Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA066001, Candace J. Beason, Judge.
Richard D. Miggins, 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, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted John Allah (appellant) of first degree murder (Pen. Code, § 187, subd. (a)) (count 1), possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 2), and possession of ammunition (§ 12316, subd. (b)(1)) (count 3). In count 1, the jury found that appellant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). In count 3, the jury found that appellant had been convicted of a felony. With respect to all three counts, the jury found appellant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court found appellant had suffered one prior prison term (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
All further references to statutes are to the Penal Code unless otherwise indicated.
The trial court sentenced appellant to a total term of 80 years to life. The sentence consisted of 25 years to life for the murder in count 1, doubled to 50 years because of the prior strike. The trial court imposed a consecutive 25-years-to-life term for the firearm-use enhancement in count 1. In count 2, the court imposed a consecutive midterm of two years, doubled to four years because of the strike. The trial court stayed the sentence in count 3 under section 654. The court imposed a consecutive one-year term for the prison prior.
Appellant appeals on the grounds that: (1) there was insufficient evidence to establish that the murder was caused by a bullet fired from the car in which appellant was alleged to have been riding; (2) the evidence was insufficient to support the convictions in counts 2 and 3; (3) the trial court erred by failing to instruct the jury with CALJIC No. 12.44 on the crime of possession of a firearm; (4) the People failed to prove a pattern of criminal gang activity, and the true findings on the gang allegations must be reversed; (5) the trial court erred by failing to instruct sua sponte with a unanimity instruction such as CALJIC No. 17.01 in count 3; (6) the trial court erred by failing to instruct the jury with CALJIC No. 2.11.5; and (7) cumulative error requires reversal. Appellant also states that he joins in all issues raised by his codefendant, Travis Cooper (Cooper), that might accrue to his benefit. Cooper, however, did not join in this appeal.
The jury deadlocked on the charges against Cooper, and the trial court declared a mistrial in his case.
We hold that the evidence is sufficient to support the jury’s guilty verdicts but insufficient to support the gang enhancement and, consequently, the firearm enhancement in count 1. There was no prejudicial instructional error.
FACTS
Prosecution Evidence
Donnie Shay (Shay) and Draper Manning (Manning), the victim in this case, went to a party in Pasadena on El Sereno Avenue near Fair Oaks Drive on January 20, 2006. There were 75 to 100 guests at the party. At approximately midnight, Shay, who was smoking marijuana that night, went to sit in his car. Shay saw Manning walking toward Shay’s car with a plate of food while talking to one of their friends. Manning gestured to Shay that he would join him in a minute and walked past Shay’s car to the rear. One or two minutes later, Shay heard gunshots. He looked to his left and saw gunfire. Shay tried to lower his seat for protection but could not, and he opened his door and crawled under his car. The gunfire seemed to come from a moving car because the sound traveled past Shay’s car. Shay heard six or seven shots. After the sound passed him, Shay waited a couple of seconds and ran back toward the party. Shay did not know Manning had been shot until someone called him from the hospital.
Shay was familiar with a gang called the Altadena Block Crips (ABC) and knew that the gang did not get along with the Pasadena Denver Lane Bloods (PDL). Shay did not believe the ABC gang would hang out in the area of the party, since there were a lot of PDL members at the party.
On the way to the hospital, approximately 30 minutes after the shooting, Shay drove by a gray or brown car that was stopped with all four doors open as if someone had jumped out of it. The police had blocked off the area where the car was stopped. Shay thought that, from the back, the car looked like the one that was involved in the shooting. He had seen only the back of the car that passed by during the shooting. He specifically saw the tail lights and saw it was a light-colored car. It was the only car that passed by at that time. Shay later said he believed the car near the hospital was the same car as the one from the shooting because of the presence of police. Shay denied that he recognized the car near the hospital because he had chased it and shot at it.
Shay testified that defense counsel’s photograph of a 2005 silver Ford Focus did not appear to depict the car he saw at the shooting. Shay denied testifying at the preliminary hearing that he was drunk when he went to his car. Although he had used the word “drunk,” he had not referred to alcohol. He acknowledged he previously testified he had not smoked marijuana that night. He admitted he was dozing off when he heard the shots.
Herbert Person (Person) and a friend were driving in Person’s Chevrolet Impala to the party when they stopped and got out of the car to talk to some people. After perhaps two minutes they heard gunshots close by. Person and his friends got in his car and drove toward the party where Person saw Manning lying on his back in the street. None of the people there had any weapons. Person helped pick up Manning and put him in Person’s car. Manning was still breathing when they left the scene, but he stopped breathing on the way to the hospital.
The deputy medical examiner, Dr. Yulai Wang, testified that Manning was killed by a single gunshot wound to the back that perforated his lungs and aorta. He died from loss of blood. Manning was also shot in the leg. There was no evidence of close range firing.
Corporal Alejandro Peinado (Peinado) and two other officers from the Pasadena Police Department stopped Shay the night after the shooting. Peinado knew Shay to be a member of PDL. Peinado saw that Shay was very sad and pulled him aside and asked how he felt about everything. Shay told Peinado that he was sitting in his car waiting for Manning to bring him a plate of food. Shay saw Manning walking toward his car when a 2005 gray Ford Focus pulled alongside Manning, and the occupants shot at Manning four times and killed him. Shay saw the vehicle’s occupants begin firing at the house where the party was being held. The vehicle then took off. Shay said the occupants of the Focus were three Crip gang members. When asked how he knew, Shay refused to answer. Peinado denied feeding information to Shay about the car and its occupants.
