Opinion
F069987
04-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEE BAKER, Defendant and Appellant.
Maribeth Halloran, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF150965B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Maribeth Halloran, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Jimmy Lee Baker of first degree special circumstances murder (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(22); count 8); shooting at an inhabited vehicle (§ 246; count 9); carrying a loaded firearm in a public place as a criminal street gang member (§ 25850, subd. (c)(3); count 12); participating in a criminal street gang (§ 186.22, subd. (a); count 13); and conspiracy to commit murder (§ 182, subd. (a)(1); count 14). The jury found true gang enhancements and various firearm enhancements. He received a life sentence without eligibility for parole (LWOP) for the murder, enhanced by 25 years to life for the firearm, plus a consecutive term of 27 years to life for shooting at the occupied vehicle.
All future statutory references are to the Penal Code unless otherwise noted.
Appellant's trial was severed from his three codefendants, Wendall Keith Allen, Dvontae Larome Pink and Trevonte Shevelle Williams. On appeal, appellant contends his Sixth Amendment confrontation rights were violated when Williams's recorded statements were played for the jury. He also claims insufficient evidence supports his conviction for shooting at an occupied vehicle and the trial court improperly failed to instruct on a lesser included offense for that count. We reject these arguments.
The parties agree, as do we, that the jury improperly heard about appellant's booking statement regarding gang membership. The parties also agree, as do we, that certain instructional errors occurred. Based on this record, however, we find no prejudice from these errors and we reject appellant's claim of cumulative prejudice. We affirm.
In his reply brief, appellant requests that we strike and disregard statements appearing in respondent's statement of facts which appear without a citation to the volume and page number of the record as required under California Rules of Court, rules 8.204(a)(1)(C) and 8.360(a). We take no action upon appellant's request because our opinion is based on our independent review of the factual record.
BACKGROUND
I. Relevant Facts From The Prosecution's Case.
A. The February 10 , 2013 murder .
On February 10, 2013, Floyd Beam, Jr. was shot near Roy's Market on Dr. Martin Luther King Jr. Boulevard in Bakersfield, California. Beam was associated with the Eastside Crips street gang. He was shot approximately 11 times, including multiple shots to his torso. A majority of the shots passed through his body.
The testifying medical examiner believed the bullets entered Beam's body generally from back to front. However, another physician had performed Beam's autopsy, and the testifying medical examiner based his opinions on the autopsy report and photographs. The two physicians disagreed on how to interpret Beam's wounds. The examiner's report opined the shots entered Beam's body "front to back." Although it was not certain, Beam's wounds were consistent with a hypothesis two shooters were involved. He died from the multiple gunshots.
A 911 call was placed at approximately 6:19 p.m. The caller said the subjects were Black and they wore black hoodies. One subject was described as "light skinned" and the other was "dark skinned." The two subjects ran to an alley and got into a vehicle.
Law enforcement located 11 shell casings near the shooting scene, which consisted of five .45-caliber shells and six .380-caliber shells. A .45-caliber gun is unable to fire a .380-caliber cartridge, and vice versa. The shell casings generally followed a path that began near the store's front doors and continued to the location of Beam's body, with the final casings intermingled with personal belongings on the ground.
B. Two witnesses saw Beam's shooting.
N.L., a minor, was riding his bicycle near Roy's Market on the night in question and he heard gunshots. He saw two males running. The men ran to a parked vehicle that was light colored and looked like an SUV. That night, he told police the two men were African-American, they wore dark clothes, and they had beanies on their heads. He said the SUV's driver was a Black male. However, the day after the shooting, N.L. told a detective he did not know the race of the males who got into the SUV. At trial, he told the jury he was unable to identify the males' races because it had been dark that night.
Theresa Ellis drove to Roy's Market with her husband on the night of the shooting. Ellis knew Beam. Ellis and her husband parked their car near the store. At the market, she saw two African-American males walking with black hoodies over their heads. One of the males was "dark" and "one was light." Beam was walking behind them. The two males pulled out guns, turned around, and shot Beam while he was walking towards them. The males said "south" as they fired. She said Beam "was in front" of her vehicle when the shooting occurred, and the shooters were "up by the store." As the males shot at Beam, he fell and rolled into the street. As Beam fell, the males walked up to him, stood over him, and shot at him some more. They fled to a light-colored SUV and drove away. After the shooting, police showed Ellis photographic lineups of suspects, but she was unable to identify anyone. She was unable to identify anyone in court as a shooter.
C. Ellis's vehicle was struck by a bullet.
After the shooting, Ellis's vehicle had a hole just underneath the front license plate. The air conditioning worked before the shooting but it was broken afterwards. Police determined a bullet had lodged either in the radiator or farther in the vehicle. Police could not retrieve it.
At trial, the prosecutor asked Ellis to look at People's exhibit 14, which was a photograph taken from the "west curbline of Dr. Martin Luther King, Jr., Boulevard, towards the front doors of Roy's Market, facing north." Evidence markers were in the photograph. The prosecutor asked Ellis to examine a particular evidence marker, number 17, depicted in the photo. Ellis agreed the shooters had been standing by that evidence marker. She agreed that if they were shooting at Beam, her vehicle would have been directly in the background.
A crime lab technician testified she arrived at the shooting scene after emergency personnel had left, and she estimated that 10 to 15 police officers were still present throughout the crime scene. She took pictures of the scene, including the shell casings. She agreed it was possible people had inadvertently disturbed the casings. The lab technician took pictures of Ellis's vehicle where she found it along the west curb line. She did not know how long the vehicle had been there.
A trajectory rod was inserted into the hole in Ellis's vehicle. Based on the angle of the rod, it appeared that the shot was flat or level. The crime technician believed the shot that struck Ellis's vehicle was fired "from a lower vantage point or pretty far away." No ricochet marks or bullet strikes were found at the scene, but the crime lab technician testified such marks can be hard to find on asphalt.
A police officer who responded to the scene testified he was familiar with bullet ricochets from target shooting, and he had investigated shootings where the bullet passed through a victim and struck something else. The officer was shown People's exhibit 60, which was a photograph showing Ellis's vehicle and a "pile of clothing" in the street next to the sidewalk. The officer was asked to circle the area of the clothing with a red marker, draw a line from the vehicle to that circle, and then draw an oval connecting evidence marker 17 to marker seven. The officer was asked the likelihood of the vehicle in exhibit 60 being struck by a ricochet if a subject was between evidence markers 17 and seven, shooting at a target somewhere in the area of the red circle. Over a defense objection, the officer was allowed to testify there was a likelihood the vehicle would be struck by a projectile.
During the trial, the jury was taken out to view the scene of Beam's shooting near Roy's Market.
D. Police search appellant's residence.
On the night of Beam's shooting, at approximately 11:00 p.m., police searched appellant's residence while he was not present. They seized a sweatshirt that said "Charles Bell aka C-Macc" with the dates March 3, 1981, through January 27, 2013. A second sweatshirt had "Lady J-Bake" on it. A final sweatshirt was found with "SS J-Bake" on it.
