Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Daniel Wayne Rose appeals the judgment entered following his conviction by jury of first degree murder with the special circumstance finding that Rose committed the offense while he was an active participant of a criminal street gang to further the activities of the gang. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(22).) The jury also found Rose personally discharged a firearm causing death in the commission of the offense within the meaning of section 12022.53, subdivision (d). The trial court sentenced Rose to life without the possibility of parole, plus 25 years to life in state prison.
Subsequent unspecified statutory references are to the Penal Code.
Rose raises numerous contentions including the erroneous admission of hearsay evidence and instructional error. Rose also claims the criminal street gang special circumstance fails to provide a meaningful basis for distinguishing persons deserving special circumstance punishment from those who do not. Rose further contends the weapon enhancement under section 12022.53, subdivision (d) violates the multiple conviction rule and double jeopardy principles. We find no merit in any of these contentions and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The gang related murder of Alcorn; Rose and other gang members attempt to retaliate; gang confrontation at Alcorn’s funeral service.
On February 10, 2002, Marcario Alcorn, a member of a blue Crip gang was murdered by a member of a red Piru gang. The morning after Alcorn’s murder, gang members met to plan retaliation. Shawn Cooper, a former gang associate of Rose, testified they “loaded guns” and “got ready to go.”
Cooper currently makes his living as a confidential informant for the federal government. Cooper met Rose and Alcorn in 1996. They were members of closely related Crip gangs. Cooper became an informant after he was arrested on a case involving four counts of armed robbery committed with gang members. While in custody on those charges, Cooper decided he no longer wished to be involved in the gang lifestyle. He wrote a letter to police detectives in which he set forth the facts of approximately 20 gang crimes. In exchange for his cooperation in a case known as the Richardson murder, Cooper received witness relocation funds and was sentenced to prison for three years on the robbery charges. Cooper testified he did not receive specific consideration for his cooperation in the case against Rose.
That night, Cooper, Rose, Alcorn’s older brother and a fourth person “canvassed” the territory of the rival gang [in a car] trying to find “anybody wearing red....” Cooper pulled alongside a Cutlass occupied by two males wearing red hats. Rose hung out the window of the car and attempted to shoot the males but the gun misfired.
A police detective staked out Alcorn’s funeral service, expecting retaliation. After waiting about an hour, three Piru gang members drove past the funeral home in a red four-door Honda and flashed gang signs at mourners. When uniformed officers chased the Honda, the rear seat occupant threw a gun out the window.
2. The murder of Thomas.
a. The shooting.
On the night of Friday, February 28, 2003, George Thomas went to visit a friend in his maroon Suburban. He parked near a barbershop he frequented. Kenneth Bowman, the operator of the barbershop, was in the shop late that night with his nephew and nieces. Bowman noticed truck lights and one of his nieces said someone was there for a haircut. Bowman went outside and saw a male who appeared to be approximately 25 years of age standing on the sidewalk next to the passenger side of a truck. Bowman heard someone say, “Fuck Piru.” Bowman went inside and within seconds heard four or more gun shots.
Thomas was shot six times and died of multiple gunshot wounds. Each of the four bullets recovered from the scene had been fired from the same weapon.
b. Accomplice testimony regarding the shooting.
On the night Thomas was shot, Eddie Elaire drove around the San Fernando Valley with Rose and an individual known as Stone. Elaire, Rose and Stone were members of the same gang. At Rose’s direction, Elaire stopped at a taco stand and Rose got out of the car. Elaire drove up the street, turned around and heard gunshots as he drove toward the taco stand. Rose ran to the car, entered the front passenger seat and said “that guy was woofing.” The next day, Elaire saw a gun on a table at Rose’s house.
Los Angeles Police Officer Charles Lenane conducted a tape-recorded interview of Elaire concerning the shooting of Thomas. Lenane told Elaire he was not under arrest and asked Elaire to talk about the case. At first, Elaire was worried he would incriminate himself but then began to tell Lenane what he knew about the case. Lenane did not offer Elaire any compensation for his statement and Elaire was not facing criminal charges on any other case when Lenane interviewed him.
c. Rose’s statement to Cooper at the December 2003 barbeque.
