooting) were Darnel King, Bobby Towers, Rashard Hall and Michael Murphy. They lived on a street (San Onofre Terrace) within territory claimed by the Lincoln Park gang. They were not members of the Lincoln Park gang, but two of them were friends of Lincoln Park members.
On March 26, the victims were relaxing in a carport at Hall's house after dark. The group saw two men, wearing hooded sweatshirts and bandanas, walk out of the canyon. The two men stopped on either side of a nearby car, and Towers asked, "Who is that?" The two men then fired on the group. King was killed and Towers was wounded.
Drew drove a black Cadillac with primer spots on it, and Dykes drove a white Nissan Sentra. Three people on nearby Santa Isabel Drive heard the gunshots and then saw the shooters get into and leave the scene in cars consistent with the make, model and color of the cars driven by Drew and Dykes.
Police recovered five 9-millimeter casings, three .380 casings, and some bullet fragments from the scene. The .380 shots were fired from the handgun stolen from Wright. The DNA analysis of a sample taken from the .380 handgun had a mix from at least four people, and Moss, Norris and Drew could not be excluded as donors. A significant contributor to the sample had a DNA profile that matched Moss's DNA at a frequency of 1 in 580 African American males.
Accomplice Testimony
Neal testified he met with Norris, Moss, Dykes and Drew before the SOT shooting. Drew was upset that his cousin, Murphy, was giving Lincoln Park gang members information about where Skyline/GPM members lived. The group discussed going to Murphy's house to shoot him. Neal knew Moss had the .380 handgun because he had first seen Moss with the gun about one week earlier. They drove to the scene in Drew's black Cadillac and Dykes's white Sentra and parked on Santa Isabel Drive. Norris and Moss got out of the cars and walked through the canyon toward San Onofre Terrace. After Neal heard numerous shots being fired, Norris and Moss came running back to the cars, and everyone drove away. Drew's testimony about the events that night was substantively the same as that of Neal.
The events at the Denny's on April 15 did not result in charges, but were relevant to other aspects of the charged crimes.
The Denny's Restaurant on Spring Street in La Mesa, California, was a hangout for Skyline/GPM members. Brashears worked as a server at the Denny's, and was a former girlfriend of Norris.
On the evening of April 14, 2006, Brashears was working at the Denny's and several Skyline/GPM members (including Moss, Norris, Neal and Drew) were there. Later that evening, several Lincoln Park gang members arrived at the restaurant and went inside, and the rival gangs challenged each other to go outside to fight.
Neal testified that, once outside, a Lincoln Park member holding a gun said he would give them seconds to run away and started counting down. The Skyline/GPM members began running and, as he fled, Neal was shot in the leg. Drew testified Norris and Moss went to Moss's girlfriend's car, and Drew thereafter saw Moss holding the .380 handgun. Moss fired back at the Lincoln Park gang members but the .380 gun jammed.
Police quickly arrived at the scene and locked everyone into the Denny's Restaurant to enable police to search one person at a time. While they were locked inside, Moss gave Brashears a purse and told her to hide it. The purse was heavy and, without looking inside it, Brashears put the purse on top of a freezer in the kitchen. However, a police detective was directed to the purse, which he found on top of the ice machine, and he took it and looked inside. It contained a .380 handgun with a bullet in the chamber and a clip inserted. Police ultimately determined the .380 handgun was the gun stolen earlier from Wright and used in the SOT shooting.
The Denny's employees were the last people taken out of the restaurant, and Brashears noticed Norris, Moss and Drew were being detained in the parking lot. Police told her they wanted to question her and she was taken away in a squad car "right in front of everybody." She was concerned about being transported in front of everyone because she feared what they might think. At the station, she identified Moss as the person who handed her the purse. Moss was hospitalized with a gunshot wound to the leg and was arrested and booked into Juvenile Hall in absentia.
E. The Conspiracy to Intimidate Brashears (Count 11)
On April 17, 2006, Brashears phoned Norris. The call was recorded, unbeknownst to either Norris or Brashears, because there was a wiretap on Norris's phone. Norris told Brashears not to leave town because that would make it look like she was working with police. Norris told her people noticed she had left the Denny's Restaurant with police, but Brashears protested that she hadn't asked to be taken away, and she lied to Norris by denying that she told police Moss had given her the purse to hide. Norris talked about "playin' by the rules" and told her to deny any knowledge.
After speaking to Norris, Brashears met with police again. She asked that her name be redacted from any police reports, and changed her story to avoid implicating Moss. After this second meeting with police, Brashears again called Norris and told him police were focusing on him as the ringleader and wanted her help to set up Norris. She told Norris she was worried about being charged as an accessory because Moss had given her the purse "around too many people."
Within two weeks of the Denny's shootout, Norris (along with Neal and Drew) visited Moss, who was being held in custody. Moss expressed concerns that Brashears was talking to the police about the gun he had given to her to hide. Also within two weeks of the Denny's shootout, Norris told Drew that (1) Norris and Dixon had visited Moss, (2) Brashears was talking to police, and (3) they had to get rid of Brashears. Drew understood the latter statement to mean they intended to kill Brashears.
Moss was arraigned on May 1, 2006, and both Dixon (Moss's girlfriend) and Norris attended Moss's arraignment. Dixon overheard a prosecutor say something about a waitress hiding something for Moss. Later that day, Moss called Dixon from jail and asked her to do a three-way phone call with Norris, so Dixon called Norris using a separate phone. Moss told Dixon to tell Norris to "handle that Nasty Bitch," and Dixon relayed that message to Norris. Norris told Dixon to "tell him [Moss] it's a done deal, relax. [¶] . . . [¶] . . . just tell the homie, don't worry about nothing. I got it under control." After Norris ended his phone call to Dixon, Moss (who was still on the phone with Dixon) told Dixon to call Norris back and tell him not to wait. Dixon relayed that message to Norris, who agreed he could not prolong it.
The Moss-to-Dixon phone call was recorded because phone calls from jail are routinely recorded, and the Dixon-to-Norris phone call was recorded by the wiretap.
Brashears was sometimes referred to as "Nasty Bitch."
That same day, police warned Brashears her life could be in danger. They met with her the following day and reiterated their concerns about her safety. Police thereafter kept her under surveillance until May 9, when she was arrested for interfering with the investigation. The following day, police conducting a surveillance stopped Dixon while she was driving, and found ammunition in the trunk of her car.
At the time of trial, Brashears had received several threats. One threat was that she had to change her testimony or she would be killed.
II
SUMMARY OF APPELLATE CLAIMS
Norris and Moss jointly raise numerous claims of error. They assert (1) the trial court abused its discretion by denying the motions to sever counts 1 through 3 from the remaining counts, (2) the conspiracy convictions on count 11 must be reversed because the "overt acts" were not separate from the underlying conspiracy agreement, (3) it was error to permit an alternate juror to join the seated jury when the seated jury heard a "read back" of testimony, (4) the prosecutor violated the canons of ethics by interviewing excused jurors while trial was still in progress, and (5) the court abused its discretion when it denied a motion to disclose juror identifying information. Norris separately contends the evidence was insufficient to support the convictions on the SOT shooting because the only evidence of Norris's involvement was from the accomplice testimonies of Drew and Neal. Moss separately contends (1) the trial court committed Aranda/Bruton error by admitting an out-of-court statement by Norris that incriminated Moss, and (2) the court erred in denying his motion to suppress certain evidence.
They also jointly argue that certain errors in the abstract of judgment must be corrected. The People concede this argument, and we therefore address it only briefly.
People v. Aranda (1965) 63 Cal.2d 518; Bruton, supra, 391 U.S. 123.
III
ANALYSIS OF JOINT CONTENTIONS
A. The Severance Claim
Norris and Moss assert the court abused its discretion by denying their motions to sever the Radio Drive counts (counts 1 through 3) from the remaining counts.
Legal Framework
An accusatory pleading may charge two or more different offenses if the offenses are "connected together in their commission" or are "of the same class." (§ 954.) However, even if joinder is proper under section 954, "in the interests of justice and for good cause shown, [a trial court] may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (§ 954.)
Where joinder is statutorily authorized, there is a strong preference for joinder of charged offenses. (People v. Soper (2009) 45 Cal.4th 759, 772 (Soper); Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) The trial court's discretionary decision to sever counts must balance the potential prejudice of joinder against the state's substantial interest in the efficiency of a joint trial. (Soper, at pp. 772-773.) A joint trial "ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials" (Frank v. Superior Court (1989) 48 Cal.3d 632, 639) because a single trial "requires [only] a single courtroom, judge, and court attaches. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced . . . . In addition, the public is served by [the judicial efficiency realized in the prompt] disposition of criminal charges both in trial and through the appellate process." (People v. Bean (1988) 46 Cal.3d 919, 939-940.)
When the prosecution has the right to try properly joined charges together, the burden is on the defendant to "clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." (Soper, supra, 45 Cal.4th at p. 773.) Because of the public policy factors favoring joinder, a party seeking severance must make a stronger showing of prejudice than would be necessary to exclude other crimes evidence in a separate trial. (Id. at pp. 772-773.)
Cross-admissibility of evidence generally dispels any inference of prejudice from joinder. (Soper, supra, 45 Cal.4th at pp. 774-775.) However, joinder is permissible even when cross-admissibility is not present. (Id. at p. 775; § 954.1.) In determining potential prejudice from the joint trial of noncross-admissible charges, we consider: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; and (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Zambrano (2007) 41 Cal.4th 1082, 1128-1129, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The court must then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state. (Soper, supra, 45 Cal.4th at p. 775.)
Section 954.1 provides, "In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."
On appeal, to demonstrate error in the denial of severance, the defendant must make a clear showing of prejudice. (People v. Manriquez (2005) 37 Cal.4th 547, 574.) A trial court's denial of a request to sever properly joined charges amounts to a prejudicial abuse of discretion only if that ruling falls outside the bounds of reason. (Ibid. ) We consider the record before the trial court when it made its ruling. (Soper, supra, 45 Cal.4th at p. 774.) However, even where the trial court's ruling was correct when made, we must reverse if the defendant affirmatively shows joinder actually resulted in gross unfairness amounting to a denial of due process. (Id. at p. 783.)
Norris and Moss suggest we must apply a heightened scrutiny to the trial court's ruling because, although this was not a case in which the death penalty was imposed, the practical effect of the sentence here (life without the possibility of parole) makes it sufficiently analogous to warrant the heightened scrutiny suggested by Williams v. Superior Court (1984) 36 Cal.3d 441, 454. Even assuming the analogy drawn by appellants was convincing, however, it appears this aspect of Williams has no remaining vitality. (See Alcala v. Superior Court, supra, 43 Cal.4th at p. 1229, fn. 19.)
Norris's argument that his trial on the RD shooting was "grossly unfair" is largely dependent on his claim that there was no competent evidence to support his conviction on the SOT shooting, and therefore his trial on the RD shooting tainted the evidence concerning all counts and events connected to the latter murder. Because we conclude the evidence did support Norris's conviction in the counts connected to the SOT shooting (see part IV.A., post), Norris's "gross unfairness" argument appears to have limited vitality.