E. Appellant's first police interview.
Police interviewed appellant approximately two days after Beam's shooting. The interview was recorded and played for the jury. Appellant said he had attended a family barbeque on the night of Beam's shooting. He arrived when it was still light out and he did not leave until the next morning. He denied being near the area of Beam's shooting, and he denied being a gang member. He denied that his tattoos were gang related.
At trial, the jury learned that the location of the barbeque which appellant said he attended was approximately three and a half miles from Roy's Market. It was within 10 minutes driving time.
F. A police informant records appellant.
Ryan Kroeker was the lead police detective for Beam's murder. Approximately three or four months after the shooting, he was contacted by Devontay Garrett, who agreed to act as a confidential informant in this case. Prior to that time, Kroeker had been in contact with Garrett in another murder case involving Charles Bell, who was known as C-Macc. Charles was shot on January 27, 2013, approximately two weeks before Beam's shooting. Charles had been a prominent member of the Country Boy Crips (CBC) street gang. Garrett had told a friend he believed he was a suspect in Charles's murder and police were trying to implicate him. He agreed to work with police. He received occasional cash payments from the police for his assistance. He told police that Charles's shooter came from the Eastside Crip gang. As of appellant's trial, police had not arrested anyone for Charles's murder.
While testifying, Garrett told the jury he had never given Kroeker the identity of the shooters involved in Charles's murder. Kroeker, however, testified Garrett had told him the identity of those shooters. Kroeker agreed that Garrett lied at trial in this regard.
At the time of his trial testimony, Garrett was 27 years old. He had prior convictions and was last on parole in February 2013. He had been a member of CBC since he was approximately 11 years old, but he was no longer a member. Garrett testified in appellant's trial under a grant of immunity.
On August 6, 2013, Garrett called Kroeker and said he was hosting a barbeque and appellant was present at his residence. Codefendant Trevonte Williams, a CBC member known as Spod or Spody, was also present. Kroeker drove to Garrett's location, secretly met Garrett outside, and gave him a special shirt to wear. The shirt had a sewn-in microphone and pinhole-sized camera. Garrett returned inside and recorded approximately 45 minutes of video. Kroeker later reviewed the video, which he said became the basis to arrest appellant for Beam's murder.
Garrett's recording from the August 6, 2013, barbeque was broken into shorter clips, which were played for the jury as People's exhibits 64, 65 and 66. At trial, Garrett said he had known appellant for a very long time, and he identified him in court. Garrett testified he would recognize appellant's voice on the video. According to Garrett, appellant was a member of CBC. Garrett also knew codefendant Dvontae Pink, who was a CBC member known as Fido.
1. People's exhibit 64.
People's exhibit 64 showed approximately eight and a half minutes of the recording. Garrett identified appellant in the video for the jury. He testified Williams was also in the video. Garrett told the jury this video showed him talking to appellant about Beam's shooting. At one point in the recording, Garrett said to appellant "you got him" and Garrett wanted to know how it was done. Appellant did not directly respond. A short time later, appellant mentioned the "C-Macc function" and a girl said, "I want to get one for Macc." In the video, Garrett indicated he was at the party and the girl was crying. A short time later, appellant said he "Snatch[ed] up Fido" (Pink), telling him to "act like your leg [is] alright." Later, appellant said they crossed a street and confronted a person, asking where he was from. The person said, "you Jimmy Baker" and "you my cousin ...." Appellant said it was "JB" and "I remember you, you Orlando's little brother." Later in the recording, appellant referenced "Gorill" and Roy's. At the end of the video, appellant made a motion with his hand, and made sounds like someone was firing a handgun. Garrett told the jury that appellant was describing Beam's shooting.
Garrett said codefendant Wendall Allen was a CBC member known as Baby Stone. He testified "Gorrill" was a street a few blocks from Roy's Market, and the market was "a little hangout spot" for Eastside gang members. People were upset that Charles had been shot, and they thought Eastside had done it. Garrett agreed he was at the party for C-Macc, but he could not recall if he was there all night. He recalled seeing appellant at that party, but he could not recall seeing Pink there. In reference to appellant telling Pink in the recording to "act like your leg [is] alright[,]" Garrett said Pink walked with a limp because he had been shot.
2. People's exhibit 65.
People's exhibit 65 showed approximately 90 seconds of the recording. At trial, Garrett agreed this showed him talking with appellant about appellant and Pink (Fido) "doing the shooting." On the recording, Garrett is heard saying "you did your thing that night, you got your man." He asked if appellant gave "him ... two to the face?" Appellant responded but it is unintelligible. Garrett asked how many "you give 'em to the body?" Appellant said something about "the rest" and "fifteen of 'em." Later, appellant stated, "And we banging on them, nigga east."
3. People's exhibit 66 and codefendant Williams's statements.
People's exhibit 66 showed another approximate 90 seconds of Garrett's recording. At trial, Garrett said he recognized Williams in this clip. Williams was talking about a shooting, but Garrett could not recall which one. In the recording, Williams indicated he was in a vehicle with Pink and Allen (Baby Stone). They wanted Pink to drive, but he did not know how. Williams wanted to "bust" and was going to hop out. Williams said, "I'm trying to hop out and get a nigga." He said, "That nigga with the royal blue shirt (unintelligible) the window. And Baby Stone supposed to hit that nigga right here, boom." At trial, Garrett explained that Williams's statement could "mean anything" from an assault, to a shooting, or some kind of violent act. He testified if a person wore a "royal blue shirt at Roy's Market," he would assume the person was an Eastside Crip.
Garrett told the jury that CBC did not get along with the Eastside and Westside Crips. If a CBC member was killed by an Eastside Crip, retaliation would be the expected response to avoid looking weak. The more violent a gang member acts, the more status the member has in the gang. CBC members do not allow Eastside Crip members into their territory unless the rival member receives a "pass" to go unharmed.
Garrett said he knew all members of CBC "by name and sight." He estimated membership at 400 to 500. CBC members will talk amongst themselves about shootings they have done, but that does not increase their status within the gang; the act of violence increases the status. He claimed CBC members would not commit crimes with non-gang members. He said the terms "Southside" and "South" referred to "Country." Garrett admitted gang members will brag about things they have not done, including shootings, but he claimed that would not increase status because "the truth will reveal itself, though."
G. Kroeker interviews appellant.
After Garrett made the recording, Kroeker interviewed appellant at the police station. Appellant's second police interview was recorded and played for the jury. Appellant denied involvement in Beam's shooting. He said he was at a family barbeque that night, arriving when it was still light out and he spent the night there. He said he left the following day, February 11, 2013, at around 10:00 a.m. When he arrived home, he learned that police had searched his residence. He denied being involved in gangs. He denied remembering anybody driving a "newer SUV" that was "whitish" in color. Appellant said Beam was his cousin by marriage and he had known him since they were kids. He said even if "bangin'" occurred they would "go on about our business. I always used to see him at my baby-momma house, Star."