At trial, Shay denied telling Peinado anything about the shooting and said he merely agreed with what Peinado told him. Shay said that he did not mind testifying in court.
A recording of a 911 call was played for the jury. The caller, who lived on Bellefontaine Street, south of the spot where Manning was shot, reported a car parked in a haphazard way in his driveway. The car’s lights were on and the door was open. The caller said he had heard a lot of screeching, as if there had been a chase. The sensor lights in his back yard had been on for a long time and there was an alley behind his house. The call came in at 12:32 a.m. on January 21, 2006. The dispatcher told the caller that no officers could respond because they were occupied with a shooting.
Peinado testified that no officer arrived at the Bellefontaine Street location earlier than 1:45 a.m., which was almost two hours after the shooting. The location was about four city blocks from Huntington Hospital. When Peinado arrived, he saw a four-door 2005 silver Ford Focus in the driveway. The driver’s door and the rear passenger door on the driver’s side were open. The engine was running, the lights were on, and the key was in the ignition. The car was in gear and was pinned against a pillar. It was riddled with bullet holes. There were three bullet strikes on the roof, two of which penetrated the vehicle. They were fired from a downward angle. All of the bullets were fired into the rear of the vehicle toward the front and from the right side of the vehicle toward the left.
Peinado found two rental contracts inside the Focus. One was for the Focus and one was for another car rented to a female. Peinado gave the contracts to Detective Julianna Finney, who was assigned to investigate Manning’s homicide. One of the renters was appellant. Two cell phones were in the car. One was on the front center console and the other was on the rear floorboard directly behind the driver’s seat. The phone in the front had a dead battery. Peinado also found two Ziploc baggies with marijuana residue and a dark blue jacket with a nine-millimeter bullet lying next to it behind the car. Appellant later told Detective Finney it was his jacket.
Laura Denham (Denham) dated appellant for approximately three years. Appellant associated with the ABC gang and wore tattoos to show his membership. Denham did not approve of appellant’s gang friends, but she liked Daniel Duncan (Duncan) and Chetu Davis (Davis), two of appellant’s friends. Denham and appellant decided to end their relationship in December 2005, but they continued to see each other occasionally. In mid-January 2006, Denham took appellant to a car rental place in Glendale where he rented a silver car.
A few days after appellant rented the car, he called Denham at 1:00 a.m. and asked for a ride because his rental car had been stolen. He wanted her to get to his location quickly. Denham drove to Glendale and saw appellant exit an apartment building. He was limping. He was anxious to leave the area because of police. Appellant wanted to go to a motel, and they went to one in Eagle Rock.
At the motel, appellant cleaned several cuts on his legs. He also had a wound on the top of his head, and he told Denham his head had been grazed with a bullet. He said he had been driving down El Sereno Avenue with four friends and his car had been shot at by Blood gang members. He said he was followed and had driven very fast. The car following him came so close that he believed he had to get out and leave his car. He stopped near the hospital and left it. He injured his legs from falling while he ran. Denham knew the area of El Sereno Avenue to be Blood territory, and she and appellant had always made a point not to go in that area.
Appellant borrowed Denham’s phone at the motel and made between seven and 10 calls soon after they arrived. Most calls were to Duncan. Appellant was trying to find his friends, especially Davis, and was asking the people he called “Have you seen Che (Davis)?”
Duncan stopped by the motel room. Appellant told Duncan he had been in a car that had been shot at driving down El Sereno Avenue. Appellant told Duncan he did not have his gun because it was broken.
At approximately 7:00 a.m., appellant and Denham drove to Davis’s house. Davis’s brother, Cap, did not know where Davis was. The three of them drove to a Denny’s and waited, and eventually Duncan arrived with Davis. Davis was limping and said he had hurt his leg. Duncan and Davis entered Denham’s car while she stayed outside. She had a telephone conversation with Detective Finney during that time. She returned to the car and told the men she had to leave.
Denham drove to her parent’s house to find out why Detective Finney had been there. She then drove home where detectives were waiting for her. She told them she knew nothing. Appellant telephoned her and asked if she had seen his car keys. Appellant was on the speaker phone, and he also spoke with the detectives.
Later, appellant arrived at Denham’s home with a female friend, Nicole Foster (Foster), who was also called “Knick Knack.” Appellant had described Foster to Denham as his “home girl.” Foster told the detectives that appellant had spent the night with her, and Denham did not contradict her.
Several days later, Denham consulted an attorney. Afterwards, she spoke with police and told them about the night she had picked up appellant. Appellant was then arrested.
Duncan had known appellant and Davis since childhood. Duncan had lived in Altadena most of his life, but he was not a member of ABC. Duncan did not know Davis to be a member of the ABC gang. Duncan knew appellant’s codefendant, Cooper, but did not know if he was a member of the ABC gang.
Duncan recalled being called in the middle of the night to meet appellant at a hotel in Eagle Rock. He did not know who was with appellant because she was under the covers. He did not recall if Denham was in the hotel room. Appellant called Duncan only because Duncan had paged appellant in order to buy some marijuana, which appellant sold at that time. When Duncan went to the room, he and appellant smoked and conversed. Appellant seemed fine and was not nervous or high strung. He had no injuries. Duncan did not recall if appellant asked him Davis’s whereabouts. Appellant told him that “the rental car was stolen or carjacked or something.” Duncan remembered seeing appellant in the rental car but he did not remember when.