Application
Here, the RD shooting gave rise to charges of the same class as the SOT shooting, and therefore the threshold for joinder was met. (§ 954.) Moreover, there were substantial areas of overlapping and cross-admissible evidence. The evidence concerning Norris's and Moss's gang membership and the nature of Skyline/GPM, as well as the gang antipathy that provided the background for the motives for both shootings, was admissible as to both sets of shootings. Additionally, the testimonies provided by Neal and Drew were overlapping. More importantly, the evidence of each separate set of shootings, as well as the other crimes, would have been cross-admissible even had the RD shooting been severed for trial. The RD shooting would have been admissible to support the gang enhancement appended to the SOT shooting because evidence Moss and Norris had acted for the benefit of Skyline/GPM in connection with the RD shooting permitted an inference they harbored a similar intent with respect to the SOT shooting and, even though two-way cross-admissibility is not required (see People v. Cummings (1993) 4 Cal.4th 1233, 1284), the converse would also be true. Additionally, the RD shooting—insofar as it showed Norris and Moss acted as a team and Norris acted as the commander of the team in an earlier shooting by Skyline/GPM against a perceived Lincoln Park member—would have been admissible to provide some "corroborative evidence" for the accomplice testimony that Norris was one of the shooters at the SOT shooting. Finally, each set of shootings would have been cross-admissible because of the multiple murder special circumstance allegations. We conclude the trial court did not act beyond the bounds of reason in ruling that significant areas of cross-admissibility supported a unitary trial of all of the counts.
Even if cross-admissibility did not support a unitary trial, we still do not conclude that holding a unitary trial was an abuse of discretion under the remaining factors identified in People v. Zambrano, supra, 41 Cal.4th at pages 1128 to 1129. The first remaining factor—whether one set of charges was more inflammatory than the other set—is not applicable: the RD shooting involved an unprovoked ambush resulting in the death of one person and injury to another, and the SOT shooting similarly involved an unprovoked ambush resulting in the death of one person and injuries to others. Neither set of charges was significantly more inflammatory than the other. (Zambrano, at p. 1129.)
The enactment of section 954.1 may be dispositive of many of Norris's and Moss's arguments on appeal, because that section provides that the absence of cross-admissibility is not sufficient to require severance. (Soper, supra, 45 Cal.4th at pp. 779-780.)
Although Norris and Moss assert joinder was error under the second remaining factor, arguing it permitted conglomeration of a weak case with another weak case so that the totality of the evidence could have altered the outcome as to some or all of the charges, the evidentiary strengths were not significantly dissimilar. (See People v. Carter (2005) 36 Cal.4th 1114, 1155; People v. Mayfield (1997) 14 Cal.4th 668, 721.) The RD shooting involved evidence from Drew (a nonaccomplice in that event) and Neal (an accomplice) with corroboration based on the vehicle used (Norris's girlfriend's car) and cell phone records (showing Norris's girlfriend's phone was moving about the area around the time of the shooting). The SOT shooting similarly rested on the accomplice testimony of the same witnesses (subject to the identical degree of impeachment), and was buttressed by corroborative evidence of similar substantiality. Because the evidentiary strengths of those two shootings were not significantly dissimilar, we are not persuaded by Norris and Moss's claim that the trial court acted beyond the bounds of reason in concluding this factor did not militate in favor of severance. (People v. Carter, supra, 36 Cal.4th at p. 1155; People v. Mayfield, supra, 14 Cal.4th at p. 721.) Finally, the unitary trial did not convert this matter into a capital case, and therefore severance on that ground was not required.
We conclude Norris and Moss have not shown their trials were grossly unfair, and they have not made the clear showing of prejudice required to demonstrate reversible error from the trial court's denial of their motions to sever properly joined charges.
B. The Overt Acts Claim
Norris and Moss argue the evidence is insufficient to support their convictions on the conspiracy to intimidate a witness count (count 11) because a conspiracy requires an agreement to commit an unlawful act plus an overt act in furtherance of the agreement. Norris and Moss argue the only evidence supporting count 11 were the two phone calls on May 1, and that these cannot constitute both the agreement and the overt acts.
Legal Framework
To establish culpability for conspiracy, the prosecution must show the defendant and another person agreed to commit an offense, and must show the commission of an overt act by one or more of the participants in the agreement in furtherance of the agreement. (People v. Morante (1999) 20 Cal.4th 403, 416; People v. Russo (2001) 25 Cal.4th 1124, 1131; People v. Swain (1996) 12 Cal.4th 593, 600.) Conspiracy may be, and generally is, proven circumstantially. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.) The overt acts charged as part of the conspiracy can be circumstantial evidence of the conspiracy's existence and may establish the conspiracy's purpose and intent. (Ibid.) The existence of a conspiracy may also be " 'inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, quoting People v. Cooks (1983) 141 Cal.App.3d 224, 311.) "[T]he independent proof required to establish the existence of a conspiracy may consist of uncorroborated accomplice testimony." (Rodrigues, at p. 1134.)
The "overt act" requirement mandates proof that some outward act was done to pursue the crime and manifests the intent to accomplish the crime; the act need not be criminal in nature and need not amount to an attempt to commit the offense. (People v. Sconce (1991) 228 Cal.App.3d 693, 700; People v. Von Villas (1992) 11 Cal.App.4th 175, 243-244.) Once the defendant's agreement, intent, and an overt act are shown, conspiracy culpability is established even if the defendant was not present and did not personally participate in an overt act. (See People v. Morante, supra, 20 Cal.4th at p. 417; People v. Cooks, supra, 141 Cal.App.3d at p. 312.) Imposition of criminal culpability for a conspiracy is justified by a " 'group danger' " rationale, i.e., group association encourages more ambitious goals, increases the likelihood of success, and decreases the likelihood that the plan will be abandoned. (Sconce, at p. 700.)
Analysis
We conclude there was substantial evidence from which a jury could have found that Norris and Moss agreed, at some time prior to the May 1 phone calls, to "attempt[] to prevent or dissuade [Brashears] from attending or giving testimony" within the meaning of section 136.1, as charged in count 11. Drew testified that he and Norris visited Moss in the two-week period following the April 15 Denny's shootout—i.e. sometime before the May 1 phone calls. At that visit, Moss raised the problem of Brashears telling police Moss was the source of the .380 handgun found by police. Drew also testified that Norris told Drew—again within the two-week period following the April 15 Denny's shootout and sometime before the May 1 phone calls—that (1) Norris and Dixon had "visited" Moss, (2) Brashears was talking to police, and (3) they had to get rid of (i.e. kill) Brashears. There was therefore testimonial evidence from which a jury could have found the agreement to "prevent or dissuade" Brashears from testifying was in place before Moss's May 1 arraignment hearing. Moreover, there was other circumstantial evidence supporting the conclusion the agreement was in place before the May 1 phone calls because of the reactions by Moss, Dixon and Norris to the events on May 1. At the May 1 arraignment (which Moss, Dixon and Norris attended) the prosecutor said something about a waitress hiding something for Moss. A jury could infer from Moss's reaction—calling Dixon from jail and insisting she do a three-way phone call with Norris so Moss could emphasize the need for Norris to "handle that Nasty Bitch"—that Moss was surprised the object of the prior agreement had not already been accomplished. Indeed, both Dixon's words during Moss's panicked phone call (telling Norris of Moss's message to "handle" Brashears but also saying to Norris that "you already know [because] I told you earlier" (italics added) and Norris's replies to Dixon ("tell [Moss] it's a done deal, relax. [¶] . . . [¶] . . . I got it under control") would permit a rational trier of fact to infer this matter had been discussed earlier because Norris had already taken steps to accomplish the agreed-upon goal.
Drew testified he visited Moss only once while Moss was incarcerated, and later testified he was accompanied by Norris when he visited Moss in jail.
Because we conclude substantial evidence supports the conclusion the requisite agreement had been reached prior to May 1, 2006, we assess whether there is substantial evidence from which a trier of fact could have found there were subsequent overt acts in furtherance of the agreement. That aspect is satisfied as long as there is some outward act done to pursue the agreement manifesting an intent to accomplish the crime, even where such act is not criminal in nature and does not amount to an attempt to commit the offense. (People v. Sconce, supra, 228 Cal.App.3d at p. 700; People v. Von Villas, supra, 11 Cal.App.4th at pp. 243-244.) Indeed, the jury need not even unanimously agree on which overt act was done to pursue the agreement, as long as it unanimously agrees that some overt act manifesting an intent to accomplish the agreement was taken. (People v. Russo, supra, 25 Cal.4th at p. 1135 ["Disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy."].) Here, Moss's May 1 phone call emphasizing the need to act, or Dixon's subsequent call to Norris imploring him to act sooner rather than later, may have been the act the jury found to have been in furtherance of the conspiracy. Alternatively, a juror could have concluded Dixon's acquisition of ammunition, found in her possession just 10 days after she had implored Norris to act to protect her boyfriend from Brashears, may have been the overt act on which the jury relied. We conclude there was substantial evidence to support the conclusion that the agreement was in place some time before May 1, and that conduct thereafter satisfied the "overt act" requirement for purposes of count 11.
Because Moss and Norris's attack on the verdict on count 11 essentially claims there is no substantial evidence to support the verdict, we note there was some evidence supporting the conviction on an alternative factual basis. (Cf. People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Brashears testified that after police arrived at the Denny's Restaurant and took charge of the scene, the people inside the restaurant were taken outside one at a time, and she and the other restaurant workers were the last people taken outside. Norris, Moss and Drew were members of the first group taken outside, and this group was detained in the parking lot and were together "in one centralized . . . location," and they saw her being taken away by police. A reasonable jury could have concluded that Norris and Moss, knowing the danger posed by Brashears's knowledge of the source of the gun, agreed at that time that she needed to be dissuaded from cooperating with police, and that Norris's subsequent phone conversations with Brashears (in which Norris told her people noticed she had left the Denny's with police, to not leave town, and reminding her about "playin' by the rules") was the overt act in furtherance of the agreement. Additionally, just one day after Norris issued these warnings to Brashears, Norris had a phone conversation with Sydney Buchanon in which Norris said Brashears was "gonna die anyways" and "[h]er ass is grass. We were going to beat her up at first and then [unintelligible]," which could provide additional circumstantial evidence of both the agreement and that steps had been taken to implement the agreement.
C. The Read-back Claim
Norris and Moss contend the court committed per se reversible error when it allowed an alternate juror to be present when the seated jury was present in the courtroom for a read-back of certain testimony. They argue this procedure (1) invaded the sanctity of the jury's deliberations in violation of section 1089 under the rationale of People v. Bruneman (1935) 4 Cal.App.2d 75 and (2) sent an implicit signal to the seated jury to expedite its deliberations in violation of the principles articulated by People v. Keenan (1988) 46 Cal.3d 478.