Appellant said he knew a person named Orlando who had a brother named Josh Burns. Appellant denied talking to his friends about participating in Beam's murder. He was told a video existed which showed him talking about it, but he continued to deny any involvement. After being shown unknown portions of Garrett's video, appellant admitted he was in the video wearing a white shirt, but he denied talking about a murder, claiming he was talking about something else. Kroeker told appellant the video showed him talking about how he and Pink (Fido) "walked up to the market" and saw a "young scrappy little fellow" walking in front of Roy's Market. Kroeker said appellant and Pink started shooting him. Appellant continued to deny talking about a murder, saying he was talking about some "bullshit." When pressed, he would not explain what he was talking about if it was not Beam's shooting. Another portion of Garrett's video was played.
When asked for an explanation, appellant said he was talking "about what somebody else was doin'." He said he had "lied" on the video but he had seen police "workin' deals" and he was willing to give "real talk" to the police. When asked why he lied, appellant said some "older homies" were "fuckin'" with him. He said he talked about the murder "[t]o keep it real" and he agreed he was talking about Beam's shooting. He continued to deny he was at Beam's shooting or killed anyone. He said it was common for people to talk about shootings they did not commit.
H. Kroeker interviews witnesses Adrienna Hull and Jessie Bell.
Approximately 14 months after Beam's shooting, Kroeker separately interviewed Adrienna Hull and Jessie Bell, who were potential witnesses. Jessie was incarcerated in prison at the time. Kroeker testified Jessie was affiliated with the Eastside Crips. Jessie's interview with Kroeker was recorded, and the audio was played for the jury.
Jessie said he was walking with Adrienna Hull to a park on the night of Beam's shooting. Two males approached them and asked "where you from?" Jessie felt scared because he was "the enemy" and he thought they would shoot him. Both males wore all black. Jessie recognized appellant as one of the two males, telling Kroeker it was "Jimmy Baker" and he knew him "good." Jessie called appellant "cousin." He was positive he saw appellant on the night of Beam's shooting. He said both appellant and the other male had guns. Jessie walked away and the two males ran to a "suburban type" truck. He identified Pink as the light-skinned male. He said he later confronted Pink while they were in custody together, accusing him of killing Beam. Pink had claimed he had nothing to do with it.
During the interview with Kroeker, Jessie identified appellant from a single photograph. After Jessie mentioned Pink's name, Kroeker showed him a photographic lineup which included a picture of Pink, and Jessie confirmed he was the same person. Jessie agreed to testify in court about what he saw that night. He said his older brother was "Orlando Bailey." He had another brother named Josh Burns. At trial, Kroeker identified appellant as the person whom Jessie had identified as "Jimmy Baker" during the interview.
When Kroeker interviewed Hull, he showed her several photographic lineups of possible suspects. One photographic lineup consisted of African-American men with dark complexions and another lineup had light-complected African-American men. She was unable to identify anyone from the first lineup, which contained a photograph of appellant. She identified Pink in another lineup as the light-skinned person she saw with Jessie on the night of Beam's shooting.
At trial, Kroeker identified Pink for the jury, who was present in court wearing a county jumpsuit.
I. Hull's trial testimony.
At trial, Hull testified she walked with Jessie, whom she referred to as JB, on the night of Beam's shooting to a park near downtown Bakersfield. While walking, they encountered two African-American males. One of the males was dark skinned and the other was light skinned. One was wearing a black hoodie. The dark skinned male asked Jessie where he was from. Hull felt scared during the encounter over a concern the males were armed, although she never saw a weapon. Police asked her to view some photographic lineups with dark- and light-skinned individuals. She identified the light-skinned person in a lineup as the person she and Jessie encountered that night. She could not identify anybody in court who looked like the other person.
J. Jessie's trial testimony.
Jessie testified he was incarcerated for burglary with a gang enhancement, but he denied being a gang member. He told the jury he knew Beam, who was a relative through his mother. He said he was walking with Hull on the night Beam was killed. They were going to a park. He said they ran into a "couple of [Hull's] friends" while walking. At trial, Jessie denied knowing appellant. When impeached about his previous statements to Kroeker, he testified he had lied to Kroeker, explaining he did not know why. He agreed he has a brother named Orlando. He agreed he saw Beam's body lying in front of Roy's Market, which was the same night he walked with Hull.
On cross-examination, Jessie agreed he would have told police if he had seen the individuals who shot Beam. He agreed he never contacted law enforcement about Beam's shooting. He claimed to be telling the truth in court but agreed he lied to police during his interview.
On Kroeker's cross-examination, he confirmed that he was not aware of either Jessie or Hull coming forward voluntarily regarding information about Beam's shooting.
K. Testimony from the prosecution's gang expert.
The prosecution's gang expert was an officer in the gang unit. He explained the history of various gangs found in Kern County, including CBC. He reviewed CBC's rivalries and alliances, their territories, signs, typical tattoos, graffiti, nicknames and colors. CBC associates with "[p]owder blue" and Eastside Crips with "a royal blue" or "a darker blue." The primary activities of CBC included shootings, illegal firearm possession, robbery, murder, narcotics possession, assaults, criminal threats, and auto theft. Roy's Market was located in part of Eastside Crip's territory, and members of that gang were often there.
The expert opined that Williams, Allen and Pink were all CBC members. The expert explained the types of gang tattoos worn by CBC members, and he showed pictures of those tattoos to the jury. Appellant's tattoos were shown to the jury, which the gang expert believed were gang related. Appellant has two S's on each arm, a Superman logo on his neck, and a smaller Superman logo on the side of his neck. The expert opined the SS's showed affiliation with "the Country" or Southside. A Superman logo was meant to symbolize South, and was used as a symbol of the gang.
Prior to testifying, the gang expert reviewed information about appellant, including booking records and street checks. During a booking procedure, appellant claimed to be a CBC member. During a street check in 2011, appellant stated he had been at a known CBC and Westside Crip hangout. Appellant was found with a sweatshirt with "SS J-Bake" on it, which the expert opined was significant because appellant used the moniker "J-Bake" and "SS" was a common symbol used for "Southside." In 2013, appellant was contacted in the company of a known CBC member. He was involved in an incident with another CBC member where they were alleged to have threatened a victim while yelling out "Cottonwood." In 2006, appellant was stopped and found in possession of a loaded firearm. He told officers he had purchased it for protection from "Blood" gang members. He later pled to a misdemeanor of carrying a concealed weapon and misdemeanor gang participation.
The gang expert testified Beam was an admitted member of the Eastside Crips, but his status in the gang did not seem significant. The expert opined it would be gang related if two active members of CBC did a "walkup shooting" of an associate of Eastside Crips at Roy's Market. Yelling "South" during the incident would show affiliation with CBC.