After leaving the motel room, Duncan went home. He saw Davis the next day at Davis’s house, where Duncan stopped after going to Denny’s. He was supposed to meet appellant at Denny’s, but appellant did not show up. Duncan did not recall setting a time for the meeting. Duncan had not seen Cooper for years.
When Detective Finney interviewed Duncan, he said he, appellant, and Cap Davis were at Duncan’s home on the afternoon of January 20, 2006. Appellant was drinking with them and left the house at approximately 6:00 p.m. for Denham’s house. Between 2:00 and 3:00 a.m. on the following morning, appellant asked Duncan to come to a motel where Duncan saw appellant and Denham. Appellant was “very high strung” and nervous and said his rental car had been stolen and that he might be in trouble. Appellant did not mention being carjacked or shot at. Duncan left the motel and went home. The jury saw a videotape of Duncan’s interview.
Detective Max Dahlstein of the Pasadena Police Department examined the Focus and saw the bullet holes in the roof. He examined the top of appellant’s head three days after his arrest. Detective Dahlstein stated that the bullet holes in the car showed that the bullets had entered the car and exited through the headliner above the driver’s seat and hit the interior of the windshield. He believed it was possible the driver had been injured. He identified a photograph depicting appellant’s head. The photograph showed a wound across the top of appellant’s scalp that was about a quarter-inch wide.
Detective Finney testified that one expended projectile was found north of Manning’s blood trail. It was either a.38 or a.357. A nine-millimeter projectile was found in the driveway of 1692 El Sereno Avenue, which was located two houses south of the party house. A nine-millimeter bullet was found at the site of the Focus. Detective Finney examined the phone in the Focus’s rear seat to find recent calls and the address book. She called the entry labeled “Mom” and reached Cooper’s mother.
Detective Finney participated in a search of Davis’s home where multiple.38 rounds were found. A search warrant was executed at Denham’s home, and police found a few.22 caliber live rounds and a funeral program for a Crip gang member. Based on the witness statements and the ballistic evidence, Detective Finney believed the shooting car was traveling westbound on Fair Oaks Drive and made a southbound turn onto El Sereno Avenue. Detective Finney acknowledged she investigated whether there was a dark Impala involved in the shooting, but found it to be a dead end.
Alex Padilla, a forensic specialist, processed the abandoned Focus on Bellefontaine Street for latent prints. He recovered no prints of sufficient quality from the interior of the vehicle, but nine print cards resulted from the examination of the exterior. He also collected scents onto scent pads.
David Miranda, a forensic specialist, examined the prints. Cooper’s prints were found on the exterior of the front driver’s side door. A print from the right rear door matched Andrew Alejos. On the right rear window, there were prints belonging to Jamaal Edward Charles (Charles). Prints on the right front and rear windows and on the trunk lid belonged to Troy Alexander Dickens. None of the recovered prints matched appellant.
Charles testified under a grant of immunity. His nickname was Jelly. He associated with ABC, and Cooper and appellant were his friends. Appellant never said he was a member of ABC, but he associates with them. Charles knew Andrew Alejos, and Troy Dickens was his best friend. Charles grew up with Manning, and Charles did not know Manning to be a member of PDL. Charles said, “Yeah, he had been my friend. Because he changed sides on me or nothin’.” Charles did not know how his own prints could be on the Focus. Charles said he had never seen appellant with a silver Ford Focus.
Charles’s mother told him that Manning had been shot. She called after midnight when Charles was sitting in Cooper’s Mazda with Cooper and Biscuit. Charles said that he and Cooper did not make any telephone calls on the night of the murder. Charles did not see Cooper receive any calls, and Cooper did not have his phone with him.
Biscuit was identified as Steven Holmes.
Charles testified that the detectives present at his police interview told him what to say after threatening him that he would go down for Manning’s murder if he did not say what he was told. Charles lied when he told them he was at his parents’ house on the night of Manning’s murder because he wanted to see what they were going to say. Police told him to say “Biscuit’s a rider” during the interview. Charles said he knew that Cooper and Biscuit were innocent because he was with them, so he agreed to say what he was told. Charles told the detectives that there were two shooters involved in Manning’s murder.
Detective Finney testified that Charles was not threatened during his interview. At one point, Charles wrote the name “Little Daf” on a piece of paper as someone who had been involved in the murder. He said “Little Daf” was Biscuit’s new name. Charles then tried to eat the piece of paper. The videotape of Charles’s interview was played for the jury.
During appellant’s interview with police, he changed his story several times regarding the rented Focus. At first he was surprised it was not parked in front of Denham’s house and wanted to report it as stolen. After two hours, he said that two men had stolen the keys and the car. Detective Finney saw scratches on appellant’s hands and legs. Appellant had shards of glass in the palms of his hands, and she recalled that she had observed shattered glass near the Focus. Pictures taken at the police station were displayed to the jury. Detective Finney testified that appellant had a small wound on his scalp. She believed a bullet went through the roof of the Focus, grazed appellant’s head, and went through the windshield. Appellant did not tell the detectives he had been shot at, and he never admitted that he knew Charles.
Detective Steve Long had had contact with Cooper and Cecelia Bowen (Bowen) during an incident where the two were together in a car. Bowen asked police to leave her phone with Cooper, and Cooper took possession of Bowen’s phone. At the time of Manning’s murder, Bowen was in the custody of the Sheriff’s Department.
Detective Finney obtained phone records for the cell phones of Denham, appellant, the phone found in the back of the Focus (registered to Bowen), a phone registered to Charles, and a phone registered to Janice Cooper and used by Cooper. Some of the phones could “chirp” messages, which meant they had a walkie-talkie capability. Detective Finney also collected the phone records of the home phones of Nicole Foster, Chetu Davis and Duncan. The phone records established that numerous chirps were made between the phones from the early evening of January 20 through the early morning of January 21. The phone with the dead battery found in the front of the Focus matched appellant’s phone number.