Background
The empanelled jury began its deliberations on Monday, September 14, 2009. At the end of that day, the jury sent a note to the court requesting a read-back of the testimonies of Drew and Neal the next morning. The court was aware that one of the empanelled jury members (Juror No. 4) had previously informed the court that he would become unavailable starting on September 18 because of a prepaid vacation. The court also observed that, because of the length of the testimony entailed in the read-back requested by the jury, it appeared likely "that we'll lose [Juror No. 4]." As a result, the court decided (over the objection of defense counsel) to have the last remaining alternate juror present for the read-back, and to conduct that read-back in the courtroom so that the alternate juror would not have access to anything in the jury room produced during the initial day of jury deliberations.
The jury and the alternate juror, along with the court reporter, were present in the courtroom during the read-back of Neal's testimony. At the conclusion of that session, the jury informed the court it wished to return to the jury room to deliberate on whether they still wished to hear the testimony of Drew, and did so unaccompanied by the alternate juror. The jury then informed the court it still wished to hear Drew's testimony, and the jury and the alternate juror (along with the court reporter) returned to the courtroom and heard the read-back of Drew's testimony. The empanelled jury then returned to the jury room, without the alternate juror, to resume its deliberations. The empanelled jury reached a verdict later that afternoon.
Legal Principles
The right to trial by an impartial jury includes, as an implicit corollary, that the jury's deliberations will be "conducted privately and in secret, free from all outside intrusions, and extraneous influences or intimidations." (People v. Oliver (1987) 196 Cal.App.3d 423, 428.) Some courts have held that it is per se reversible error for an alternate juror to be "presen[t] in the jury room" with the empanelled jury "during their deliberations" (People v. Bruneman, supra, 4 Cal.App.2d at pp. 76, 81, disapproved on other grounds by People v. Valles (1979) 24 Cal.3d 121, 127, fn. 2), although more recent authority suggests that "[t]oward expediting disposition of a case, the court and counsel may well determine that the particular case calls for such innovation" of permitting the alternate juror to be silently present during deliberations. (Valles, at p. 27.)
Analysis
The procedure adopted here insulated the alternate juror from being present during any discussions among the empanelled jury, or from even being exposed to any materials the empanelled jury might have generated from those discussions, and there is no hint the alternate juror said anything to any empanelled juror. Norris and Moss appear to argue, regardless of the absence of any evidence that the alternate juror actually influenced the jury's discussions, the mere presence of an outsider at any point after a matter is submitted to a jury and before it returns its verdict is reversible error. However, the concern identified in Bruneman from the presence of a stranger during jury deliberations was the chilling effect on deliberations when the privacy of the jury's discussions is invaded. (People v. Bruneman, supra, 4 Cal.App.2d at pp. 80-81.) No similar impact is present here, because all of the discussions among the empanelled jurors took place in the sanctity of the jury room without the presence of any outsider. (Accord, People v. Love (1937) 21 Cal.App.2d 623, 628 [court learned juror had become intoxicated during deliberations and had doctor enter with bailiff to check on juror; defendant argued doctor and the bailiff were unauthorized persons present in the jury room, rendering mistrial mandatory; court found no merit because "[t]here isn't anything in the record to indicate that the doctor and the bailiff or either of them were present while the jury were deliberating on a verdict"].)
The court's decision in People v. Oliver, supra, 196 Cal.App.3d 423 confirms our understanding of the vice that may be present when strangers intrude on deliberations. In Oliver, the court reporter conducted a read-back of testimony in the jury room, and hence the court reporter was an "outsider" who was "in the presence" of the empanelled jury. However, the court analyzed the issue of error not merely because an outsider was present, but rather was concerned because that outsider was present while the jury was deliberating. (Id. at pp. 426-427.) The court concluded that, while the presence of the outsider during deliberations was error, it was not per se reversible. (Id. at pp. 428-436.) Instead, the Oliver court concluded the trial court erred when it granted a mistrial because the unrebutted evidence showed the jurors were not chilled by her presence and the reporter did not provide any input into those deliberations. (Id. at pp. 435-437.) Here, the presence of the alternate juror had no chilling impact on the deliberations, and the alternate did not contribute to those deliberations, because there were no deliberations in the presence of the alternate. The presence of the alternate does not trigger the concerns presented by Bruneman.
Norris and Moss alternatively assert the presence of the alternate juror sent an implicit signal to the empanelled jury that haste was necessary, in violation of the admonition that trial courts should "refrain from placing specific time pressure[s] on a deliberating jury . . . ." (People v. Keenan, supra, 46 Cal.3d at p. 534.) The alleged "signal" of which Norris and Moss complain is that the jury would lose one of its empanelled members to a prepaid vacation if the jury did not reach its decision by the following day, which would require the seating of the last remaining alternate. However, the court was already aware that a juror would become unavailable starting on September 18, and there is no suggestion the other jurors were not similarly aware of that impending deadline, regardless of the presence of the alternate juror during the read-back. Accordingly, any "time pressure" was already extant, regardless of the presence of the alternate juror during the read-back, and we conclude the decision to have the alternate present during the read-back did not place any previously nonexistent time constraints on the deliberative process.
D. The Ethics Claim
Norris and Moss next assert the prosecutors violated Rule 5-320(B) of the Rules of Professional Conduct, and the violation deprived Norris and Moss of their federal and state constitutional rights.
Background
During trial, the court received numerous reports of possible juror intimidation. Ultimately, the court decided to dismiss two jurors (Juror Nos. 1 and 10), at the request of both defendants and over the prosecution's objection, because an investigation had commenced into the possibility they had been victims of intimidation and therefore their continued presence on the jury had become "problematic."
When court reconvened four days later, defense counsel reported he understood one of the excused jurors had spoken to the prosecutors some time after the last court hearing, and defense counsel asked who had been involved in that conversation. The prosecutor stated the conversation occurred with Juror No. 10, and that two deputy district attorneys involved in trying the present case (along with an investigator and a detective) had attended the meeting with Juror No. 10. The subject matter discussed at the time was the alleged intimidation, and did not involve the merits of the ongoing criminal trial.
Legal Framework
Rule 5-320(B) of the Rules of Professional Conduct provides that "[d]uring trial a member connected with the case shall not communicate directly or indirectly with any juror," and the rule states that "[f]or purposes of this rule, 'juror' means any empanelled, discharged, or excused juror." (Rules Prof. Conduct, rule 5-320(I).)
Analysis
Norris and Moss argue this violation of professional ethics (1) constitutes error and (2) mandates per se reversal of the verdicts. However, neither contention is persuasive. Norris and Moss cite no authority for the first element of their argument— that alleged ethical violations by prosecutors not amounting to prosecutorial misconduct provide grounds for asserting reversible error—and the law appears to be to the contrary. (See, e.g., Commonwealth v. Miranda (Mass. 2010) 458 Mass. 100, 108 [even if Board of Bar Overseers concluded prosecutor's involvement in reward program violated ethical rules, "that decision may not be used collaterally to attack the defendant's conviction; the board's decision would have no bearing on the defendant's claims that the prosecutor's conduct amounted to structural error and violated his due process rights"].) Moreover, even if allegedly unethical conduct occurring outside of court and having no effect on the evidentiary presentations in court could nevertheless be deemed a trial error, Norris and Moss have cited no authority supporting their claim that the misconduct should be deemed per se reversible error. Because California appears to require at a minimum that a defendant show "how an alleged breach of the ethical rule affected the verdict" (see People v. Maury (2003) 30 Cal.4th 342, 408-409 [dicta]), and no showing of that effect is present here, we conclude Norris and Moss's claim that the prosecutor's conduct in this action violated Rules of Professional Conduct, rule 5-320 does not provide grounds for reversing the judgment.
E. The Juror Identification Claim
Norris and Moss assert the court abused its discretion by denying their motion to disclose juror identifying information. Norris and Moss argue the identifying information was necessary to enable the defense to investigate whether it had a viable basis for a new trial motion—i.e., jury misconduct to the extent the jury discussed the alleged intimidation during deliberations. Norris and Moss assert this court should conclude the denial of the motion was an abuse of discretion, and the proper remedy is to remand for investigation into jury misconduct and to permit a potential motion for new trial based on evidence developed by the investigation.
Background
At the end of the court day on August 25, 2009, Juror No. 10 asked to address the court about a concern and, outside of the remainder of the jury, the court inquired about this concern. Juror No. 10 stated that he (and other jurors) had outside the court seen persons who had been observing the proceedings in court, say words to each other to the effect that "those people are involved" or "that's one of them," suggesting those were the jurors involved in the trial. However, Juror No. 10 specifically assured the court that nothing about the instances would prohibit Juror No. 10 from continuing to act as a juror. After the juror left, defense counsel expressed concern whether Juror No. 10 or any of the other jurors had been tainted as a result of observing those comments by spectators, and asked the court to inquire further about what other jurors had been involved and to determine what occurred. The court agreed to make a general inquiry of the jury as a whole to ask whether anything had taken place that they felt was inappropriate or had in any way impacted their ability to act as fair and impartial jurors and, if any juror raised his or her hand, to further talk to those jurors. The following day, the court asked, "Has anyone, outside of this courtroom or inside the courtroom, done or said anything that any of you feel served to in any way attempt to intimidate, sway you, influence your decision in this case in any way?" (Italics added.) Juror No. 11 stated there was "[a] very small comment[,] [i]t wasn't a big deal," and explained the one incident, but assured the court it would have no influence on the juror's ability to decide the matter impartially.
On August 31, 2009, Juror No. 10 reported another discomfiting experience with a spectator. Juror No. 10 indicated there was "[n]othing verbal, but enough to be aware of," and indicated that "[no] matter where I go downtown, I'm running into the same individual," and described the individual to the court as one of the spectators at the trial.
On Friday, September 4, 2009, the court heard additional reports in chambers raising concerns that some persons (apparently associated with the defendants) had engaged in inappropriate behavior toward jurors. Juror No. 10 related two incidents. In the first set of incidents, occurring on the Wednesday and Thursday before the in-chambers court hearing, Juror No. 10 reported that he was at a nearby shopping mall during the lunch break two days earlier and, as he was leaving to return to court, he saw a tall person (who had been sitting in court next to Norris's father) staring at Juror No. 10 as the juror walked by, and the tall person made eye contact with Juror No. 10 "not in . . . a friendly manner." The next day, the same tall person was in the courtroom when he again stared at Juror No. 10 while making simultaneously making a subtle motion that "was either scratching his forehead or making a sign of a gun with his index finger to his temple."
Juror No. 10 related a final incident in which he, along with Juror No. 1, had grown concerned that someone was watching them after they had been released on Thursday evening and were at a nearby trolley stop waiting to go home. They both described an incident in which a black male in a car had parked illegally near the trolley stop close to the courthouse and had been in a position to watch Juror No. 1, and had driven around the block only to re-park in a location that allowed the driver to watch the trolley stop, and then had again driven around the block only to return to where the driver could watch the trolley stop and appeared to be looking at the two jurors. However, both jurors assured the judge they could remain as fair and impartial jurors.