The expert testified Jessie was a member of Eastside Crips. He opined the term "Where you from?" has a distinct meaning for gang members, usually signifying a challenge.
L. The shooting on February 6 , 2013 .
In addition to Beam's murder on February 10, 2013, the prosecution introduced evidence establishing two other shootings. On February 6, 2013, a drive-by shooting occurred at Roy's Market. Police collected eight nine-millimeter and six .45-caliber shell casings in and near the parking lot. An additional six nine-millimeter shell casings were discovered in front of a neighboring apartment.
On the day of the drive-by shooting at Roy's Market, police received a call regarding a black vehicle from which "five black males" had exited in the area of Roy's Market. About an eighth of a mile from Roy's Market, police located an abandoned four-door black 2012 Buick LaCrosse, which had been reported stolen. The Buick was still idling with its windows rolled down.
The shell casings were processed for DNA, and the Buick was processed for fingerprints and DNA. Neither appellant's nor his codefendants' fingerprints were discovered in the Buick. Appellant was excluded from being a DNA contributor to any of the swabbed samples taken from the Buick, while Williams could not be excluded and results were inconclusive regarding Pink and Allen. No DNA matches were found on the shell casings.
Laboratory analysis indicated three different guns fired the various shells discovered around Roy's Market on February 6, 2013. It was determined that the same gun fired the .45-caliber shells in this case as well as in Beam's shooting. On cross-examination, the criminalist who analyzed these various shells agreed he did not have the actual firearms from these cases to compare to the found casings. He agreed examiners could disagree regarding particular marks on shell casings, and there was a "certain amount of subjectivity" to the process.
M. The shooting on March 3 , 2013 .
On March 3, 2013, Latoya Gilmore's family had a barbeque in the backyard of their house in Bakersfield, which was at 420 Whitlock near Roy's Market. Around 8:30 p.m., as the barbeque concluded, two young African-American men came by the back gate. It was dark out, but Gilmore could see the men from lights that shone from the house. One male was "light-skinned" and the other was "a dark-skinned man." They both wore black clothes. The darker male asked if the family had any marijuana. Without any warning, shots were fired into the backyard. The father of Gilmore's children, Daval Eason, received bullet wounds to both legs. The men fled.
In the early morning hours of March 4, 2013, police saw Pink and another individual out in the streets. Both were wearing black hooded sweatshirts. Police showed Gilmore a photographic lineup of possible suspects. She identified Pink (Fido) as the light-skinned male and the shooter. Police authored a warrant for Pink's arrest.
Police located and collected six .45-caliber shell casings at the scene. The same gun had fired all six shells. However, this gun was different from the .45-caliber gun used on February 6 and 10, 2013.
II. Relevant Defense Evidence.
Myneisha Newton had a barbeque at her residence on February 10, 2013, to celebrate the life of her cousin, Charles Bell. Appellant was in a relationship with Newton's sister. He attended the barbeque, arriving at 3:00 o'clock and staying the entire night because he passed out drunk. Police never contacted Newton.
Terra Banks was in a relationship with appellant. Banks testified she attended a barbeque with appellant at her sister's residence on the night Beam was shot. The barbeque was to honor Charles. They arrived between 2:30 p.m. and 3:00 p.m. Neither of them left her sister's residence that evening. Appellant passed out after becoming intoxicated. They stayed at Newton's residence the entire night. The following day, they returned home and found that their residence had been broken into.
Whitney Earnest said she grew up with Garrett, and he told her the police had tried to implicate him in Charles's shooting. He said he was assisting the police. He told her Kroeker had arrested him for possession of a .38-caliber gun and the police were pressing him to "tell on somebody." Earnest attended the barbeque at Newton's residence on the night Beam was shot. She said appellant attended the barbeque and she did not see him leave. According to Earnest, appellant passed out around 7:00 p.m. or 7:30 p.m. and "we were all joking about it." She knew Pink, also known as Little Fido. She said Pink was not at the barbeque.
Stardayia Richard testified appellant is the father of her children, and Beam was her cousin. She recalled seeing appellant and Beam together about five years before at a birthday party. The day after Beam's funeral, appellant did not know her cousin was the man who had been shot. He learned later it was Beam.
DISCUSSION
I. The Admission Of Williams's Recorded Statements Was Harmless.
Appellant contends the trial court violated the Sixth Amendment when it allowed the jury to hear codefendant Williams's recorded statements to Garrett. He further argues these statements were inadmissible hearsay. He seeks reversal of all counts.
A. Standard of review.
A federal constitutional error is harmless under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), when the reviewing court determines beyond a reasonable doubt the error did not contribute to the verdict. (People v. Aranda (2012) 55 Cal.4th 342, 367.) "To say that an error did not 'contribute' to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous." (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) Rather, an error did not contribute to the verdict when the record reveals the error was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt, at p. 403.)
B. Background.
For count 14, the information alleged that on or about and between February 6, 2013, and March 3, 2013, appellant, Allen, Williams, and Pink willfully and unlawfully conspired together to commit murder. Seven overt acts were alleged.
Prior to trial, the prosecution moved to admit into evidence Williams's recorded statements to Garrett. After hearing argument, the trial court granted the use of the recording, finding significant that Williams's statements did not implicate Baker. The court also noted Williams's statements were relevant to the charged conspiracy.
People's exhibit 66 contained Williams's recorded statements, which lasted approximately 90 seconds. In the recording, Williams indicated he was in a vehicle with Pink and Allen (Baby Stone). They wanted Pink to drive, but he did not know how. Williams wanted to "bust" and was going to hop out. Williams said, "I'm trying to hop out and get a nigga." He said, "That nigga with the royal blue shirt (unintelligible) the window. And Baby Stone supposed to hit that nigga right here, boom." At trial, Garrett said Williams was talking about a shooting, but Garrett could not recall which one.
The jury found appellant guilty in count 14 of conspiracy to commit murder as charged in the information. The jury found true the following six overt acts alleged in the information:
(1) Williams traveled in an automobile on Martin Luther King Boulevard near Roy's Market in Bakersfield, California on February 6, 2013;
(2) Pink was in possession of a handgun on February 6, 2013;
(3) Allen left the area of Roy's Market in an automobile after the shooting on February 6, 2013;
(4) Appellant was walking on Martin Luther King Boulevard near Roy's Market in Bakersfield, California on February 10, 2013;
(5) Appellant and/or Pink spoke to Beam on Martin Luther King Boulevard on February 10, 2013; and
(6) Pink and an unknown person were present at 420 Whitlock Street on March 3, 2013.
The jury found not true a seventh and final alleged overt act: that Pink spoke to Daval Eason on March 3, 2013.