At approximately the time of the shooting, Bowen’s phone chirped Charles’s phone numerous times. Eleven minutes after the murder, Cooper made a phone call to Foster who later appeared with appellant at Denham’s and gave him an alibi. At 12:44 a.m. on January 21, Cooper’s phone called the apartment where Denham picked up appellant on the morning of the murder. The chirps from the phone in the rear of the Focus were bouncing off the cell phone tower in the 1400 block of North Marengo, which was only six blocks from the murder scene.
Detective Richard Pippin of the Los Angeles County Sheriff’s Department testified as a gang expert. The PDL and ABC gangs are enemies. Detective Pippin had no field interview cards on appellant and appellant had no record of having admitted to being a member of ABC. Detective Pippin testified regarding a document, which appeared to be rap lyrics, written by appellant. The document displayed the classic signs of having been written by a Crip. Detective Pippin also testified about pictures of appellant’s tattoos that he was shown. Based on the information he had and upon appellant’s associates, Detective Pippin was of the opinion that appellant was an ABC member. Detective Pippin also believed that Andrew Alejos, Charles, Troy Dickens, Davis, and Duncan (whose moniker was Bird) were all ABC members.
Detective Pippin stated that Manning’s murder occurred in PDL territory, and he believed the murder was done in retaliation for the benefit of the ABC gang. If Chetu Davis was in the car, the likely reason was retaliation for the prior shooting of Davis, a crime Detective Pippin had investigated. Detective Pippin stated that Shay had been shot at twice since Manning’s murder.
Defense Evidence
Cooper called Charles’s mother, Vivian, to the stand. She acknowledged that “ABC” and “WS” are painted on her garage. “WS” stood for West Side. Charles had been a childhood friend of Manning’s. On the night of the shooting, Charles’s girlfriend Tamika called Vivian and told her that someone had killed Manning. Vivian called Charles’s cell phone and told him. Charles said he was with Tiny at that moment. Vivian later learned that Tiny was Cooper. Vivian recognized appellant in court as someone who had been to her house many times.
DISCUSSION
I. Sufficiency of the Evidence in Count 1
A. Appellant’s Argument
According to appellant, the evidence regarding his participation in the shooting was inconclusive and was too weak and insubstantial for any reasonable juror to find him guilty. Even assuming appellant was inside the Focus, the evidence did not establish that the fatal bullet was fired from that car. Appellant’s convictions must therefore be reversed. In addition, because the People failed to prove that any of the principals discharged a firearm that proximately caused the death of Manning, the firearm enhancement under section 12022.53, subdivision (d) must be stricken.
B. Relevant Authority
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence— that is, evidence which is reasonable, credible, and of solid value— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Given this court’s limited role on appeal, appellant bears an enormous burden in claiming there was insufficient evidence to sustain the verdict. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
C. Evidence Sufficient
We believe sufficient substantial evidence supports the jury’s guilty verdict in count 1. Shay testified that the gunfire that killed Manning was fired from a car that looked like the Focus. He stated that he saw the rear of the car as it fled down the street, and it was the only car that passed by at the time of the shooting. Shay told Peinado that he saw Manning walking toward Shay’s car when the occupants of a 2005 gray Ford Focus shot at Manning four times and killed him. Shay saw the vehicle drive off, and he saw the occupants begin firing gunshots at the house where the party was being held. Shay said the occupants of the Focus were three Crip gang members. Although at trial Shay denied making affirmative statements, he testified that he was truthful when speaking with Peinado.
As discussed infra, the firearm enhancement in count 1 was alleged pursuant to section 12022.53, subdivisions (d) and (e)(1), which required the gang enhancement to be pled and proved (§ 186.22, subd. (b)) in order to impose vicarious liability on appellant for personal discharge of a firearm causing death. The gang enhancement was not proved.
The evidence showed that appellant rented the Ford Focus from Enterprise on January 19, 2006, at 11:50 a.m. The shooting occurred on the following day, at around midnight. Denham testified that appellant said he was driving down El Sereno Avenue, where the shooting took place, when he was shot at by Blood gang members. Appellant thus placed himself at the shooting location. The pattern of bullet holes in the abandoned Focus showed that two bullets had penetrated the roof of the Focus and had apparently then traveled through the windshield. Appellant told Denham he had been grazed by a bullet, and police confirmed he had a wound to the head. When Denham picked up appellant in the early hours of the morning after the shooting, she saw that he was limping and had cuts on his hands. The 911 call from Bellefontaine Street, where the homeowner heard screeching, showed that the Focus had been chased before being abandoned in the driveway. The fact that the Focus had been shot at numerous times while being pursued very shortly after the murder was also an indication that the car had been involved in the Manning shooting. Police found appellant’s jacket lying outside the car, and appellant’s telephone was found in the front center console area of the Focus. Thus, there was substantial circumstantial evidence appellant was in the Focus and the shots came from the Focus.
As stated previously, circumstantial evidence may be sufficient to connect the defendant to a crime and prove his guilt beyond a reasonable doubt, and in this case, we have circumstantial evidence in abundance. (People v. Stanley (1995) 10 Cal.4th 764, 793.) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Bean (1988) 46 Cal.3d 919, 932–933.)