The court, as well as defense counsel, appeared concerned these jurors may have "tainted" the rest of the jury by relating their experiences to the other jurors. The court then asked Juror Nos. 1 and 10 whether they had discussed their experience or any type of incident "with any other juror," other than between themselves. Juror No. 10 answered "no." Juror No. 1 said he had "heard some scuttlebutt . . . that another juror [Juror No. 10] has been followed," but "[t]hat's all I heard." The court directed Juror Nos. 1 and 10 not to discuss the incidents with their fellow jurors, but elected to retain on them on the jury for the balance of that day. The court denied the defense motion to have the jury questioned about the "material from Juror [No.] 10," and thereafter resumed the evidentiary portion of trial. However, at the end of that day, the court recognized that Juror Nos. 1 and 10 had become embroiled in an investigation of potential tampering and therefore excused them.
When the jury reached a verdict two weeks later, the jury sent Juror Note 3 to the court, which note stated:
"(1) The jury had completed deliberations and reach[ed] a verdict [¶] (2) the jury would like to understand what had happened with regard to jury intimidation from the judge [¶] (3) what is the procedure for leaving the court re intimidation [¶] (4) we would appreciate it if D.A. Fox could explain to the jury what has happened in the cases associated w/ this one."
After receiving the verdicts and polling the jury, the court informed the jury that they were dismissed and they were permitted but not required to talk to the attorneys about the case, and any juror who wished to do so could remain. However, the record is silent on whether any juror made him- or herself available to discuss the matter after being dismissed.
Moss, joined by Norris, moved for an order under Code of Civil Procedure sections 206 and 237 to obtain juror identifying information. The motion argued that Juror Note 3 suggested the jury may have improperly learned of and discussed the experiences of Juror Nos. 1 and 10, and therefore may have engaged in misconduct by considering matters that should not have been considered by the jury when reaching a verdict. The prosecution opposed the motion, contending Norris and Moss had not made a prima facie showing of good cause under the standards articulated in People v. Rhodes (1989) 212 Cal.App.3d 541, and therefore the court should exercise its discretion and deny the motion.
At the hearing on the motion, the court concluded the defendants had not established good cause to release the private juror information. After indicating it had reviewed the trial transcripts concerning the handling of Juror Nos. 1 and 10's problems (including the specific inquiries it had conducted with those two jurors) and the transcripts of the earlier generalized inquiry directed to the jury as a whole on whether anyone had tried to intimidate the jury in any way, the court concluded the questions posed by Juror Note 3 did not provide sufficient grounds to suspect any improper conduct by the jury that would justify the release of confidential juror information. The court specifically concluded that, although the defense interpretation of the genesis of question 2 in Juror Note 3 was not implausible and might have referred to the jury's awareness of the problems encountered by Juror Nos. 1 and 10, it might alternatively have referred either to the court's generalized inquiry about possible intimidation or may simply have been that the jury had surmised Juror Nos. 1 and 10 had been dismissed because of intimidation factors and the jury was "simply inquiring about the bases for that, for their own safety once the case was over." Because there were no additional facts that would show which construction of the question was accurate, the court concluded releasing the jury information would be to countenance a "fishing expedition," and "betting on the [out]come that we are going to find something" is an inadequate basis for releasing the confidential information. The court also concluded the other two questions in Juror Note 3 were more likely attributable to distinct matters (i.e. matters other than the jury's awareness of the problems encountered by Juror Nos. 1 & 10) and therefore did not provide any additional factual bases for release of the confidential juror information.
Although the defense argued the other two questions reflected a preoccupation with the intimidation of Juror Nos. 1 and 10 and supported its interpretation that the preoccupation tainted the jury's deliberations, the court found the second inquiry ("what is the procedure for leaving the court re intimidation") reflected a "routine . . . request" by jurors in gang cases to not have to "walk through some gauntlet to get outside of the courthouse" where persons affiliated with the defendants and victims might be present. The court found the last inquiry (asking about "what had happened in the cases associated w/ this one") reflected an understandable curiosity about the cases involving other codefendants or coconspirators involved in the case "since there was discussion ad nauseum with regard to their testimony and what they were getting from their testimony" during the course of the trial.
Legal Framework
Code of Civil Procedure sections 206 and 237 are designed to maximize the safety and privacy of trial jurors after they have served as jurors, while retaining the defendant's ability to contact jurors after trial if he or she shows sufficient need for such information. (See Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087, 1096; People v. Granish (1996) 41 Cal.App.4th 1117, 1124.) Code of Civil Procedure section 206 authorizes a criminal defendant to petition for access to personal juror identifying information (their names, addresses and phone numbers) when the sealed information is "necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).) The petition must be supported by a declaration that includes facts sufficient to establish good cause for the release of the information. (Code Civ. Proc., § 237, subd. (b).) If the court determines the petition and supporting declaration establish a prima facie showing of good cause for release of the juror information, the court must set a hearing, unless the record establishes a compelling interest against disclosure. (Ibid.) If the court sets a hearing, Code of Civil Procedure section 237 allows jurors to protest the petition's grant, and "[a]fter the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court . . . the juror is unwilling to be contacted by the petitioner." (Code Civ. Proc., § 237, subds. (c), (d).)
To demonstrate good cause, a defendant must make a sufficient showing " 'to support a reasonable belief that jury misconduct occurred.' " (People v. Jones (1998) 17 Cal.4th 279, 317.) The alleged misconduct must be " 'of such a character as is likely to have influenced the verdict improperly.' " (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Good cause does not exist where the allegations of jury misconduct are speculative (People v. Wilson (1996) 43 Cal.App.4th 839, 852), and speculative allegations may not be used as grounds to initiate a " 'fishing expedition[]' by parties hoping to uncover information to invalidate the jury's verdict." (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.)
A trial court's order denying a request for personal juror identifying information is reviewed for abuse of discretion. (People v. Jones, supra, 17 Cal.4th at p. 317.)
Analysis
Norris and Moss's argument below, which they resurrect on appeal, begins with the factual predicates that (1) "at the time of the verdict the jury had not been provided with any information on the record regarding 'jury intimidation' " (italics added) and (2) after the verdict the jury asked "what had happened with regard to jury intimidation." Norris and Moss argue these facts were sufficient to demonstrate a reasonable belief of jury misconduct by inferring from these facts that the jury must have learned of the subject matter of jury intimidation from comments made by to the jury by Juror Nos. 1 and 10. Norris and Moss further assert the receipt of this information was juror misconduct, and that (1) such information was discussed during deliberations by the remaining jurors and (2) it was "likely to have influenced the verdict improperly.' " (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.)
Although they are correct that after the verdict the jury asked "what had happened with regard to jury intimidation," Norris and Moss are incorrect that the source for that inquiry necessarily were remarks from Juror Nos. 1 and 10, because Norris and Moss are incorrect that "at the time of the verdict the jury had not been provided with any information on the record regarding 'jury intimidation.' " The entire jury had been polled by the court and specifically asked whether "anyone, outside of this courtroom or inside the courtroom, [had] done or said anything that any of you feel served to in any way attempt to intimidate, sway you, influence your decision in this case in any way?" (italics added), and Juror No. 11 stated there had been a minor incident, and explained the incident, and then assured the court it would have no influence on that juror's ability to decide the matter impartially. Indeed, the inference drawn by Norris and Moss—that Juror No. 1 or Juror No. 10 must necessarily have told some other juror about experiencing intimidating conduct—is an inference that would have required the court (as trier of fact in connection with the motion) to have disbelieved Juror Nos. 1 and 10 (e.g. their assurances that they did not reveal their experiences to other jurors), and to have concluded that (contrary to their representations) these jurors had relayed the information during an extremely limited time window.
The lunch experience of Juror No. 10 occurred on Wednesday, and the trolley station incident of Juror Nos. 1 and 10 occurred after the rest of the jury had parted company with Juror Nos. 1 and 10 on Thursday night. By 8:44 a.m. the following morning, the court began calling and questioning Juror Nos. 1 and 10 about the lunch time and trolley incidents, and at 9:06 a.m. Juror Nos. 1 and 10 were admonished not to speak to the other jurors. After a 45-minute recess, trial proceedings resumed and testimony was taken for the next hour. Upon completion of that testimony, the court held a 10-minute hearing at which it was decided to excuse Juror Nos. 1 and 10, and they were then immediately excused from further service. There is no suggestion Juror Nos. 1 and 10 had any further contact with any juror after they were excused. Accordingly, the only time frames available for Juror Nos. 1 and 10 to have "tainted" the jury with their experiences were in the few minutes before court started on Friday morning, which Juror Nos. 1 and 10 denied, or during the recess, which assumed they violated the court's instructions (i.e. not to speak to their fellow jurors) immediately after receiving those instructions. Under these circumstances, a court could well conclude Norris and Moss had not made a sufficient showing " 'to support a reasonable belief that jury misconduct occurred.' " (People v. Jones, supra, 17 Cal.4th at p. 317, italics added.)
Moreover, there is nothing in Norris and Moss's showing (apart from speculation) that the experiences of Juror Nos. 1 and 10 were discussed during deliberations, or that they were "likely to have influenced the verdict improperly." (People v. Jefflo, supra, 63 Cal.App.4th 1314, 1322.) We do not conclude the trial court's decision to reject Norris and Moss's effort to conduct a " 'fishing expedition[]' . . . hoping to uncover information to invalidate the jury's verdict" (People v. Rhodes, supra, 212 Cal.App.3d at p. 552), was an abuse of its discretion.
IV
ANALYSIS OF SEPARATE CONTENTIONS
A. The Corroboration Claim
Norris separately contends the evidence was insufficient to support the convictions on the SOT shooting (counts 5 though 9) because the only evidence of Norris's involvement consisted of Drew's and Neal's accomplice testimonies.
Legal Framework
Section 1111 prohibits a conviction based "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." The bar against a conviction based solely on an accomplice's testimony (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1157) appears rooted in the notion that evidence of an accomplice should be viewed with caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity. (People v. Wallin (1948) 32 Cal.2d 803, 808.)
The requisite corroboration must, without aid from the accomplice's testimony, connect the defendant to the charged offense, but the corroborative evidence may be circumstantial, slight and entitled to little consideration when standing alone. (People v. Davis (2005) 36 Cal.4th 510, 543; People v. Zapien (1993) 4 Cal.4th 929, 982.) Corroborating evidence need not be sufficient to establish the defendant's guilt or corroborate every fact to which the accomplice testified. (People v. Traub (1959) 175 Cal.App.2d 709, 712; People v. Davis, supra.) It must raise more than a suspicion or conjecture of guilt, and is sufficient if it connects the defendant with the crime in such a way as to reasonably satisfy the trier of fact as to the truthfulness of the accomplice. (People v. Hooker (1954) 126 Cal.App.2d 394, 401; People v. Davis, supra.)