C. Analysis.
The parties dispute whether Williams's recorded statements to Garrett were testimonial or not under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny. Appellant argues the primary purpose of recording Williams's statements was to obtain evidence relevant to a future prosecution. He asserts Garrett acted as a police agent and performed a de facto police interrogation. He maintains Williams was motivated to exaggerate, making these statements not trustworthy. He contends the trial court applied an erroneous standard in determining these statements were not testimonial, and admission of this evidence rendered his trial "so arbitrary and fundamentally unfair" as to violate federal due process.
In contrast, respondent generally argues these statements were not testimonial. Respondent further contends no due process violation occurred because this evidence was relevant and properly admitted.
The high court in Ohio v. Clark (2015) 576 U.S. ___ held that "a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial." (Id. at p. ___ .) In Michigan v. Bryant (2011) 562 U.S. 344, the high court held that the question is whether the primary purpose of the conversation was to create an out-of-court substitute for trial testimony. (Id. at p. 358.)
Rather than resolve this complex dispute, our Supreme Court has held that a constitutional challenge under Crawford, supra, 541 U.S. 36, can be resolved without analyzing the actual constitutional issue if any assumed error was harmless beyond a reasonable doubt. (People v. Jennings (2010) 50 Cal.4th 616, 652; People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016.) This record presents such a situation.
Although an inference exists that Williams was talking about Beam's shooting, it is unclear when the incident occurred which Williams references. Williams's brief statements do not establish appellant's liability for any crime. Williams neither mentioned appellant nor linked him to any shooting. These statements did not implicate appellant as part of any conspiracy. This evidence does not relate to the six overt acts the jury found true regarding the charged conspiracy.
We find unpersuasive appellant's argument that admission of this evidence "set a tone that undermined the jury's ability to decide issues" such as what appellant "actually said" to Garrett and the credibility of his alibi defense. We further disagree with appellant's contentions that precluding this evidence would have made it "more difficult" for the jury to determine appellant was an active participant in a criminal street gang, or that he had the specific intent to promote criminal conduct by gang members. Finally, we reject appellant's suggestion that his ability to confront Williams would have shown "appellant was innocent of the conspiracy charge." Williams's recorded statements were unimportant when compared with the remaining record.
Two shooters killed Beam, and Beam was associated with the Eastside Crips. His shooting occurred approximately two weeks after Charles (C-Macc) was killed. Garrett testified at trial that people were upset about Charles's murder, and they thought Eastside had done it. Beam's shooters both wore black hoodies over their heads and they yelled "south" as they fired, which was a gang reference to CBC. One shooter was "dark" skinned and "one was light." The shooters fled in an SUV.
Garrett testified he recorded appellant making statements about Beam's murder. During appellant's recorded statements, he described being at the memorial party for Charles, and a girl was crying and saying she wanted "to get one for Macc." Appellant mentioned crossing a street and encountering JB, who called appellant by name. Appellant said he remembered JB, who was "Orlando's little brother." At the end of People's exhibit 64, appellant simulated firing a gun, which Garrett said was a description of Beam's shooting. In People's exhibit 65, Garrett said, "you did your thing that night, you got your man." He asked if appellant gave "him ... two to the face?" Appellant responded but it is unintelligible. Garrett asked how many "you give 'em to the body?" Appellant said something about "the rest" and "fifteen of 'em." Later, appellant stated, "And we banging on them, nigga east."
During his police interview, appellant admitted his recorded statements to Garrett were about Beam's shooting, but he claimed it was "bullshit" and he lied to "keep it real" because "older homies" were "fuckin'" with him. He said he had seen police "workin' deals" and he was willing to give "real talk" to the police.
Jessie, known as JB, has an older brother named Orlando. Jessie told Kroeker during his police interview that he was with Hull when they encountered appellant and Pink on the streets on the night of Beam's shooting. Both appellant and Pink wore all black and both had guns. They ran to a "suburban type" truck. Hull identified Pink in a photographic lineup as the light-skinned male she saw that night with JB.
This record reveals that the admission of Williams's statements was harmless because it is beyond a reasonable doubt this evidence did not contribute to the ensuing verdicts. Any presumed error regarding the admission of Williams's recorded statements was not prejudicial. Accordingly, this claim fails.
II. The Admission Of Appellant's Booking Statement Was Harmless.
At trial, the prosecution's gang expert testified that appellant claimed membership in CBC during a jail booking interview. The parties agree, as do we, that this violated appellant's Fifth Amendment rights as defined under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). After the trial in this matter, our Supreme Court issued People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde). Elizalde holds, while it is permissible for jail officials to ask arrestees questions about gang affiliation during the booking process, such answers are inadmissible in a subsequent trial in the absence of Miranda admonitions. (Id. at p. 541.)
Here, there is no evidence appellant received Miranda warnings prior to his answers about gang membership during the booking process. Accordingly, this evidence was inadmissible and we must examine prejudice under the Chapman standard. (Elizalde, supra, 61 Cal.4th at p. 542.)
Appellant contends he was prejudiced because he denied being a gang member and his admission during the booking process "constituted the only evidence" he claimed to be a CBC member. He asserts the jury would have given "great weight" to his admission. He argues the remaining gang evidence was circumstantial and unreliable. We disagree.
The prosecution's gang expert explained and showed the jury the types of gang tattoos worn by CBC members. Appellant has multiple CBC-related tattoos on his body. Garrett was an admitted CBC associate. He testified he knew all members of CBC "by name and sight." He told the jury that appellant was a CBC member, along with Williams. The jury watched video clips in which appellant attended a barbeque with known CBC members and they discussed criminal activity.
After Beam's shooting, police searched appellant's apartment and uncovered a sweatshirt with Charles's name on it. Charles was a known member of CBC. Another sweatshirt in his apartment had "SS J-Bake" on it. The prosecution's gang expert opined that "SS" was a gang term for Southside and "J-Bake" was appellant's gang moniker.
In 2013, appellant was contacted in the company of a known CBC member. He was involved in an incident with another CBC member where they were alleged to have threatened a victim. In 2006, appellant was stopped and found in possession of a loaded firearm. He told officers he had purchased it for protection from "Blood" gang members.
Based on this record, overwhelming evidence established appellant's gang affiliation with CBC despite his claims to the contrary during his police interviews. The prosecution has established beyond a reasonable doubt that the admission of appellant's booking statement did not contribute to the verdicts. Accordingly, this claim fails.
III. Sufficient Evidence Supports The Conviction In Count 9.
Appellant asserts his conviction for violating section 246, shooting at an occupied vehicle, was insufficient as a matter of law. As part of his insufficiency claim, he argues instructional error occurred because the court did not instruct on aiding and abetting, but the prosecutor relied on a theory of vicarious liability to obtain this conviction. He maintains his conviction in count 9 should be reversed.
A. Background.
1. Relevant jury instructions.
With CALCRIM No. 200, the jury was told to follow the law as given by the trial court. "If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
With CALCRIM No. 965, the jury was instructed regarding count 9. To find appellant guilty of this crime, the prosecution had to prove that (1) appellant "deliberately and maliciously shot a firearm"; and (2) he "shot the firearm at an occupied motor vehicle." They jury was told that an act is done willfully when a person "does it willingly or on purpose." A person "acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else."