In December of 2003, Cooper attended a barbeque at the home of Alcorn’s brother. At the barbeque, Rose told Cooper “he had got[ten] one not too long ago.” Cooper interpreted this to mean Rose had killed a rival gang member. Rose said he, “Big... Stony Boy” and Elaire were riding around in Pacoima, “looking to target Pirus....” They found a guy in an S.U.V. Rose “hopped out, approached the truck” and asked, “Hey, you from Pacoima?” Rose said the individual responded, “Yeah, I am from Pacoima. What’s up?” Rose said, “Fuck Piru,” and “emptied the cylinder” of a handgun into him. Rose said he was so close when he shot the victim that the victim’s shirt caught fire. Cooper indicated numerous other gang members attended the barbeque including Lee Davis.
4. The defense case.
Lee Davis, a sentenced state prisoner, knows Rose and Cooper. Davis did not go to a party in December of 2003 attended by Cooper and Rose and Davis has never heard Rose tell Cooper that Rose had ever shot anyone. Davis knows Alcorn’s brother but has never been to his home for a barbeque.
The defense recalled Cooper who testified he makes his living as a paid confidential informant and he has worked in this capacity upwards of a hundred times. The most he has earned in any single case is $10,000. Cooper testified Davis drove him to the December 2003 barbeque.
5. Verdicts.
The jury convicted Rose of the murder of Thomas and found true a criminal street gang special circumstance under section 190.2, subdivision (a)(22), and a firearm enhancement under section 12022.53, subdivision (d) [personal discharge of a firearm causing death].
CONTENTIONS
Rose contends the trial court erroneously admitted hearsay evidence that corroborated Cooper’s account of Rose’s barbeque statement and improperly modified CALCRIM No. 226. Rose also claims the criminal street gang special circumstance fails to provide a meaningful basis for distinguishing persons deserving special circumstance punishment from those who do not and the firearm enhancement under section 12022.53, subdivision (d), violates the multiple conviction rule and double jeopardy principles.
DISCUSSION
1. Cooper’s reference to corroboration of Rose’s barbeque statement does not require reversal.
a. Background.
During Cooper’s testimony regarding Rose’s statement at the December 2003 barbeque, Cooper indicated Rose said that he emptied the cylinder of a weapon. The prosecutor asked, “When you say emptied the cylinder, did the defendant say what kind of gun he used?” Cooper responded the gun used in the shooting was “called the money maker.” The prosecutor asked, “what is meant by the money maker. Did the defendant call it that or [did] you... ?” Cooper responded the particular weapon used in the shooting was referred to as the “money maker” because it “had been around for quite a while and was used in [numerous profitable] robberies.” The prosecutor asked whether guns were passed among gang members and Cooper indicated affirmatively. The prosecutor then asked, “[D]id the defendant use the term money maker as the name of the gun?” Cooper responded, “No. Stone had. Because Stone had corroborated the complete story.”
Defense counsel interposed a hearsay objection as follows: “I beg your pardon, your honor. When he starts talking about somebody corroborating, that’s not admissible hearsay.” The trial court responded: “It’s not coming in for the truth of the matter... what it was actually called. It is coming in for what he heard another person refer to it as.” The prosecutor indicated the People would “just try to move on....” Thereafter, in argument to the jury, the prosecutor did not mention Stone’s asserted corroboration of Rose’s statement.
b. Rose’s argument.
Rose contends the trial court erroneously permitted Cooper to testify that Stone corroborated Rose’s confession in connection with the questioning about the “money maker.” Rose claims the trial court’s ruling prevented a reliable assessment of Cooper’s testimony. It also permitted the jury to speculate that persons other than those who testified at trial could confirm Rose’s alleged confession. Without a curative admonition to disregard such testimony, the jury could consider Cooper’s reference to Stone’s corroboration of Rose’s purported confession as a basis for believing the remainder of Cooper’s testimony.
Rose concludes the trial court had a sua sponte obligation to exclude this evidence and defense counsel rendered ineffective assistance in failing to ask the trial court to strike the testimony and admonish the jury to disregard it.
c. Resolution.
It appears Rose is correct in asserting Cooper’s statement that Stone corroborated Rose’s story constituted inadmissible hearsay. When defense counsel objected specifically to the statement regarding corroboration as hearsay, the trial court ruled the evidence was not being offered for the truth of the matter asserted, i.e., the name of the gun. Thus, the trial court’s ruling did not address whether Cooper’s testimony that Stone “corroborated the complete story” amounted to hearsay.