Analysis
We conclude there is some evidence, apart from the testimonies of the accomplices, that corroborates the accomplices' testimonies. Norris was a member of GPM, and his gang moniker "LK" (representing "Lincoln Killer") showed his antipathy towards the Lincoln Park gang. The SOT attack occurred in Lincoln Park gang territory and the unprovoked nature of the attack provided some evidence, however slight, that it was motivated by gang-related reasons. There were two attackers, and Norris had no alibi for the window of time during which the attack occurred. Evidence that a defendant has the motive and opportunity for committing the offense can provide sufficient corroboration. (People v. Vu (2006) 143 Cal.App.4th 1009, 1021-1022.) Moreover, forensic evidence tied Moss to the SOT shooting (based on the DNA evidence found on the .380 handgun used in that attack), and there was evidence independent of the accomplice testimony that Moss and Norris had recently teamed together to engage in shooting Lincoln Park rivals. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1178 [accomplice testimony that the group had committed charged murder was corroborated by independent evidence of gang membership and that same group had engaged in another attack less than one month earlier].) Indeed, Norris's latter efforts to prevent police from linking the .380 gun with his group, which efforts gave rise to the witness intimidation charges discussed above (see part III.B., post), provided some evidence Norris knew the significance of that gun's connection to the SOT shooting, providing some evidence to corroborate Norris's involvement in the SOT shooting.
Given the independent forensic evidence that Moss was one of the two shooters, the testimonies from Brashears and a gang expert that Norris was "clearly in charge and the one they looked to for leadership," and Norris's role as the one who controlled the actions of Moss in connection with the RD shooting, the gang-related motives for the SOT shooting provides some additional evidence that Norris (as the leader of the Skyline/GPM gang to which Moss belonged) was the director of an attack directed at the rival gang.
We conclude there was sufficient corroboration of the accomplices' testimonies within the meaning of section 1111, and therefore reject Norris's claim that the evidence was insufficient to support the convictions on counts 5 through 9.
B. The Bruton Claim
Moss contends that admission of certain evidence violated Bruton. He complains of Drew's testimony that Norris told Drew he (Norris) was in his girlfriend's car and "told me that he [saw the victim, who] had a green shirt on, so they started chasing him. They were shooting the dude." (Italics added.) Because of the highlighted plural pronouns, Moss asserts this evidence implicated him in violation of Bruton and Aranda.
Legal Framework
"The Aranda/Bruton rule addresses the situation in which 'an out-of-court confession of one defendant . . . incriminates not only that defendant but another defendant jointly charged.' " (People v. Brown (2003) 31 Cal.4th 518, 537.) "A criminal defendant has a right, guaranteed by the confrontation clause of the Sixth Amendment to the United States Constitution, to confront adverse witnesses. The right to confrontation includes the right to cross-examination. [Citation.] A problem arises when a codefendant's confession implicating the defendant is introduced into evidence at their joint trial. If the declarant codefendant invokes the Fifth Amendment right against self-incrimination and declines to testify, the implicated defendant is unable to cross-examine the declarant codefendant regarding the content of the confession." (People v. Lewis (2008) 43 Cal.4th 415, 453 (Lewis).)
Thus, in Bruton, supra, 391 U.S. 123, the United States Supreme Court held that in the context of a joint criminal trial, a defendant's rights under the confrontation clause of the Sixth Amendment were violated by the introduction of a nontestifying codefendant's confession that named and incriminated the defendant. In Richardson v Marsh (1987) 481 U.S. 200 (Richardson), the United States Supreme Court limited the scope of the Bruton rule in a manner similar to the limitations adopted in Aranda. In Richardson, the United States Supreme Court considered the effect of a redacted confession made by one of the two defendants on the other defendant. (Richardson, supra, 481 U.S. at p. 203.) The Richardson court held that at a joint criminal trial, the confrontation clause is not violated by the admission of a nontestifying codefendant's confession when a proper limiting instruction was given to the jury and the confession was redacted to eliminate the nondeclarant defendant's name and any reference to his or her existence. (Id. at pp. 208, 211.)
A few years before Bruton, the California Supreme Court in Aranda, supra, 63 Cal.2d 518 had reached a conclusion similar to the conclusion reached in Bruton. Aranda concluded codefendant confessions incriminating another defendant impermissibly violated the nondeclarant's confrontation rights if the declarant does not take the stand. However, Aranda also held a codefendant's confession may be introduced at a joint trial if the confession can be edited to eliminate references to the defendant without prejudice to the confessing codefendant. (Id. at pp. 530-531; see also Lewis, supra, 43 Cal.4th at p 454.) We refer to Moss's argument as a Bruton argument in part for ease of reference and in part because Aranda, to the extent it announced a rule governing the admissibility of evidence, was abrogated by the "truth in evidence" provision of Proposition 8. (See People v Fletcher (1996) 13 Cal.4th 451, 465.)
During the trial in Richardson, the trial court permitted the prosecution to present to the jury the redacted confession of one defendant, Williams, but only insofar as the confession would be redacted so as to "omit all reference" to his codefendant, Marsh "indeed, to omit all indication that anyone other than . . . Williams" and another person had "participated in the crime." (Richardson, supra, 481 U.S. at p. 203.) The trial court also instructed the jury not to consider the confession against Marsh. (Id. at p. 205.) As redacted, the confession indicated that Williams and the third person had discussed the murder in the front seat of a car while they traveled to the victim's house. (Id. at pp. 203-204, fn. 1.) The redacted confession contained no indication that Marsh or anyone other than Williams and the third person had been in the car. (Ibid.) However, later in the trial, Marsh testified that she had been in the back seat of the car when Williams and the third person discussed the murder. (Richardson, supra, 481 U.S. at p. 204.) For that reason, in context with other evidence presented at trial, Williams's confession could have helped the jury conclude that Marsh knew about the murder in advance and that she had knowingly participated in the crime. (Ibid.) Nevertheless, the Richardson court determined the admission of the confession at issue was sufficiently dissimilar from the admission of the codefendant's confession in Bruton with respect to its implication of the nondeclarant so as not to constitute Bruton error. The Richardson court noted the declarant's confession in Bruton was "incriminating on its face," and " 'expressly implicat[ed]' " Bruton, whereas Williams's confession amounted to "evidence requiring linkage" that "became" incriminating with respect to Marsh "only when linked with evidence introduced later at trial." (Richardson, at p. 208.)
In Gray v. Maryland (1998) 523 U.S. 185 (Gray), the United States Supreme Court considered a redacted confession that fell somewhere between the confessions at issue in Bruton and Richardson. In Gray, "the prosecution . . . redacted the codefendant's confession by substituting for the defendant's name in the confession a blank space or the word 'deleted.' " (Gray, at pp. 188, 192.) The Gray court concluded that simply redacting a confession to replace a defendant's name "with an obvious indication of deletion, such as a blank space, the word 'deleted,' or a similar symbol," is insufficient under Bruton to eliminate the constitutional confrontation problem identified in Bruton. (Gray, at pp. 192-194.) The court explained:
" Bruton, as interpreted by Richardson, holds that certain 'powerfully incriminating extrajudicial statements of a codefendant'—those
naming another defendant—considered as a class, are so prejudicial that limiting instructions cannot work. [Citations.] Unless the prosecutor wishes to hold separate trials or to use separate juries or to abandon use of the confession, he must redact the confession to reduce significantly or to eliminate the special prejudice that the Bruton court found. Redactions that simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result." (Gray, supra, 523 U.S. at p. 192.)
In reaching this conclusion, the Gray court observed that such statements operate just like a confession that names the defendant by pointing an accusatory finger at the person "sitting at counsel table," i.e., the codefendant. (Gray, supra, 523 U.S. at p. 193.) The Gray court acknowledged a jury had to use inference to connect the blanks in the redacted statement to the defendant, and that "Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially." (Id. at p. 195.) However, the Gray court concluded that Richardson's application depended "in significant part upon the kind of, not the simple fact of, inference." (Gray, at p. 196, italics omitted.) In Gray, the court noted, "[t]he inferences at issue . . . involve[d] statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial." (Gray, at p. 196.) According to the Gray court, by replacing a proper name with the word "deleted," the redacted confession in that case resulted in an "accusation . . . ' . . . more vivid than inferential incrimination, and hence more difficult to thrust out of mind.' " (Ibid.) The Gray court suggested that further redaction, beyond simply using a blank space, the word "delete," or a symbol in place of a proper name, could render a confession admissible in a joint trial. (Ibid.) The Gray court provided an example of an alternative method by which the prosecutor and/or court could have redacted the confession in that case that would have met Bruton's standards:
"Consider as an example a portion of the confession before us: The witness who read the confession told the jury that the confession (among other things) said,
" 'Question: Who was in the group that beat Stacey?
" 'Answer: Me, deleted, deleted, and a few other guys.' [Citation.]
"Why could the witness not, instead, have said:
" 'Question: Who was in the group that beat Stacey?
" 'Answer: Me and a few other guys.' " (Gray, supra, 523 U.S. at p. 196.)
We apply the Bruton-Richardson-Gray framework to resolve Moss's claim of error. (People v. Hampton (1999) 73 Cal.App.4th 710, 718.)
There appears to be an emerging line of authority suggesting Crawford v. Washington (2004) 541 U.S. 36 and Davis v. Washington (2006) 547 U.S. 813 have largely eviscerated Bruton. (See, e.g., People v. Arceo (2011) 195 Cal.App.4th 556, 571-575.) However, the People have not raised this argument and, considering our conclusion, we need not determine whether Bruton retains any vitality when applied to nontestimonial statements of nontestifying codefendants.
Analysis
We conclude Drew's testimony did not violate Bruton. First, a close reading of Drew's testimony reveals that the only words Drew actually attributed to Norris were "this is where I got that one guy," which does not offend Bruton because the statement has no reference to anyone else. The balance of Drew's testimony (that Norris said "he [saw] the dude, he had a green shirt on, so they started chasing him. They were shooting the dude") is Drew's paraphrasing of Norris's statements, and Norris and Moss cite no authority that a witness's characterization of a nontestifying codefendant's out-of-court statements triggers Bruton concerns.
Moreover, even assuming we were to recast Drew's testimony to attribute a specific inculpatory statement emanating from Norris, we nevertheless conclude this specific statement would not transgress Bruton. The statement does not directly implicate anyone (other than Norris) and, at most, stated Norris and an unspecified number of unidentified other persons accompanied Norris in pursuing and shooting at the victims. Under these circumstances, we conclude the statement admitted at trial closely resembles the kind of redacted statement Gray described as one that would avoid Bruton error. Gray posited that, if the response to the question of "[w]ho was in the group" had been "[m]e and a few other guys," Bruton would not be implicated. (Gray, supra, 523 U.S. at p. 196.) Norris's statement—that "me and others" were in the group that "chas[ed] him [and] sho[t] the dude"—appears squarely within the kind of statement Gray contemplated.
After removing Drew's gloss from the statement, the alleged statement by Norris (with italics reflecting our conversion of Drew's testimony from a third-person to a first-person statement) would be that "I seen the dude, he had a green shirt on, so we started chasing him. We were shooting the dude."