Regarding count 9, the information did not allege a gang-related firearm enhancement pursuant to section 12022.53, subdivision (d). However, with CALCRIM No. 1402, the jurors were instructed that this enhancement applied, in part, to count 9. They were told if appellant was found guilty of the crime charged, and it was found he committed this crime under circumstances establishing the gang enhancement, the jury was to decide whether "one of the principals personally and intentionally discharged a firearm, during that crime, and caused death." A principal was defined as one who "directly commits the crime" or one who "aids and abets someone else who commits the crime." The prosecution had the burden of proving this allegation beyond a reasonable doubt.
The record shows that CALCRIM Nos. 400, 401 and 417 were withdrawn. Instructions were not given regarding aiding and abetting, and liability for coconspirators' acts.
2. Relevant closing arguments.
During closing arguments, the prosecutor referenced the testimony from the medical examiner in contending Beam was shot in the back. He reviewed the photos and argued the shell casings progressed from the doorway of Roy's Market out into the street where Ellis's vehicle was struck.
The prosecutor said it was unknown whether appellant or Pink fired the shot that struck Ellis's vehicle, but one of them did it. The prosecutor said the gang-related gun enhancement "makes a difference." He contended "if it's a gang-related shooting, then either one are liable, guilty, if the other guy was the one who fired the shot."
During rebuttal arguments, the prosecutor referred to the medical examiner's testimony that the shots entered Beam's back. The prosecutor argued it made "perfect sense" that one of those projectiles likely hit Ellis's vehicle. The jury was asked to read the instructions for count 9, contending it was a "willful and malicious act. Someone's firing while there's a car in the background. They don't have to be aiming directly at that car. It's the act itself that's malicious, firing in that direction." The prosecutor asked the jury to look at the diagrams the testifying examiner prepared, which he contended were "consistent with the evidence at the scene."
B. Standard of review.
For an appeal challenging the sufficiency of evidence, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt based on "'evidence that is reasonable, credible, and of solid value ....'" (People v. Jones (2013) 57 Cal.4th 899, 960.) In doing this review, we are not required to ask whether we believe the trial evidence established guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Rather, the issue is whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence favorably for the prosecution. (Ibid.)
C. Analysis.
The parties dispute whether sufficient evidence exists to support the conviction in count 9. Appellant argues it is unknown who fired the bullet that struck Ellis's vehicle, and the evidence was in conflict whether Beam was shot from front to back or vice versa. He maintains this impacts "whether or not [Ellis's vehicle] was in the line of fire or in such close proximity to violate section 246." He contends it is possible Ellis's vehicle was moved after the shooting before it was photographed and he questions whether the pile of clothing "was a faithful representation where Beam was located when he was shot." He notes the trial court failed to instruct on theories of aiding and abetting, or vicarious liability. We find these contentions unpersuasive.
1. Sufficient evidence supports the conviction in count 9.
Section 246 makes it a felony to "maliciously and willfully discharge a firearm" at an occupied motor vehicle. This is a general intent crime. (People v. Overman (2005) 126 Cal.App.4th 1344, 1356.) To be liable under this section, a person need not shoot directly at an inhabited or occupied target. Instead, section 246 "proscribes shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it." (People v. Overman, at pp. 1355-1356, original italics.) "The defendant's conscious indifference to the probability that a shooting will achieve a particular result is inferred from the nature and circumstances of his act." (Id. at pp. 1356-1357.) Section 246 does not require a specific intent beyond the prohibited act of shooting at an occupied building or other proscribed target. "In other words, the statute does not require a specific intent to achieve a particular result (e.g., strike an inhabited or occupied target, kill or injure). [Citation.] Instead, the statute only requires a shooting under facts or circumstances that indicate a conscious disregard for the probability that one of these results will occur." (People v. Overman, supra, at p. 1357, fn. omitted.)
In People v. Chavira (1970) 3 Cal.App.3d 988 (Chavira), the defendant and his associates fired several shots at people "congregated in front of, and on the driveway leading to" an inhabited dwelling. (Id. at p. 993.) The Chavira court rejected an insufficiency of evidence claim on appeal. It determined the defendant and his associates fired a "fusillade of shots directed primarily at persons standing close to a dwelling. The jury was entitled to conclude that they were aware of the probability that some shots would hit the building and that they were consciously indifferent to that result. That is a sufficient 'intent' to satisfy the statutory requirement." (Ibid., fn. omitted.)
Here, contrary to appellant's assertion, it is immaterial whether Beam received the fire from front to back, or vice versa. As a result of this shooting, Ellis's occupied vehicle was struck by a bullet. The bullet was imbedded so deeply police could not retrieve it. This fact supports a strong inference her occupied vehicle was in close proximity when the shooters opened fire on Beam. We reject appellant's argument as speculative that Ellis's vehicle may have been moved before it was photographed.
The jury determined appellant was one of Beam's two shooters. Ellis explained where she saw the shooters relative to Roy's Market and Beam. She testified the shooters fired together. She said Beam "was in front" of her vehicle when the shooting occurred, and the shooters were "up by the store." She agreed her car would have been directly in the background if they were shooting at Beam from a particular location in front of Roy's Market.
The jury visited the shooting scene and were able to see its layout first hand. The jury was able to view the photographic evidence depicting the pattern of shell casings relative to Ellis's parked vehicle and the area where Beam fell. Based on Ellis's testimony and the photographic evidence, an inference exists Beam's shooters were aware of a probability that some shots would hit the occupied vehicle near Beam, and the shooters were consciously indifferent to that result.
The jury had sufficient evidence to determine appellant fired multiple shots at Beam in close proximity to Ellis's occupied vehicle under circumstances showing a conscious disregard for the probability her vehicle would be struck. This evidence was reasonable, credible, and of solid value. After viewing the evidence favorably for the prosecution, a reasonable jury could have found appellant guilty beyond a reasonable doubt of violating section 246. Accordingly, appellant's insufficiency claim fails.
2. Any presumed instructional error was harmless.
As part of the insufficiency claim, the parties dispute whether error occurred because the trial court failed to instruct on aiding and abetting. Appellant correctly notes the gang-related firearm enhancement pursuant to section 12022.53, subdivision (d), was not alleged in the information for this count. He contends the prosecutor erroneously relied upon the text of this enhancement to prove appellant was vicariously liable of committing the substantive offense in count 9. He argues reversal is required because a properly instructed jury would not have relied upon the prosecutor's erroneous theory. In contrast, respondent argues the prosecutor properly relied upon a vicarious liability theory via the gang-related firearm enhancement under section 12022.53, subdivision (d).