At that point, it was incumbent upon Rose to ask the trial court to address the issue directly. Having failed to pursue the objection specifically in the trial court, Rose cannot raise the contention for the first time on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 351; People v. Walker (1991) 54 Cal.3d 1013, 1023.) In any event, even assuming Rose’s initial objection preserved the issue for review, Rose cannot show prejudice.
The evidence against Rose was nearly overwhelming. Two of his former gang associates testified against him at trial. Both had committed crimes with Rose. Cooper drove when Rose attempted to shoot two males wearing red hats the night after Alcorn’s murder; Elaire drove the night Rose shot Thomas. The statement overheard by the barber shop owner, “Fuck Piru,” matched the statement Rose related to Cooper at the barbeque. Thus, there was independent corroboration of Rose’s statement to Cooper at the barbeque. Finally, the prosecutor made no reference in closing argument to Stone’s alleged corroboration.
Based on these circumstances, Cooper’s brief reference to Stone’s corroboration of Rose’s account of the shooting of Thomas cannot be seen as unduly prejudicial. Consequently, we find the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].) It follows that Rose cannot prove the prejudice prong of his ineffective assistance of counsel claim. (Strickland v. Washington (1984) 466 U.S. 668, 686-691 [80 L.Ed.2d 674].)
2. No prejudcial instructional error appears.
During the jury instruction conference, the trial court deleted several of the credibility factors listed in CALCRIM No. 226, including: “was the witness promised immunity and leniency in exchange for testimony[.]” The trial court noted there had been no proof any witness had been promised immunity or leniency in exchange for testimony in this case and the prosecutor agreed. Defense counsel did not comment. The trial court then stated, “Right. That’s all that matters. You have an argument.”
Rose contends the omission of this factor from the instruction compromised Rose’s right to a fair trial. Although Cooper testified he received no consideration for his testimony in this case, the jury was entitled to reject Cooper’s claim because Cooper negotiated a deal in his robbery case after he disclosed information regarding Rose’s case. Also, Elaire expressed concern at the beginning of Detective Lenane’s interview that he was incriminating himself. Lenane told Elaire: “You are a witness on this case. Okay?” From this, the jury could infer Elaire believed he was receiving lenient treatment in the form of an agreement not to prosecute in exchange for his testimony. Under these circumstances, Rose argues it was critical the jury be permitted to consider whether any witness was promised immunity or leniency in exchange for testimony. Elimination of this factor from the instruction prejudiced the jury’s consideration of critical evidence. Rose concludes the trial court had a duty to instruct on this factor even in the absence of a request and that defense counsel rendered ineffective assistance in failing to object to the modification of the instruction.
No reversible error or ineffective assistance of counsel appears. Cooper testified he did not receive any specific compensation in this case and there was no evidence Cooper was promised immunity or leniency for testifying in this case. Elaire had no pending criminal charges at the time he was interviewed by the police and he was not offered anything for his statement. Although Elaire was concerned about incriminating himself, there was no evidence Elaire was provided immunity or leniency for his testimony. Thus, the evidence did not demonstrate that either Cooper or Elaire benefited by testifying at this trial. Based on this state of the record, the trial court did not err in omitting a factor that was not relevant, namely, whether a witness was promised immunity or leniency in exchange for testimony.
In any event, the jury was instructed to determine whether Elaire was an accomplice and, if so, to view his testimony with caution. (CALCRIM No. 334.) The jury also was instructed to consider whether the witness had bias or interest in how the case was decided in determining credibility and believability. (CALCRIM Nos. 105, 226.) Thus, the jury was not completely uninstructed in this area. It properly could consider the bias of the witnesses as well as any interest they might have in the outcome of the case. During argument, defense counsel relied on these instructions and asked the jury to question whether Cooper did not have a monetary interest in everything he did, “including his testimony here today?” Counsel argued Cooper was paid for results and he had a personal interest in his results. Thus, the instructions given by the trial court permitted the jury to question Elaire’s reliability as an accomplice and allowed defense counsel to argue Cooper had a monetary interest in testifying in this case.
In sum, even assuming instruction error, it is not reasonably probable Rose would have been acquitted absent the error. Consequently, the error was not prejudicial under either Chapman v. California, supra, 386 U.S. at p. 24, or People v. Watson (1956) 46 Cal.2d 818, 836. Given that result, it follows that Rose is unable to demonstrate ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at pp. 686-691.