Other federal courts have reached the same conclusion. Two of those federal cases—U.S. v. Chrismon (7th Cir. 1992) 965 F.2d 1465 and U.S. v. Hoac (9th Cir. 1993) 990 F.2d 1099—were cited by our Supreme Court as exemplars of when the use of neutral pronouns will "be effective in protecting the nondeclarant's rights under the confrontation clause." (See People v Fletcher, supra, 13 Cal.4th at p. 466.) The decision in Hoac is particularly instructive. In Hoac, the witness "used the neutral plural term 'individuals' and did not indicate to the jury that [the nontestifying codefendant] had given actual names or even had stated how many 'individuals' [were involved]. The jury was aware that several people were involved . . . , including at least one . . . who was not being tried with the three defendants. Because [the testimony as corrected used] the vague plural 'individuals,' and because the redaction did not invite the jury to 'fill in the blanks,' Hoac's extrajudicial statement did not facially incriminate Chan; rather, it could become incriminating only when linked with other evidence introduced at trial. [Citing Richardson, supra, 481 U.S. at p. 208.] We therefore conclude that there was no Bruton error." (Hoac, at pp. 1106-1107.) Similarly, Norris's statement (1) did not identify Moss, (2) did not even describe the number of other persons involved, and (3) the jury here was aware (and indeed was specifically instructed) that "[t]he evidence shows that another person may have been involved in the commission of the crimes charged against the defendant [and] you must not speculate about whether that other person has been or will be prosecuted."
Norris's statement did not identify Moss. Except insofar as his statement indicated that Norris had company at the time he chased and shot at the victims, Drew's description of Norris's statement did not incriminate Moss in any way, particularly considering Drew's testimony that (while Norris bragged to Drew about the RD shooting) Drew never heard Moss brag about or even talk about the RD shooting. Instead, the statement became incriminating "only when linked with evidence introduced later at trial" (Richardson, supra, 481 U.S. at p. 208), including Neal's testimony that Moss was the shooter, the forensic evidence found on gloves taken from the car after it was impounded, and the discussion between Moss and Norris (surreptitiously recorded the day after the RD shooting) in which Moss and Norris discussed getting rid of a gun. Although Norris's statement did not entirely eliminate any reference to the existence of accomplices, as did the redacted statement in Richardson, supra, 481 U.S. at page 211, neither did it obviously refer directly to Moss and could have referred to anyone, including others who might also have been charged with the shooting, thereby "avoid[ing] a 'one-to-one correspondence' between the confession and an easily identifiable defendant" (Lewis, supra, 43 Cal.4th at p. 467), and obviating a violation of the confrontation clause. (Ibid.) Under these circumstances, we are not persuaded by Moss's claim that admission of Norris's out-of-court admissions constituted Bruton error.
When the car used in the RD shooting was impounded, gloves were found inside the car. A DNA analysis showed Moss was a possible minor contributor to DNA on the left glove and a possible significant contributor to DNA found on the right glove. The right glove also tested positive for one particle unique to gunshot residue primer composition.
C. The Lesser Included Offense Claim
Moss contends the court had the obligation sua sponte to instruct on grand theft as a lesser included offense to the robbery for which he was charged in count 4.
Background
The victim of the robbery testified that she was walking home when she saw two men following her. The men asked to purchase the gun, but the victim refused. The men were around her and they "switched sides" as though positioning themselves to commit a crime. The victim became nervous and announced she was going inside her house. Moss said nothing, but suddenly snatched her purse (with sufficient force to break the strap) and ran off. As he ran, he grabbed the gun from the purse and discarded the purse, while the second man stayed with the victim. Although the victim stated she was afraid when he took the purse, she nevertheless followed him for a short period and was able to retrieve her purse.
On appeal, Moss does not contend the evidence was insufficient to show he was the lighter skinned man who ultimately grabbed the victim's purse.
The Sua Sponte Obligation
The California Supreme Court has explained that" ' "[i]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
Thus, a court must "instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (Breverman, supra, 19 Cal.4th at p. 162.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Breverman, supra, 19 Cal.4th at p. 162.) We review de novo a claim of instructional error. (People v. Posey (2004) 32 Cal.4th 193, 218.)
Even assuming we find instructional error, Moss erroneously argues the standard of prejudice is a more stringent standard than that set forth in People v. Watson (1956) 46 Cal.2d 818, 836. Moss's proposed standard for prejudice, derived from the principles articulated in People v. Sedeno (1974) 10 Cal.3d 703, argues that reversal is required unless we can determine the factual question posed by the omitted lesser included offense instruction was necessarily resolved adversely to the defendant under other instructions actually given by the trial court. Moss overlooks that the standard articulated in People v. Sedeno, supra, for prejudice from the omission of a lesser included offense instruction was expressly abrogated in Breverman, and was replaced with the Watson standard for determining whether instructional and other errors under California law are prejudicial. (Breverman, at pp. 148-149, 164-165, 178.) The Breverman court explained that, unlike the People v. Sedeno standard, "[a]ppellate review under Watson . . . focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, at p. 177.)
Although Moss does not specifically cite People v. Sedeno, supra, 10 Cal.3d 703, his brief cites People v. Kelly (1992) 1 Cal.4th 495, 530, which derived the proposed standard from People v. Ramkeesoon (1985) 39 Cal.3d 346, 351-352. However, the genesis of the standard applied by Ramkeesoon was Sedeno. (Ramkeesoon, at p. 352.)
Robbery and Grand Theft Principles
The crime of grand theft is a lesser included offense of robbery, which includes the added element of force or fear. (People v. DePriest (2007) 42 Cal.4th 1, 50.) Robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) Theft is a lesser offense necessarily included in robbery because the two crimes share the same elements except that robbery also requires the act be accomplished with force or fear. (People v. Burns (2009) 172 Cal.App.4th 1251, 1256.)
Within the definition of robbery, force has been defined to mean "more than 'just the quantum of force . . . necessary to accomplish the mere seizing of the property.' " (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, overruled on other grounds by People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2.) The concept of "fear" means the robbery was accomplished by means of inducing in the victim the fear of an unlawful injury to the person or property of the victim, or any relative of the victim, or to the person or property of anyone in the company of the victim. (§ 212.) Thus, the latter requires evidence " ' "the victim was in fact afraid, and that such fear allowed the crime to be accomplished." ' " (People v. Morehead (2011) 191 Cal.App.4th 765, 772.)
Analysis
Moss argues that, notwithstanding Wright's testimony that Moss grabbed her purse and snatched it from her hands with such force that the purse strap broke, the jury could have concluded Moss had used no more force than necessary to accomplish the mere seizing of the property, and therefore could have found Moss guilty of the lesser included offense of theft. Moss, relying on People v. Roberts (1976) 57 Cal.App.3d 782 (disapproved on other grounds by People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4), argues it is possible a properly instructed jury could have convicted him of the theft rather than robbery because the evidence in this case did not expressly describe any struggle between Moss and the victim over the purse. In People v. Roberts, supra, the victim testified that "somebody come right under my left arm, grabbed my handbag[,] jerked it right down and snapped it off the handle." (Id. at p. 785.) The court rejected the appellant's claim that there was no substantial evidence to support the robbery conviction, stating that "[c]ertainly, the evidence that the purse was grabbed with such force that the handle broke supports the jury's implied finding that such force existed." (Id. at p. 787.) However, because the court reversed the conviction for other reasons, it noted that "[w]hile this evidence sufficiently establishes the corpus delicti of robbery, it is susceptible of an interpretation (perhaps remote) which, if accepted, would render the defendant guilty of the lesser included offense of grand theft from the person. [Citation.] Consequently, if an instruction on such lesser included offense is requested on retrial, it must be given." (Id. at p. 787, fn. 1.) In contrast, where there is evidence of any struggle over the purse, the courts have concluded no lesser included offense instruction is necessary. (See, e.g., People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411; People v. Burns, supra, 172 Cal.App.4th at pp. 1257-1259 ["We have found no California case holding that a purse snatch cannot qualify as a robbery . . . [and] . . . whether it does depends on the force used. [Fn. omitted.]"].)
We conclude that, even assuming the record was "susceptible of an interpretation (perhaps remote) which, if accepted, would render the defendant guilty of the lesser included offense of grand theft from the person" (People v. Roberts, supra, 57 Cal.App.3d at p. 787, fn. 1), that might rise to the level of evidence of sufficient substantiality to trigger the sua sponte instructional obligation under Breverman, supra, 19 Cal.4th at p. 162, the test for prejudice is "not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (Id. at p. 177.) Thus, the existence of a "remote" possibility (Roberts, at p. 787, fn. 1) the jury would have found the evidence of force insufficient is not a basis for reversal, and reversal is only appropriate when there is a "reasonable probability the error of which the defendant complains affected the result." (Breverman, at p. 177.) Here, we are unconvinced there was a reasonable probability the jury would have convicted Moss of theft rather than robbery. The victim testified the two men surrounded her and, after she confirmed to them that she was unwilling to part with the gun voluntarily, Moss grabbed the purse from her so forcefully that the strap broke and caused the victim to be afraid. Indeed, the defense cross-examination made no effort to undermine her description of the events, or to mitigate the force (or fear) aspect of her testimony, but instead sought to show her ability to identify the robber was so weak that the jury could have found Moss was not the perpetrator. On this record we are convinced there is no "reasonable probability the error of which the defendant complains affected the result." (Breverman, at p. 177.)
V
ANALYSIS OF THE SEARCH AND SEIZURE CLAIM
In his supplemental brief, Moss asserts the court erred in denying his motions to suppress certain evidence derived from a February 27, 2006, traffic stop. At the time of the traffic stop, Moss was a passenger in a car driven by Norris. He asserts the trial court erred by denying his motions to suppress the police interview with Moss and Norris regarding the Radio Drive shootings, and the taped conversation between Moss and Norris at the police station. Moss further argues that, because some information obtained by police was later used in probable cause affidavits to obtain wiretap authorization, the court also erred in denying his motion to suppress evidence obtained from those wiretaps. Finally, Moss argues for the first time on appeal that the court also should have suppressed certain forensic evidence.
Moss claims swabs and hair samples taken at the police station produced DNA evidence used at trial, and a pair of gloves taken from Norris's car produced gunshot residue test evidence and were linked to Moss through the DNA evidence, and that this evidence should have been suppressed.
A. Procedural Background
The First Motion to Suppress
Moss filed a November 17, 2008, motion to suppress (1) the events of February 27, 2006, (2) all statements made by Moss on February 27, 2006, (3) the recorded conversation between Moss and Norris made on February 27, 2006, and (4) the results of or any reference to the wiretaps derived from the arrest of Moss and Norris. He asserted the detention and nonconsensual transportation of Moss and Norris to the police station was an arrest, made without probable cause, and therefore the fruits of the events of February 27, 2006, should have been suppressed. The prosecution opposed the motion to suppress in its entirety. The prosecution argued, as to the wiretap evidence, that Moss did not have standing to challenge it and, even if Moss had standing, the wiretap orders were proper. The prosecution opposed the motion to suppress the other items of evidence, arguing the initial stop was supported by probable cause, and the detention was not unduly prolonged merely because Moss was transported to the police station before being released; and therefore there was no unreasonable search and seizure resulting from the traffic stop.