We need not resolve the parties' dispute regarding whether or not the trial court should have instructed on aiding and abetting. We also need not analyze whether or not the prosecutor properly relied upon a vicarious liability theory via the gang-related firearm enhancement. Any presumed error was harmless.
When examining prejudice caused by instructional error that gave a legally inadequate theory of guilt, a reviewing court must conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory. (People v. Chun (2009) 45 Cal.4th 1172, 1203 (Chun).)
Here, although we question why the prosecutor stated during closing arguments that both appellant and Pink were liable because of the gang-related gun enhancement, these comments were very brief, and were neither repeated nor emphasized. Importantly, during rebuttal arguments, the prosecutor went away from his earlier comments and stated this was a "willful and malicious act. Someone's firing while there's a car in the background. They don't have to be aiming directly at that car. It's the act itself that's malicious, firing in that direction." The prosecutor asked the jury to read the instructions regarding count 9 and look at the diagrams the testifying examiner prepared, which he contended were "consistent with the evidence at the scene."
With CALCRIM No. 200, the jury was told to follow the law as given by the trial court if the attorneys' comments on the law conflicted. With CALCRIM No. 965, the jury was instructed that appellant was guilty in count 9 if he deliberately and maliciously shot a firearm, and he shot the firearm at an occupied motor vehicle. We presume the jury followed the trial court's instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
The evidence overwhelmingly established that Ellis's occupied vehicle was in the background or in close proximity when appellant fired multiple shots at Beam. Based on this record, it is beyond a reasonable doubt the jury based its verdict on a legally valid theory. The lack of instruction regarding aiding and abetting was harmless. Accordingly, this claim fails.
IV. The Trial Court Had No Duty To Instruct On Grossly Negligent Discharge.
Appellant contends his conviction in count 9 for shooting at an occupied vehicle must be reversed for failure to instruct on the lesser included offense of discharging a firearm in a grossly negligent manner.
A. Background.
During deliberations, the jury sent a note to the judge asking for "further understanding of the implications of the car in the 'line of fire.' How do we interpret count # 9 when the car was not the intended target?" The trial court provided the following written response: "Count 9 is a crime of general intent (CALCRIM 252). CALCRIM 965, #2, defines what [appellant's] intended target was."
B. Standard of review.
A de novo standard of review is used when a trial court has allegedly failed to instruct on an assertedly lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) A trial court is required to instruct the jury on a lesser included offense only if there is substantial evidence that absolves the defendant from guilt of the greater offense but not the lesser. (Ibid.) Substantial evidence in this regard has been defined as evidence a reasonable jury could find persuasive. (Ibid.) In reviewing this claim, we are to view the evidence in the light most favorable to appellant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
C. Analysis.
Appellant argues the trial court was under a sua sponte duty to instruct on section 246.3, but failed to do so. He contends "there was substantial evidence that [Ellis's vehicle] was not within firing range." He asserts the prosecution struggled to explain how the vehicle was in the line of fire, and the jury's note "reflected their difficulty applying the evidence to section 246." He maintains his conviction for section 246 must be reversed. We disagree.
Section 246.3 prohibits a person from willfully discharging a firearm in a grossly negligent manner which could result in injury or death to a person. Section 246.3 is a lesser included offense of section 246 because section 246 cannot be violated without violating section 246.3. (People v. Overman, supra, 126 Cal.App.4th at p. 1358.) "'The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendant's firing range. Section [246.3] does not include this requirement.'" (People v. Ramirez (2009) 45 Cal.4th 980, 986, quoting People v. Overman, supra, 126 Cal.App.4th at p. 1362.)
Here, viewing the evidence favorably for appellant, substantial evidence did not exist that absolved him from guilt of section 246 but not from section 246.3. To the contrary, substantial evidence established that Ellis's occupied vehicle was in appellant's firing range when he shot multiple times at Beam. The trial court had no sua sponte duty to instruct the jury on section 246.3. Accordingly, this claim fails.
V. The Instructional Error Was Harmless Regarding Count 13.
The jury found appellant guilty in count 13 of participation in a street gang in violation of section 186.22, subdivision (a). Before appellant's trial occurred, our Supreme Court in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez) held that section 186.22, subdivision (a), is not violated when a gang member acts alone in committing a crime. (Rodriguez, at p. 1139.) Instead, it must be shown the defendant acted collectively with at least one other member of the same gang. (Id. at p. 1132.) Liability under section 186.22, subdivision (a), requires a showing of more than nominal or passive involvement with a criminal street gang. (People v. Castenada (2000) 23 Cal.4th 743, 752 & fn. 3.)
The parties agree, as do we, that instructional error occurred in count 13 regarding appellant's alleged active participation in a criminal street gang in violation of section 186.22, subdivision (a). The trial court did not instruct the jury that at least two members of the same gang must have participated in the felony offense, and appellant may count as one of those members. The parties disagree, however, regarding whether this error was harmless. Instructional error affecting an element of the charged offense warrants reversal unless it is harmless beyond a reasonable doubt. (Chun, supra, 45 Cal.4th at p. 1203.) In reviewing prejudice for an omitted element, the question is "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." (Neder v. United States (1999) 527 U.S. 1, 19.) We find this error harmless.
Appellant concedes Pink was an active CBC member at the time of this offense. As discussed above in section II, appellant had more than nominal or passive involvement with CBC despite his claims to the contrary during his police interviews. This record does not contain evidence that could rationally lead to a contrary finding. It is beyond a reasonable doubt the trial court's instructional error was harmless. Accordingly, this claim fails.
VI. The Instructional Error Was Harmless Regarding Count 12.
The parties agree, as do we, that the same instructional error discussed above for count 13 also impacted the conviction in count 12. In count 12, appellant was convicted of carrying a loaded firearm in public as a criminal street gang member in violation of section 25850, subdivision (c)(3).
Pursuant to section 25850, it is a misdemeanor to carry a loaded firearm in a public place, among other enumerated locations. (§ 25850, subds. (a) & (c)(7).) The statute sets forth various alternative penalty provisions. A felony is imposed when a person commits this crime as an active participant in a criminal street gang as defined by section 186.22, subdivision (a). (§ 25850, subd. (c)(3).)
Our Supreme Court has held that all of the elements in section 186.22, subdivision (a), must be satisfied before the alternative penalty provision of section 25850, subdivision (c)(3), applies. (People v. Lamas (2007) 42 Cal.4th 516, 524 [analyzing the interplay of section 186.22, subdivision (a), with former section 12031, subdivision (a)(2)(C)]; see also People v. Infante (2014) 58 Cal.4th 688, 690 [section 25850, subdivision (c)(3), was formerly section 12031, subdivision (a)(2)(C)].)
As discussed above, it is beyond a reasonable doubt that all elements of section 186.22, subdivision (a), were satisfied. A properly instructed jury would have rendered the same verdicts. Accordingly, this claim fails.