In addition, we note that appellant’s police interview revealed many evasions and inconsistencies indicative of a consciousness of guilt. Appellant tried to avoid showing his tattoos to police and said they consisted of just “random work.” It was shown at trial that appellant has “Altadena” tattooed across his back. He also had tattoos saying “Criminal,” and “Criminal Class Loc’Z”, which Detective Pippin described as a group within ABC. He also had a “B” on the left arm and a “C” on the right arm, which signified “Block Crip.” Appellant told police there were no Crips in the Focus while he had the car. He later said he gave the keys to three of his homies. He said he did not know Charles, but Charles’s mother said appellant had been at her house many times.
Appellant maintained at first that he did not know where his rented car was and insisted he had to telephone to report it being stolen. He feigned astonishment when told his car had crashed, and he railed against the thieves, alluding to some “new guys” on his street whom he did not trust. He later said that he was carjacked on Magnolia Street in front of Denham’s residence. He even picked out two men from a gang book and identified them as the carjackers. He denied being on El Sereno Avenue on the night of the shooting, a fact contradicted by what he had told Denham. He pretended not to know Cooper but later referred to him as “Tiny,” although the detectives had not mentioned Cooper’s moniker. Appellant’s statement consisted of a labyrinth of lies and ineffectual attempts to adjust the lies when he reached a dead end. Also, his appearance at Denham’s with Foster, who provided him with an alibi, showed consciousness of guilt.
Sufficient evidence supports a finding that appellant was a participant in the murder, either as the shooter or as an aider and abettor who drove the car containing the shooter. Appellant’s argument is without merit, and the conviction must stand. Although we believe the evidence supports the finding that the shooter fired the fatal bullets from the Focus, there was no evidence that appellant personally fired the fatal shot. The failure of proof of the gang enhancement, discussed infra, prevents imposition of the firearm enhancement based on appellant’s vicarious personal use.
II. Sufficiency of the Evidence in Counts 2 and 3
A. Appellant’s Argument
Appellant contends there was insufficient evidence to establish beyond a reasonable doubt that appellant had joint and constructive custody of the gun and ammunition, which was the theory upon which the People based the charges in counts 2 and 3. According to appellant, no reasonable juror could have concluded that appellant had any knowledge that there was a gun in the possession of a passenger or passengers in the car allegedly driven by appellant.
B. Relevant Authority
As stated previously, this court must “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja, supra, 4 Cal.4th at p. 1138.)
Section 12021, subdivision (a)(1) provides in pertinent part that “[a]ny person who has been convicted of a felony... and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.”
Section 12316, subdivision (b)(1) provides in pertinent part that “[n]o person prohibited from owning or possessing a firearm under Section 12021 or 12021.1 of this code... shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition.”
Possession may be physical or constructive, and more than one person may possess the object in question. (People v. Peña (1999) 74 Cal.App.4th 1078, 1083–1084.) “A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others. [Citations.]” (Ibid.) Exclusive possession of the weapon is not required. (People v. Neese (1969) 272 Cal.App.2d 235, 245.) The elements of possession may be established by circumstantial evidence as well as any reasonable inferences that may be drawn from that evidence. (People v. White (1969) 71 Cal.2d 80, 83; People v. Groom (1964) 60 Cal.2d 694, 696–697.)
C. Evidence Sufficient
Having concluded there was sufficient evidence to support the guilty verdict in count 1, we also conclude a reasonable jury could find appellant guilty of the counts charging possession of a firearm and possession of ammunition. As we have stated, appellant was the person who rented the Focus, and circumstantial evidence showed the Focus to be the car from which the shots were fired. Two men were seen running from the abandoned Focus, and appellant’s jacket and cell phone were found with the car. Appellant sustained injuries consistent with having been the driver of the Focus while it was being pursued and shot at, presumably by a member of PDL who witnessed Manning’s shooting. During his interview with police, Charles confirmed appellant was in the car at the time of the murder. The live bullet found with the abandoned Focus was lying near appellant’s jacket.
The totality of the evidence supports the jury’s finding that appellant knew the gun and ammunition were in the car, and that, just as he drove and thereby controlled the car during the targeted shooting, he exercised control over the weapons and ammunition. (People v. Neese, supra, 272 Cal.App.2d at p. 245.)
III. Failure to Read CALJIC No. 12.44
A. Appellant’s Argument
Appellant contends that, because the trial court failed to instruct the jury with CALJIC No. 12.44 on possession of a firearm by a felon, the jury was not given the elements of the offense and could not have properly concluded appellant committed the crime. Appellant asserts the error cannot be considered harmless.
CALJIC No. 12.44 provides: “Defendant is accused in [count 2] of having violated section [12021, subdivision (a)(1)] [12021.1, subdivision (a)] of the Penal Code, a crime.] [¶] Every person who, having previously been convicted of a felony, owns, purchases, receives, or has in [his] [her]possession or under [his] [her] custody or control any pistol, revolver, or other firearm is guilty of a violation of section [12021, subdivision (a)(1)] [12021.1, subdivision (a)] of the Penal Code, a crime. [¶] In this case, the previous felony conviction has already been established by a stipulation so that no further proof of that fact is required. You must accept as true, the existence of this previous felony conviction. [¶] [There are two kinds of possession: actual possession and constructive possession. [¶] ‘Actual possession’ requires that a person knowingly exercise direct physical control over a thing. [¶] ‘Constructive possession’ does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons.] [¶] [One person may have possession alone, or two or more persons together may share actual or constructive possession.] [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. [The defendant] [The person previously convicted of a felony] [owned] [purchased] [, or] [received] [had in [his] [her] possession [or] [had under [his] [her] control] a (firearm); and [¶] 2. [The defendant] [The person] had knowledge of the presence of the (firearm).”