The Evidentiary Hearing on the Motion to Suppress
On December 1, 2008, the court held a contested evidentiary hearing on Moss's claim that the detention and nonconsensual transportation of Moss and Norris to the police station constituted an arrest, and that it had been initiated and pursued without probable cause. At the hearing, Officer French and Detective Stetson of the San Diego Police testified to the events leading up to the traffic stop and the subsequent detention and transportation of Moss and Norris.
Stetson testified he responded to the scene of the RD shooting, learned the murder victim was connected to Lincoln Park, and believed (based on numerous factors) it was a gang-related shooting. Two witnesses gave Stetson a description of the car that carried the shooters as a dark-colored Ford Taurus and gave the first four characters in the license plate for the Taurus. Police (based on that description) determined the Taurus was registered to Johnson's mother. Stetson learned Norris had been contacted in that car three days before the RD shooting. Stetson also knew Norris to be associated with GPM, the archrivals of the gang with whom the victim was associated.
Around noon on the day after the RD shooting, Stetson went to Norris's residence and saw a Taurus parked in front. Stetson had alerted other officers to his surveillance, and that he would like assistance from patrol cars, and the patrol cars should be on standby away from the house. Around 2:00 p.m., Stetson saw Norris, Moss and Johnson emerge from the house, get into the Taurus, and drive away. Norris was driving and Moss was in the back seat. Stetson alerted the other officers that the Taurus was on the move, and began following it. However, Stetson lost sight of the Taurus.
French and his partner were on routine patrol when they received a call to stop the Taurus if they could establish probable cause for a stop. They were told the occupants were suspects in a homicide. They spotted the Taurus and followed it until it came to a red light. When the light turned green, the Taurus rolled forward but then abruptly braked and stopped, forcing French's partner to brake to avoid rear-ending it. The officers initiated a traffic stop because the abrupt stop in a traffic lane had impeded traffic.
French approached the Taurus and saw three people in it. He recognized Norris as a person associated with Skyline/GPM. Norris was asked for his license but he replied he did not have it. The officers, believing there might be a gun in the car, handcuffed Norris and put him in the back of their police car for safety reasons.
French had trouble seeing into the back seat where Moss was sitting because the windows were tinted. French directed Moss to get out because French was concerned there might be a weapon in the car. French handcuffed Moss for safety reasons and had Moss sit on the curb pending verification of his identity. French asked for Moss's identification (which Moss denied having), and for Moss's name and date of birth. Moss identified himself as "Jason Wilson," but when French ran a contacts check and DMV check, the results came back negative, which seemed unusual.
Stetson learned of the traffic stop and immediately went to the location of the stop. Stetson initially chose to observe the events from a distance, but when the stop started to become "unsafe and unorganized," Stetson contacted the officers and took charge of the scene. In response to Stetson's questions to Moss about his identity, Moss gave Stetson two different spellings of the name "Jason Wilson," as well as two different dates of birth, and also gave Stetson an account of his presence in the car that Stetson knew to be false. Stetson believed he had probable cause to arrest Norris in connection with the murder, and to continue to detain Moss because he had given false information about his identity and Stetson needed to determine Moss's true identity. However, because the scene was becoming unsafe, Stetson decided to move Norris and Moss to the police station to continue the detention. The total time from the initial stop until Norris and Moss were transported to the station was about 20 minutes.
The traffic stop occurred in the "heart" of Skyline territory, and was across the street from a park frequented by Skyline gang members. Stetson saw vehicles driving repeatedly past the stop, and numerous persons (including Norris's father and a sibling of Norris) began congregating at the scene, and some of them were very agitated that Norris was in handcuffs. The crowd outnumbered the officers, who grew increasingly concerned the situation was becoming unsafe.
At the police station, Moss and Norris were taken to the homicide unit to be interviewed. Between 15 to 20 minutes after arriving at the police station, police were able to determine Moss's true identity and that he was on juvenile gang probation. Stetson confronted Moss, stating that if Moss "came clean" he would not be charged with giving false information to a police officer. Moss then admitted his identity and police determined he was on juvenile "gang probation." Although police ultimately released Moss, they first obtained a DNA swab and hair sample from him. Police impounded the Taurus and examined it for evidence.
The Ruling
The prosecution argued police had probable cause to stop the car for a traffic infraction and because there was a reasonable suspicion the car had been involved in the previous night's shooting, and the detention of Norris and Moss at the scene and the subsequent transport to the police station was justified based on numerous factors. Moss argued the traffic stop was a pretext, and there was no basis to transport him to the police station. The court rejected the motion, stating "this isn't even a close call" because there was probable cause to stop the car even without the traffic violation, and the fact that Norris had no license and Moss lied about his identity fully justified taking them to the police station to complete the investigation.
The Second Motion to Suppress
In early 2009, the United States Supreme Court announced its decision in Arizona v. Gant (2009) 556 U.S. 332 (Gant), and Moss moved for reconsideration of the ruling on his suppression motion in consideration of that decision. The court denied the motion for reconsideration because it concluded Gant was inapposite to the issues presented by Moss's motion to suppress.
B. Legal Standards
Our review of a ruling on a motion to suppress involves both deferential aspects and de novo aspects. "In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." (People v. Ramos (2004) 34 Cal.4th 494, 505.)
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures of persons, including unreasonable investigative stops. (People v. Souza (1994) 9 Cal.4th 224, 229.) "A seizure occurs whenever a police officer 'by means of physical force or show of authority' restrains the liberty of a person to walk away." (Ibid.) The temporary detention of individuals during a vehicle stop by officers, "even if only for a brief period and for a limited purpose," is a seizure of persons within the meaning of the Fourth Amendment (Whren v. U.S. (1996) 517 U.S. 806, 809-810), and a car's passenger is also seized within the meaning of the Fourth Amendment and therefore has standing to challenge the constitutionality of the stop. (Brendlin v. California (2007) 551 U.S. 249, 256-259, 263.)
"[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' [(Quoting Terry v. Ohio (1968) 392 U.S. 1, 19.)] In making our determination, we examine 'the totality of the circumstances' in each case. [Citations.] [¶] Reasonable suspicion is a lesser standard than probable cause . . . . [Citation.] But to be reasonable, the officer's suspicion must be supported by some specific, articulable facts that are 'reasonably "consistent with criminal activity." ' [(Quoting In re Tony C. (1978) 21 Cal.3d 888, 894.)]" (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.)
C. Analysis
We first determine whether the initial stop was legal. We then determine whether the continued detention of Moss (connected with his transport to and detention at the police station) was legal, and the impact of each aspect of the detention on the particular items of evidence Moss claims should have been suppressed.
The Initial Stop
We conclude the initial vehicle stop did not violate constitutional safeguards against an unreasonable search and seizure. "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza, supra, 9 Cal.4th at p. 231.) Here the underlying facts justifying the stop, even apart from the traffic infraction, were specific and reliable: police learned the murder victim of the RD shooting was connected to the Lincoln Park gang, and believed (based on numerous objective articulable factors) it was a gang-related shooting. Two witnesses described the car that carried the shooters and, based on that description, police determined only one car (the Taurus registered to Maureisha Johnson's mother) matched that profile. Police also learned Norris (whom Stetson knew was associated with a gang that was the archrival of the victim's gang) had been in that car just three days before the RD shooting. When Stetson went to Norris's residence approximately 15 hours after the RD shooting, he saw the Taurus parked there. After watching for approximately two hours, Stetson saw Norris emerge from the house with other persons (which dovetailed with reports suggesting the RD shooting had involved multiple persons riding in the Taurus), get into the Taurus and drive away. The court found, and we agree, that the initial stop was not an unreasonable search and seizure because police had a reasonable suspicion, based on specific articulable facts considered in the totality of the circumstances, that provided an objective manifestation that the driver may have been involved in criminal activity.
The Transport and Continued Detention of Moss
A detention that is reasonable at its outset can become improper if it is extended beyond what is reasonably necessary under the circumstances. (People v. McGraughran (1979) 25 Cal.3d 577, 586.) However, because police may pose questions to and obtain identification from a passenger detained during a lawful traffic stop (People v. Vibanco (2007) 151 Cal.App.4th 1, 14), and may order the passenger to alight from the car as a precautionary measure (People v. Hoyos (2007) 41 Cal.4th 872, 892), police did not offend Fourth Amendment protections when they asked Moss for identification and directed him to get out of the car as a safety precaution.
It was Moss's further conduct in response to police questions that provided them reasonable cause to continue detaining him. In response to proper questions concerning his identity, he gave them identifying information that police suspected was—and in fact turned out to be—false. This alone justified the additional detention because police had probable cause to suspect Moss was subject to arrest for violating section 148.9, subdivision (a). (See, e.g., People v. Hunt (1990) 225 Cal.App.3d 498, 506, abrogated on other grounds by People v. Brendlin (2006) 38 Cal.4th 1107, 1115.) Moreover, although Moss complains that transporting him to the police station unduly prolonged the detention, the transportation of a detainee to a police station to permit additional investigation is permissible when reasonable (People v. Harris (1975) 15 Cal.3d 384, 389-392) and is permissible when, as here, the presence of a growing and hostile crowd could render a field investigation unsafe. (See People v Courtney (1970) 11 Cal.App.3d 1185, 1191-1192 ["Certainly there was no Fourth Amendment compulsion on the police to choose between an on-the-spot continuation of their investigation at the probable cost of their own safety, or abandoning the investigation, thus allowing the suspect to continue his mission, whatever it might be, without further inquiry."].)
Moss argues on appeal that, even if the initial stop and subsequent transportation were permissible, the detention at the police station was unduly prolonged and produced fruits (the DNA material and the tape-recorded conversation) that should have been suppressed. However, he did not raise that argument below, and it was therefore waived. (People v. Auer (1991) 1 Cal.App.4th 1664, 1670, disapproved on other grounds by People v. Williams (1999) 20 Cal.4th 119, 125.) Moreover, even if it was preserved, this argument rests on his request that we should "infer the entire process would have taken several hours or more" before he was released, when instead police should have cited him for violating section 148.9, subdivision (a), and then immediately released him. (See § 853.6, subd. (a).) However, the evidence viewed most favorably to the ruling was: (1) only 15 to 20 minutes elapsed between the time they arrived at the police station and the time police were able to determine Moss's true identity and that he was on juvenile gang probation; (2) Stetson then confronted Moss and told him that if he "came clean," he would not be charged with giving false information to a police officer; (3) Moss then admitted his identity and police learned he was on "gang probation"; and (4) after obtaining a DNA swab and hair sample from Moss, police released him. We conclude, as did the trial court, that Moss's falsehoods justified the transportation and additional period of detention to allow police to determine his identity and to evaluate whether to arrest or cite him for violating section 148.9, subdivision (a).