VII. The LWOP Sentence Is Valid Under Section 190.2, Subdivision (A)(22).
The jury found true that appellant committed Beam's first degree murder while an active participant in a criminal street gang, and the crime was carried out to further the activities of the criminal street gang within the meaning of section 190.2, subdivision (a)(22). Based on this true finding, appellant received an LWOP sentence.
Appellant argues he cannot be sentenced to LWOP because he does not meet the requirements for active participation in a criminal street gang under section 186.22, subdivision (a). We disagree. As analyzed above, all elements were met under section 186.22, subdivision (a). Accordingly, appellant's LWOP sentence is valid and this claim fails.
VIII. The Instructional Error Was Harmless Regarding Count 14.
Appellant argues the murder instruction under CALCRIM No. 520, which included implied malice, permitted the jury to find him guilty of conspiracy based on less than the requisite intent to kill. Citing People v. Swain (1996) 12 Cal.4th 593 (Swain), the parties agree, as do we, that instructional error occurred in count 14 because the trial court did not clarify that a conviction of conspiracy to commit murder cannot be based on a theory of implied malice.
A. Background.
1. Relevant pleadings.
Count 14 alleged that between February 6, 2013, and March 3, 2013, Allen, appellant, Williams and Pink conspired together to commit murder.
2. Jury instructions regarding conspiracy to commit murder.
Using CALCRIM No. 563, the trial court gave the jury the following relevant instructions regarding count 14. Appellant was guilty of conspiracy to commit murder in violation of section 182 if the prosecution proved the following:
(1) Appellant intended to agree and did agree with one or more members of the conspiracy, Allen, Williams and/or Pink, to intentionally and unlawfully kill;
(2) At the time of the agreement, appellant and one or more members of the alleged conspiracy intended that one or more of them would kill; and
(3) One of the members of the conspiracy committed at least one overt act to accomplish the killing.
The jurors were given a list of the following seven alleged overt acts:
(1) Williams traveled in an automobile on Martin Luther King Boulevard in Bakersfield, California, on February 6, 2013;
(2) Pink possessed a handgun on February 6, 2013;
(3) Allen left the area of Roy's Market in an automobile after the shooting on February 6, 2013;
(4) Appellant was walking on Martin Luther King Boulevard near Roy's Market in Bakersfield, California, on February 10, 2013;
(5) Appellant and Pink spoke to Beam on Martin Luther King Boulevard on February 10, 2013;
(6) Pink and an unknown person were present on 420 Whitlock Street on March 3, 2013; and
(7) Pink spoke to Eason on March 3, 2013.
The jury was told to "refer to the instructions" defining murder to determine if appellant "and one or more of other alleged members of the conspiracy intended to commit murder[.]" The jurors were told an agreement could be inferred from conduct if they concluded the members of the alleged conspiracy "acted with a common purpose to commit the crime."
3. Jury instructions regarding murder.
Using CALCRIM No. 520, the trial court gave the jury the following relevant instructions regarding whether appellant was guilty of murder. The prosecution had to prove (1) appellant committed an act that caused death of another person; (2) when he acted, appellant had malice aforethought; and (3) he killed without lawful excuse or justification.
The court explained that "two kinds of malice aforethought" existed, express and implied. Express malice existed if appellant "unlawfully intended to kill." Implied malice was "if he intentionally committed an act, the natural and probable consequences of the act were dangerous to human life, and at the time he acted, he knew his act was dangerous to human life, and he deliberately acted with conscious disregard for human life."
Using CALCRIM No. 521, the court instructed that first degree murder required proof appellant acted willfully, deliberately, and with premeditation. "[Appellant] acted willfully if he intended to kill." Appellant acted "deliberately if he carefully weighed the considerations for and against his choice and knowing the consequences, decided to kill." Premeditation occurred "if he decided to kill before completing the acts that caused the death."
4. Relevant closing arguments.
During closing arguments, the prosecutor argued the alleged conspiracy to commit murder "goes back to February 6th, the drive-by shooting at Roy's, and it ends on March 3rd, the walkup shooting at Whitlock[.]" The prosecutor asked the jury to find true the alleged overt acts, which would establish the conspiracy.
Regarding Beam's murder, the prosecutor stated this was a killing done with express malice. He contended appellant and Pink wanted to kill Beam. The prosecutor noted this case did not involve implied malice. "Once you have established their intent to kill a specific person, then you're just looking at the express malice theory and the implied malice doesn't count. So it's an express malice killing."
B. Standard of review.
When examining prejudice caused by instructional error that gave a legally inadequate theory of guilt, a reviewing court must conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory. (Chun, supra, 45 Cal.4th at p. 1203.)
C. Analysis.
In Swain, supra, 12 Cal.4th 593, the defendants (Swain and Chatman) were each convicted of conspiracy to commit murder and other crimes. (Id. at p. 596.) The target offense was determined to be murder in the second degree. (Id. at p. 598.) On appeal, the Swain court was asked to decide, among other issues, whether someone could conspire to commit implied malice murder. (Id. at p. 599.) After analyzing the relevant law regarding conspiracy and murder, Swain held "a conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice." (Id. at p. 607.) Based on its record, Swain found prejudice because the jury received instructions on both express and implied malice. "They returned general verdicts, which do not inform us on what theory they found the requisite element of malice necessary to convict on the charges of conspiracy to commit murder. Under the implied malice instructions, the jury could have found malice without finding intent to kill. [Citation.] The prosecutor repeatedly referred to implied malice in the closing arguments, stating at one point that '... this could very easily be an implied malice case.'" (Ibid.) Accordingly, Swain reversed the defendants' convictions of conspiracy to commit murder. (Ibid.)
Here, similar to the concern raised in Swain, the jury received instructions on both express and implied malice murder. The jury was not instructed that a conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice. As such, instructional error occurred and we must analyze prejudice.
Appellant argues the shootings on February 6 and March 3, 2013, did not have evidence of an agreement among the defendants to commit express malice murder. He also contends the prosecutor relied on circumstantial evidence to prove conspiracy and the charged overt acts did not contain evidence of an intent to kill. He asserts a jury could have relied upon a mix of both express and implied malice to find appellant guilty of conspiracy to commit murder. We disagree.
Unlike in Swain, Beam's murder was based on a theory of express malice. The jury found that appellant committed first degree murder, finding true premeditation and deliberation within the meaning of section 189. The evidence established that appellant acted in concert with Pink when intentionally killing Beam.
Based on this record, it is beyond a reasonable doubt that the instructional error was harmless. Accordingly, this claim fails.
IX. Cumulative Prejudice Did Not Occur.
Appellant contends cumulative errors permeated his trial, denying him a fair hearing and due process. We disagree. Although appellant has shown his trial was not perfect, few are, especially one that is complex. (People v. Cooper (1991) 53 Cal.3d 771, 839.) Whether considered separately or in combination, the errors addressed above were harmless. (People v. Seaton (2001) 26 Cal.4th 598, 691-692.)
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
MEEHAN, J.