B. Relevant Authority
The trial court must instruct the jury on all general principles of law necessary for the jury to properly perform its function: “‘“It 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.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
The standard of review for claims relating to alleged instructional error on elements of a crime is de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Under the California Constitution, instructional error is reviewed under the Watson standard. (People v. Flood (1998) 18 Cal.4th 470, 489–490 (Flood); People v. Wims (1995) 10 Cal.4th 293, 314–315.) In order for error to be harmless, there must be a reasonable probability that the outcome of a defendant’s trial would have been different had the trial court properly instructed the jury. (Flood, supra, at pp. 483, 490.) With respect to the United States Constitution, a trial court’s error in omitting an element from the charge to the jury is analyzed for harmless error under the stricter Chapman standard. (Neder v. United States (1999) 527 U.S. 1, 9, 15.) The test is “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (Id. at p. 15.) It must be evident that a rational jury would have found the defendant guilty absent the error. (Id. at pp. 16, 18.)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
Chapman v. California (1967) 386 U.S. 18 (Chapman).
“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 753–754; People v. Holt (1997) 15 Cal.4th 619, 677 [instructions are not considered in isolation].) “The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 277 (Dieguez); see also People v. Honeycutt (1946) 29 Cal.2d 52, 60–62.)
C. Proceedings Below
At the close of the People’s case, the parties stipulated that appellant and his codefendant were each convicted of a felony within the meaning of section 12021 (count 2) and that appellant was convicted of a felony within the meaning of section 12316 (count 3).
D. Failure to Read Instruction Harmless
Although the trial court failed to read the appropriate instruction for count 2, we believe that the instructions given adequately informed the jurors of the elements required to find appellant guilty of the charge. All elements that the People were required to prove in order to convict appellant of violating section 12021, subdivision (a) were explained and resolved against appellant by other, properly given instructions.
The elements that were required to be proved in count 2 were: (1) that appellant had been previously convicted of a felony; (2) that he had a firearm in his possession or under his control; and (3) that he had knowledge of the presence of the firearm. (See, e.g. People v. Spirlin (2000) 81 Cal.App.4th 119, 130 [section 12021 violated whenever a felon intentionally has the weapon in constructive or actual possession]; People v. Neese, supra, 272 Cal.App.2d at p. 245.) The stipulation resolved the issue of whether appellant had a prior felony conviction. CALJIC No. 1.24 explained actual possession and constructive possession, the latter of which required a person to knowingly exercise control over or the right to control a thing, either directly or through another person. CALJIC No. 1.24 also explained that one person can possess an object on his own, or two or more persons together might share actual or constructive possession. CALJIC No. 1.21 explained that “knowingly” meant with knowledge of the existence of the fact in question and that it did not require specific intent.
The jury was thus adequately instructed in the elements of count 2. Moreover, under the facts of this case, a reasonable jury that found appellant guilty of first degree murder for Manning’s shooting had to conclude that appellant necessarily knew the guns were in the car and had either actual or constructive possession of the gun while driving (or even riding) in the car, since either he or a passenger or passengers fired from the car. (See People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410 [crime committed when the convicted felon has a firearm under his control in any way].) Given the record in his case, the entire charge to the jury, and the entire verdict, there is no reasonable probability appellant would have achieved a more favorable result, and any error in failing to read CALJIC No. 12.44 was harmless under any standard.
IV. Proof of Gang Allegation
A. Appellant’s Argument
Appellant contends that the evidence given by the gang expert regarding the pattern of criminal activity by the ABC gang was insufficient, since one of the predicate crimes—discharging a firearm in public in violation of section 246.3—is not a crime listed in section 186.22, subdivision (e).
B. Relevant Authority
The same principles recited previously in reviewing the sufficiency of the evidence of substantive crimes apply to claims of insufficiency of the evidence to support a jury’s true finding on a gang allegation. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.)
A ‘“pattern of criminal gang activity’” is shown by “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” of the offenses listed in section 186.22, subdivision (e). (§ 186.22, subd. (e).) At least one of the offenses must have occurred after the effective date of the statute. The last of the named offenses must have occurred within three years after a prior offense. The offenses must have been committed on separate occasions, or by two or more persons. (§ 186.22, subd. (e).)
C. Proceedings Below
Detective Pippin testified that the primary activities of the ABC gang included crimes listed in section 186.22, such as robberies, drug trafficking, gun possession, and aggravated assaults. He testified that he knew Jamaal Drane (Drane) and Christian Devon Davis to be ABC members. He said he had recently arrested Christian Davis for unlawfully and recklessly discharging a firearm, possession of cocaine and possession of a gun. The prosecutor presented a certified document attesting to Christian Davis’s conviction for violating section 246.3, discharging a firearm in public. At that time, Christian Davis admitted a gang allegation pursuant to section 186.22. Detective Pippin confirmed that this was the Christian Davis to whom he had referred. The prosecutor presented a certified document attesting to Drane’s conviction for assault with a semi-automatic firearm in violation of section 245, subdivision (b) and his admission of a gang allegation pursuant to section 186.22.
D. Evidence Insufficient
Appellant is correct in his assertion that one of the predicate crimes testified to by Detective Pippin—Christian Davis’s conviction of violating section 246.3—is not a qualifying offense under section 186.22, subdivision (e). The other predicate crime was clearly valid. Detective Pippin testified that Drane was a well-known ABC member who was convicted of a violation of section 245, a listed offense. The People argue that, since appellant’s current conviction of first degree murder is a qualifying offense under section 186.22, subdivision (e)(3), the requirement of two or more predicate offenses is satisfied.