We believe waiver is particularly appropriate under the facts of this case. We have taken judicial notice that the terms and conditions of Moss's juvenile gang probation order provides, among other things, that Moss (1) obey all laws, (2) not be in the company of Skyline gang members, and (3) not leave home without his parent. At the evidentiary hearing on the motion to suppress, when Stetson was asked whether he told Moss (after learning Moss's identity and his gang probation status) that Stetson was "going to revoke [Moss's] probation," Stetson replied he told Moss he "was going to talk to [Moss's] probation officer. I don't know if I specifically told him I was going to revoke his probation. I don't have that authority." If Moss had raised the "unduly prolonged detention" claim at trial, the prosecution could have produced evidence explaining why Moss was not immediately released, e.g., because Stetson needed to contact Moss's probation officer to determine whether or not his probation was to be revoked. Because this theory was not raised below, which necessarily precluded any need for the prosecutor to explain the circumstances of the alleged prolonged detention, we believe waiver is appropriate.
We now consider the specific items of evidence Moss argues the trial court should have suppressed as evidence obtained in violation of his Fourth Amendment Rights.
The Specific Evidentiary Items
The DNA Swab and Hair Sample
Neither Moss's original motion to suppress, nor his supplemental motion to suppress, identified the DNA swab or hair sample as among the items he claimed should have been suppressed. We agree with the People that, because the prosecution was not put on notice that it would be required to introduce evidence justifying the admission of DNA tests linking Moss to the .380 handgun used in the San Onofre Terrace shooting, that claim must be deemed waived. (People v. Auer, supra, 1 Cal.App.4th at p. 1670.) The forfeiture of that claim is particularly compelling under the facts of this case, for two separate reasons. First, the evidence suggests the samples taken at the police station were obtained after police learned Moss was on gang probation. Because it was not placed on notice that it would be required to justify the search that produced those samples, the prosecution was deprived of the opportunity to show at trial that police were aware that a condition of Moss's probation was his consent to a search of his person or property "at any time, with or without probable cause," which would obviate any claim that the samples were obtained in violation of the Fourth Amendment. (See generally People v. Watkins, supra, 170 Cal.App.4th at p. 1409 [search pursuant to a parole or probation search condition normally valid if officer knew of the condition at time of search].) Second, because the issue was not raised below, the prosecution was deprived of the opportunity to introduce evidence showing Moss's DNA sample would have inevitably been discovered, either as a search pursuant to his probation condition or from a search after his arrest. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62 [constitutional violation does not bar admission of physical evidence that would have been inevitably discovered by lawful means].) We conclude Moss cannot attack the admission of the DNA evidence for the first time on appeal.
We requested supplemental briefing from the parties on whether we could take judicial notice that Moss was on probation at the time of the traffic stop and that the terms and conditions of Moss's probation included a Fourth Amendment waiver, and we have determined that judicial notice of the order and its terms is appropriate. However, our request for supplemental briefing also asked whether People v. Watkins (2009) 170 Cal.App.4th 1403 would impact our analysis or consideration of the evidence that Moss tried to conceal his identity during the initial stop, thereby precluding police from learning of his probationary status. The Watkins court concluded that, because the defendant concealed his identity from police and (by doing so) also concealed his probation search condition, he was estopped from challenging the validity of the search incident to the stop. (Watkins, at pp. 1409-1410.) Although we approve the conclusion reached in Watkins, estoppel was not raised by the prosecution below, and we have some question whether we may consider it for the first time on appeal. However, considering our conclusion, it is unnecessary to determine whether the People may raise this argument to justify the search when it was not raised below.
The Gloves
Moss asserts the gloves found when police searched the Taurus (apparently some time after it had been impounded) should have been suppressed, along with the fruits of the search. However, in Rakas v. Illinois (1978) 439 U.S. 128, the United States Supreme Court held that a passenger in a vehicle does not have a reasonable expectation of privacy in the vehicle and therefore does not have standing to challenge the seizure of items from the car after it has been impounded. (Id. at pp. 148, 150.) Although Moss correctly notes that (under Brendlin v. California, supra, 551 U.S. 249) a passenger has standing to challenge the initial stop and detention of the occupants of the vehicle, Brendlin did not suggest that once a court determines the vehicle (along with its driver and occupants) was lawfully stopped and detained (as we have concluded here), the passenger had any privacy expectation in the vehicle after it has been impounded that would confer standing on the passenger to challenge a later search of the vehicle.
Moss argues the test of the gloves showing he was a possible significant contributor to the DNA on the gloves, and a positive result for one particle unique to gunshot residue on the glove, should have been suppressed.
Moss argues that because the prosecution did not raise lack of standing below, it should not be considered on appeal. However, lack of standing may be raised for the first time on appeal. (People v. Thompson (1990) 221 Cal.App.3d 923, 936-937.)
Moreover, Moss did not identify the gloves (or any other material obtained from the impound search) as an item to be suppressed in connection with his original motion for suppression, but instead first raised the issue of materials from the car when he sought reconsideration of the ruling based on the reasoning of the then-recent decision in Gant, supra, 556 U.S. 322. Even assuming the issue were preserved, we are unconvinced by Moss's claim, raised below and resurrected on appeal, that Gant required suppression of the gloves. Although Gant limited the circumstances under which a warrantless search of the vehicle may be upheld when the search is conducted incident to an arrest of the occupants, it simultaneously approved an exception to the search warrant requirement: a vehicle search incident to a recent occupant's arrest is permitted "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' [(Quoting Thornton v. U.S. (2004) 541 U.S. 615, 632 (conc. opn. of Scalia, J.).)]" (Gant, supra, 556 U.S. 332 .) Discussing this exception further, the court stated that "[i]n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. [Citations.] But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." (Ibid.) Here, Stetson testified he believed he had probable cause to (and in fact did) arrest Norris for the suspected murder the previous night, and the trial court agreed the totality of the circumstances justified that action. Because Gant recognized that "circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle' " (ibid.), police were entitled to search the Taurus for evidence relevant to the crime of arrest (i.e., the murder) because it was reasonable to believe evidence relevant to that crime, which had occurred just 15 hours earlier and was apparently committed using that car, might be found in it.
The prosecution was not put on notice that it would be required to introduce evidence justifying the admission of the gloves apart from whether Gant's reasoning required suppression of the search, and therefore specifically limited its argument to whether Gant applied. Accordingly, we believe forfeiture of the claim as to the gloves is proper because the gloves were found after police learned Moss was on gang probation. Because the prosecution was not placed on notice that it would be required to justify the search that produced the gloves, the prosecution was deprived of the opportunity to show Moss had consented to a search of his person or property "at any time, with or without probable cause," which would obviate any claim the gloves were obtained in violation of the Fourth Amendment. (See generally People v. Watkins, supra, 170 Cal.App.4th at p. 1409 [search pursuant to a parole or probation search condition normally valid if officer knew of the condition at time of search].)
The Wiretap Tapes
Moss also asserts the wiretap tapes should have been suppressed because the wiretap order was based on information that flowed from the unlawful stop and detention of Norris and Moss. Even assuming Moss has standing to challenge the wiretap, because we have already concluded the initial stop and the continued detention were valid, his claim falters on its foundation.
There were several calls captured by the wiretap, but Moss appears to challenge only (1) the Dixon/Norris call that comprised one-half of the two-legged call made on May 1, 2006, between Moss and Dixon (the first leg) and Dixon and Norris (the wiretapped second leg), and (2) a later call between Dixon and Norris when Dixon spoke to Norris about Moss's desire that Norris move rapidly against Brashears. Moss apparently lacks standing to challenge either of the captured phone calls, because the wiretap captured conversations between Dixon and Norris. (See U.S. v. Faulkner (10th Cir. 2006) 439 F.3d 1221, 1223 [party must be "aggrieved" to have standing to suppress conversations by being a participant in the conversation, the target of the wiretap, or the owner of the premises].) While Moss was on the phone (and hence arguably a participant in) the former conversation, he clearly lacks standing as to the latter conversation because he was not a participant in that conversation nor the target of the wiretap.
The Recording of the Moss/Norris Conversation
Moss asserts the recorded conversation between Norris and him was the product of an unduly prolonged detention, because he should have been cited and released immediately, but was instead further detained and placed in a room with Norris where the recording occurred. However, there was no evidence Moss was detained for many hours after Stetson learned his true identity, or that the recorded conversation took place many hours after Stetson learned his true identity. Moreover, although Moss asserts police were required by section 853.6 to immediately cite and then release him for violating section 148.9, subdivision (a), "[t]here is no requirement that a person arrested for a non- Vehicle Code misdemeanor violation must be released without bail nor without booking. It is a matter within the discretion of the arresting officer or the booking officer." (People v. Superior Court (1973) 30 Cal.App.3d 257, 264.) Because Moss did not demonstrate either the length of the detention was unduly long or that police did not have discretion to continue the detention until they decided whether to release him under the cite-and-release provisions of section 853.6, the recorded conversation was not the product of an unlawful detention under the Fourth Amendment.
VI
CORRECTIONS TO THE ABSTRACT OF JUDGMENT
Norris and Moss assert, and the People concede, that the abstract of judgment must be amended to accurately reflect the nature of various findings. The abstracts of judgment for both Norris and Moss lists the special circumstance appended to count 5 as a finding under section 190.2, subdivision (a)(21), but the People concede the special circumstance appended to count 5 as alleged and found true by the jury was a finding under section 190.2, subdivision (a)(3), of a conviction for multiple murders. The abstract of judgment for Moss also identifies count 11, the conspiracy count, as a "violent felony," which the People concede is incorrect. (See In re Mitchell (2000) 81 Cal.App.4th 653, 656-657.) Finally, the abstract of judgment for Moss identifies count 10, carrying a firearm in violation of section 12031, subdivision (a)(1), as a "violent felony," but the People concede this was incorrect because that offense is not among the violent felonies listed in section 667.5, subdivision (c).
Norris contends the abstract of judgment as to Norris also identifies count 11, the conspiracy count, as a "violent felony," which would require correction. However, the page of this court's record on appeal cited by Norris, page 1023 of volume 7 of the Clerk's Transcript, appears to refer to Moss rather than Norris, although our review of the record suggests the designation at the top of that page of the abstract was intended to refer to Norris. The court on remand shall review the abstract of judgment as to Norris to ensure it accurately designates the defendant as to whom it applies, as well as to amend the abstract as to Norris to correct the designation of the conspiracy count to eliminate its "violent felony" designation.
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DISPOSITION
The trial court is directed to amend the abstract of judgment for Norris to reflect that the special circumstance appended to count 5 was a finding under section 190.2, subdivision (a)(3), and that count 11 was a nonviolent felony. The trial court is directed to amend the abstract of judgment for Moss to reflect that the special circumstance appended to count 5 was a finding under section 190.2, subdivision (a)(3), and that counts 10 and 11 were nonviolent felonies. As so amended, the judgments are affirmed.
McDONALD, J. WE CONCUR:
McCONNELL, P. J.
HALLER, J.