3. The criminal street gang special circumstance provides a meaningful basis for distinguishing persons who deserve special circumstance punishment from those who do not.
Rose contends the criminal street gang special circumstance of section 190.2, subdivision (a)(22) fails to provide a meaningful basis for distinguishing those persons deserving special circumstance punishment from those who do not. Rose argues the essentials of the criminal street gang special circumstance required nothing more than proof of a premeditated and deliberate murder committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). He concludes the term imposed, life without the possibility of parole, violates the prohibition against cruel and unusual punishment and must be reduced to 25 years to life in state prison. (Fuhrman v. Georgia (1972) 408 U.S. 238, 313 [concurring opinion of White, J.].)
We are not persuaded.
To comply with the Eighth Amendment, a state’s capital punishment scheme must “ ‘afford some objective basis for distinguishing a case in which the death penalty has been imposed from the many cases in which it has not.’ ” (People v. Crittenden (1994) 9 Cal.4th 83, 154.) The same rule applies to the life without parole portion of the special-circumstance law. (People v. Estrada (1995) 11 Cal.4th 568, 575-576.) The narrowing function is provided in California by the special circumstances in section 190.2, subdivision (a). (People v. Crittenden, supra, at pp. 154-156.)
Our Supreme Court “has consistently rejected the claim that the statutory special circumstances,... do not adequately narrow the class of persons subject to the death penalty.” (People v. Pollock (2004) 32 Cal.4th 1153, 1195; see, e.g., People v. Abilez (2007) 41 Cal.4th 472, 528; People v. Taylor (2001) 26 Cal.4th 1155, 1183; People v. Catlin (2001) 26 Cal.4th 81, 158-159; People v. Marshall (1990) 50 Cal.3d 907, 945-946 [“the ‘triple use’ of the same facts, i.e., to support (1) the conviction of first degree murder on a theory of felony murder, (2) the finding of the felony-murder special circumstance, and (3) the imposition of the penalty of death” does not violate due process or cruel and unusual punishment clauses of United States Constitution].)
Rose asserts these cases were mistakenly decided and seeks to preserve the issue for further review. We are bound by Supreme Court decisions that have rejected Rose’s argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore find no constitutional violation in the imposition of the special circumstance here.
4. Imposition of a term of 25 years to life in prison for the firearm enhancement does not violate the multiple conviction rule or principles of double jeopardy.
Rose contends his murder conviction and the true finding on the firearm enhancement under section 12022.53, subdivision (d) violate the “multiple conviction rule” embodied in People v. Ortega (1998) 19 Cal.4th 686, 692-694 and People v. Pearson (1986) 42 Cal.3d 351, 355, 359-360. He argues the firearm enhancement under section 12022.53, subdivision (d), requires proof the defendant proximately caused the death of the victim and this element necessarily is subsumed within the murder conviction because enhancements must be considered in connection with the offense for purposes of the multiple conviction rule in light of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and People v. Seel (2004) 34 Cal.4th 535. Rose acknowledges the California Supreme Court has rejected these arguments in People v. Sloan, supra, 42 Cal.4th at pp. 115-124, and People Izaguirre (2007) 42 Cal.4th 126, 130-134, but believes these cases were wrongly decided and seeks to preserve the issue for further review. We are bound by these holdings. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) In any event, we agree with the analysis contained in these precedents.
The “multiple conviction rule” is a shorthand way of referring to the prohibition against multiple convictions based on necessarily included offenses. (People v. Sloan (2007) 42 Cal.4th 110, 115.)
Rose additionally contends the murder conviction and the true finding on the firearm enhancement under section 12022.53, subdivision (d), violates constitutional double jeopardy principles which Rose asserts should be applied where multiple punishment arises from a single prosecution. Rose concedes U.S. Supreme Court precedent requires a contrary result. (Hudson v. United States (1997) 522 U.S. 93, 99[139 L.Ed.2d 450]; Missouri v. Hunter (1983) 459 U.S. 359, 368 [74 L.Ed.2d 535].) However, Rose contends the decisions of the U.S. Supreme Court in Apprendi v. New Jersey, supra, 530 U.S. 466, and Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111 compel a reassessment of Hudson v. United States and Missouri v. Hunter.
We are bound by the pronouncements of the United States Supreme Court (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and therefore reject Rose’s contention.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.