It is well established that the charged offense can be a predicate offense. (People v. Loeun (1997) 17 Cal.4th 1, 9; People v. Gardeley (1996) 14 Cal.4th 605, 625 (Gardeley); People v. Olguin, supra, 31 Cal.App.4th at p. 1383.) In this case, however, according to People’s Exhibit No. 29 (the certified document Detective Pippin identified as attesting to Drane’s conviction), Drane sustained his conviction for the one valid predicate offense on July 25, 2002. Appellant was not convicted until December 10, 2007, for a crime he committed in January 2006. As the jury was instructed, for the gang enhancement to apply, the prosecution had to show the gang engaged in a pattern of criminal activity, i.e., that gang members committed two or more predicate offenses during the statutorily defined period (at least one offense committed after September 26, 1988, with the last of the offenses committed within three years of a prior offense). (§ 186.22, subd. (e); Gardeley, supra, 14 Cal.4th at pp. 616–617; People v. Fiu (2008) 165 Cal.App.4th 360, 388; In re Lincoln J. (1990) 223 Cal.App.3d 322, 328, fn. 2.) Here, there was at least a four-year gap between Drane’s crime and appellant’s. As a result, there was insufficient evidence to establish the time element of the pattern of criminal gang activity, the requirement that the last of the offenses must “[have] occurred within three years after a prior offense.” (§ 186.22, subd. (e); Gardeley, supra, 14 Cal.4th at p. 625.) Therefore, there was insufficient evidence to sustain the true finding on the gang allegation, and it must be reversed.
In addition, the record shows that the firearm use allegation pursuant to section 12022.53, subdivision (d) that was found true by the jury was actually a finding of use by a principal and was dependent upon the true finding in the gang allegation. (§ 186.22, subd. (b).) At sentencing, the prosecutor stated that appellant “should receive a sentence of 25 years to life for the 12022.53 (d) pursuant to subsection (e) allegation.” (§ 12022.53, subd. (e)(1).) Therefore, the term imposed for the firearm-use enhancement must also be stricken.
V. Lack of Unanimity Instruction in Count 3
A. Appellant’s Argument
Appellant contends the trial court had a sua sponte duty to provide the jury with a unanimity instruction such as CALJIC No. 17.01 regarding the possession of ammunition in violation of section 12316, subdivision (b)(1). He argues that the single count could have been based on two separate violations of the statute. According to appellant, the potential violations were possession of the bullets in the firearms and possession of the live nine-millimeter bullet found outside the Focus. Because the court failed to properly instruct the jury, and the error cannot be deemed harmless, the conviction should be reversed.
CALJIC No. 17.01 provides: “The defendant is accused of having committed the crime of ___________.... The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction... may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty,... all jurors must agree that [he] [she] committed the same [act] [or] [omission].... It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”
B. Relevant Authority
A jury verdict must be unanimous in a criminal case. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) Where the accusatory pleading charges a single offense, and the evidence shows the defendant committed more than one act that could constitute that offense, the jury must be instructed that the defendant can be found guilty only if the jurors unanimously agree the defendant committed the same, specific act comprising the crime. (Ibid.; Dieguez, supra, 89 Cal.App.4th at pp. 274–275; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense that all jurors agree he or she committed. (Russo, supra, 25 Cal.4th at p. 1132.) “In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Id. at p. 1135.) Where required, a unanimity instruction must be given sua sponte. (Dieguez, supra, 89 Cal.App.4th at pp. 274–275.)
A unanimity instruction is not required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; Dieguez, supra, 89 Cal.App.4th at p. 275.) This “continuous conduct” exception applies when (1) the defendant’s acts are so closely connected that they form part of the same transaction and thus of the same offense, or (2) the statute implies a continuous course of conduct of a series of acts over a period of time. (People v. Jenkins (1994) 29 Cal.App.4th 287, 299; People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) The continuous conduct rule also applies when a defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for jurors to distinguish between them. (People v. Stankewitz, supra, 51 Cal.3d at p. 100.)
“‘A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.’ [Citations.] ‘[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury’s understanding of the case.’ [Citations.]” (People v. Beardslee (1991) 53 Cal.3d 68, 93.) Assuming a unanimity instruction was required to be given, it is settled that failure to give the instruction is ‘“harmless when disagreement by the jury is not reasonably probable.”’ (People v. Jenkins, supra, 29 Cal.App.4th at p. 299.)
C. Unanimity Instruction Not Required
No unanimity instruction was required in this case, since the possession of the ammunition in the guns inside the car and the lone bullet dropped outside the car formed part of a continuous transaction. As the People note, appellant was charged with possession of ammunition on the specific date of January 21, 2006. We have already concluded that the evidence showed appellant was in constructive possession of the firearms that were used in the shooting on that date. Although Manning was shot with a.38 or.357 firearm, Charles told police two guns were used in the shooting. An expended nine-millimeter bullet was found in the driveway of 1692 El Sereno Drive, two doors away from the party at number 1720. As the prosecutor argued, it is quite possible a final shot at the partygoers was taken from the Focus. The evidence showed the Focus was pursued and shot at, and appellant’s jacket and the live bullet were apparently dropped on the ground as appellant fled from the car as part of the continuous transaction that constituted the shooting spree resulting in Manning’s death. Appellant presented the same defense to all charges, asserting that there was no evidence he shot at anyone or was in a car from which shots were fired and arguing that the shots came from the party goers who saw rival gang members in the Focus as it passed by.
Moreover, we do not believe any reasonable juror would have concluded that appellant got out of the car and dropped the bullet but did not possess or have control over the ammunition in the guns used in the shooting. Any juror who concluded that appellant participated in the shooting as a direct shooter or as an aider and abettor also would have concluded that he possessed the ammunition that fell on the ground near his jacket, whether or not he personally dropped it. That bullet was part of the ammunition over which appellant exercised control during the shooting and not a separate incident. (See People v. Beardslee, supra, 53 Cal.3d at p. 93 [unanimity instruction not necessary where any jury that believed one act occurred would inexorably believe all acts occurred].) In this case, there was no risk the jurors did not agree on the offense committed by appellant with respect to the ammunition, and there can be no doubt that the jury would have reached the same result even if it had been given a unanimity instruction. Therefore, even if we were to conclude the unanimity instruction should have been given, we would find the failure to do so harmless under any standard. (See People v. Schultz (1987) 192 Cal.App.3d 535, 540, fn. 6 [courts disagree on standard for determining prejudice for failure to give CALJIC No. 17.01]; Chapman, supra, 386 U.S. at page 24 and Watson, supra, 46 Cal.2d at page 836.)
VI. Failure to Instruct with CALJIC No. 2.11.5
A. Appellant’s Argument
Appellant contends the evidence clearly supported the reading of an instruction discouraging speculation about possible perpetrators or persons involved in the charged offenses who were not joined in the trial. Without such an instruction the jury was likely distracted from their consideration of appellant’s guilt, and the prosecution’s burden of proof may have been lessened.
CALJIC No. 2.11.5 provides in pertinent part: “There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which the defendant is on trial. [¶] Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your [sole] duty is to decide whether the People have proved the guilt of the defendant on trial.”
B. Relevant Authority
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) However, “[t]he judge is required to instruct only on general principles that are necessary for the jury’s understanding of the case; the judge need not instruct, without request, on specific points or special theories that might be applicable to the particular case.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 610, p. 869; see also People v. Wade (1959) 53 Cal.2d 322, 334, disapproved on another point in People v. Carpenter (1997) 15 Cal.4th 312, 381.)
C. CALJIC No. 2.11.5 Not Required
For several reasons, CALJIC No. 2.11.5 was not appropriate in the instant case. First, it was possible that Charles, who testified for the prosecution, was involved in the shooting to some degree. A court should “not use [CALJIC No. 2.11.5] if the other person is a witness for either the prosecution or the defense.” (Use Note to CALJIC No. 2.11.5 (Spring 2009 ed.), p. 46.) “When an accomplice... testifies, the instruction might suggest to the jury that it need not consider the factors it otherwise would employ to weigh the credibility of these witnesses, such as the circumstance that the witness has been granted immunity from prosecution in return for his or her testimony. (See People v. Williams (1997) 16 Cal.4th 153, 226–227[]; People v. Price (1991) 1 Cal.4th 324, 445–446[].)” (People v. Cornwell (2005) 37 Cal.4th 50, 88, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.) Charles’s erratic testimony on the stand, the inconsistencies between what he told detectives during his interview and his trial testimony, his fingerprints on the Focus, and the evidence presented regarding his phone calls around the time of the shooting certainly revealed he had some involvement. Moreover, Charles initially invoked the Fifth Amendment and was granted use immunity for the contents of his testimony. Under these circumstances, the instruction may have confused the jury. Moreover, it has repeatedly been held that it is error to read CALJIC No. 2.11.5 unless the jury instructions regarding accomplices are also given, and they were not in this case. (See, e.g., People v. Hernandez (2003) 30 Cal.4th 835, 875; People v. Lawley (2002) 27 Cal.4th 102, 162–163; People v. Cain (1995) 10 Cal.4th 1, 35.) Certainly, the issue of Charles’s involvement negated any alleged obligation to read the instruction sua sponte. The instruction could not have been given unless modified, and it was incumbent upon defense counsel to request a modified instruction. (People v. Andrews (1989) 49 Cal.3d 200, 218; People v. Daya (1994) 29 Cal.App.4th 697, 714; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439.)
Finally, the purpose of CALJIC No. 2.11.5 “‘“is to discourage the jury from irrelevant speculation about the prosecution’s reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators. [Citation.]”’” (People v. Lawley, supra, 27 Cal.4th at p. 162.) In this case, appellant was tried with a codefendant, and the prosecutor elicited that the whereabouts of Davis and Biscuit, two others who were mentioned as possible coperpetrators, were unknown. Therefore, there was little possibility of speculation by the jury as to the reason for their absence at trial. We conclude appellant’s claim is without merit.
VII. Cumulative Error
We find no merit in appellant’s cumulative error argument. Our review of the record assures us that appellant received due process and a fair trial. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006.) There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal of appellant’s convictions. As the California Supreme Court has stated, “A defendant is entitled to a fair trial, not a perfect one.” (People v. Mincey (1992) 2 Cal.4th 408, 454.)
DISPOSITION
The criminal street gang findings pursuant to section 186.22, subdivision (b) are reversed, and the firearm use enhancement under subdivisions (d) and (e)(1) of section 12022.53 is reversed. In all other respects, the judgments of conviction are affirmed. The sentences imposed are vacated and the case is remanded for resentencing. The superior court is directed to prepare a new abstract of judgment after sentencing and forward it to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., DOI TODD, J.