Opinion
H045010
10-18-2021
THE PEOPLE, Plaintiff and Respondent, v. STEVEN CRAIG BOWIE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1359214)
GROVER, J.
Defendant Steven Craig Bowie fired a single gunshot one night outside a bar in Sunnyvale where he was performing with a hip hop group. The shot killed a bouncer and wounded a bystander. A jury convicted defendant of first degree murder and assault with a firearm. As to both counts, the jury found true allegations that defendant personally used a firearm and committed the crimes for the benefit of a criminal street gang. On appeal from an indeterminate sentence of 63 years to life, defendant argues: the prosecutor improperly used peremptory challenges to dismiss African American jurors; the trial court allowed a gang expert to discuss unduly prejudicial rap lyrics; the trial court improperly influenced the jury's order of deliberations; defendant's trial counsel provided ineffective assistance by not objecting to the prosecutor's closing arguments about provocation and imperfect defense of another; and that the foregoing errors were cumulatively prejudicial. Defendant also asks that we remand the matter for two reasons: to provide the trial court an opportunity to exercise its discretion to determine whether to strike the formerly mandatory firearm enhancements; and to allow defendant to make a record of information that will be potentially relevant at a future youth offender parole hearing (People v. Franklin (2016) 63 Cal.4th 261 (Franklin)). For the reasons stated here, we find no prejudicial error and will affirm the judgment. We will, however, remand the matter for the limited purpose of affording defendant an opportunity to create record for use at a future youth offender parole hearing.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by information with murder (Pen. Code, § 187), and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). (Unspecified statutory references are to the Penal Code.) As to both counts, the information alleged that defendant personally used a firearm (§§ 12022.5, 12022.53), and committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)). The matter proceeded to a jury trial where the following evidence was presented.
Defendant was part of a gangster rap hip hop group called the Josie Bois. Defendant's brother Eric Bowie testified that the Josie Bois consisted of himself, defendant, and Damon Stevenson. The group had a gig at a bar in Sunnyvale one night in June 2013. Eric testified that the Josie Bois were not gang members, but merely performers who rapped in the "[g]angster rap" genre. Eric was unable or unwilling to recall the names of most people who were with them that night, which he blamed on having a "bad memory."
Jessie McDowell testified he was working at the bar that night as a bouncer along with David Lucero. McDowell was working at the front door. He asked some bar patrons not to loiter in front of the adjacent stores. A verbal altercation between McDowell and one of those patrons (later identified as Francisco Burgos) escalated, and McDowell eventually punched and slammed Burgos onto the ground. Others joined that altercation, including Darius McNary (whose sister has a child with defendant). McDowell fell down after being hit in the face. While he was down McDowell heard a gunshot. He got up and saw Lucero lying on the ground of the parking lot in front of the bar. Lucero was breathing immediately after the shooting but never got up; he died at the scene. The doctor who performed Lucero's autopsy testified that a single bullet broke a rib while also piercing Lucero's heart and one lung, causing "massive bleeding." The bullet entered Lucero's back and exited his chest.
A bystander who was also outside when Lucero was shot testified that he heard one loud pop and then felt like he had been hit with a baseball near his collarbone. He touched the area where he had been hit, noticed blood, and realized he had been shot. The bullet left a wound but did not enter the bystander's body.
A camcorder video taken in front of the bar was admitted into evidence and shown to the jury. The video shows McDowell's fight with Burgos and the moment the gun was fired. Based on that original video, a prosecution expert testified about creating other exhibits to highlight specific details from the video. One exhibit pinpointed when the gunshot noise occurred. Immediately after the gunshot noise a faint puff of smoke can be seen rising from the area next to what appears to be defendant's outstretched arm.
A former San Jose Police Department officer who was employed at the time of trial as a homicide investigator in the Santa Clara County District Attorney's Office testified as an expert about criminal street gangs. The gang expert explained that the Crips are the main African American umbrella street gang in San Jose. Their main rival is the Bloods. Several subsets are associated with the umbrella Crips gang. One of those subsets is the Deuce Gang Crips. Their main colors are blue and gray. Their symbols include the Detroit Tigers baseball cap; the letters D (for Deuce), C (for Crips), and BK (for Blood killer); and the numbers four, seven, and three (because D, G, and C are the fourth, seventh, and third letters of the alphabet). Those symbols are often displayed via hand signs. The Deuce Gang Crips' primary activities include possessing illegal firearms, robbery, assault, and drug sales. Evidence of several prior convictions was admitted into evidence to show predicate offenses, including the convictions of Burgos and Stevenson for a 2015 robbery with a gang enhancement; and two felony assault convictions of Darius McNary (with McDowell and Lucero as the victims) from the same altercation that resulted in Lucero's death.
The gang expert opined that "Josie Bois" is the name Deuce Gang Crip members use to rap and is not a separate subset. He stated the lyrics and video evidence from the Josie Bois rap group (including hand signs and manner of dress) displayed at trial as a slide show are consistent with the rappers being gang members. The expert noted the danger of pretending to be a gang member because actual members would see that as a sign of disrespect and would attack the person posing as a gang member.
Based on the evidence he reviewed, the expert described the following people (among others) as members of Deuce Gang Crips: Damon Stevenson, Darius McNary, Francisco Burgos, and defendant. (Though he was not asked directly whether defendant's brother Eric Bowie was a member of the Deuce Gang Crips, the expert identified him in several Josie Bois videos throwing hand signs and wearing clothing consistent with the gang.) The expert concluded that defendant is a gang member based on defendant's use of Deuce Gang Crips hand signs; his association with other Deuce Gang Crips members; his participation in the crimes for which he was on trial; and his lyric from a Josie Bois video that he "do do this shit" he raps about (namely, gang violence). The expert also testified that the shooting in this case was consistent with gang activity. If a gang member like Francisco Burgos is attacked by someone such as a bouncer, other gang members will perceive that as disrespectful to the gang and will be obliged to get involved to assist their fellow gang member. According to the expert, shooting someone who attacks a fellow gang member benefits the gang by showing that "Deuce Gang's not afraid to mess with anybody and not afraid to use weapons to overcome any obstacle or resistance."
Defense counsel conceded during closing argument that defendant was the shooter, but argued that defendant was guilty of only manslaughter. Counsel urged that rather than being gang-related, the shooting "was about family," namely, protecting McNary (the uncle of defendant's child) and defendant's brother Eric. Counsel noted that the entire incident lasted less than a minute, and argued defendant reacted from passion after being provoked by the bouncers' actions. Alternatively, counsel argued defendant believed McNary was in imminent danger of suffering great bodily injury and defendant fired the gun in imperfect defense of McNary.
The jury found defendant guilty of first degree murder and assault with a firearm, and found true the firearm use and gang allegations for each count. The trial court sentenced defendant to an indeterminate term of 63 years to life, consisting of: 25 years to life for first degree murder (§ 187, subd. (a)); 25 years to life consecutive for the firearm use enhancement related to the murder (§ 12022.53, subd. (d)); three years consecutive for assault with a firearm (middle term, § 245, subd. (a)(2)); and 10 years consecutive for the firearm use enhancement related to the assault (aggravated term, § 12022.5). The court struck the punishment for the gang enhancement associated with the assault conviction. No additional sentence is associated with the gang enhancement for the murder, which affects parole eligibility. (§ 186.22, subd. (b)(5) ["[A]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."].)
II. DISCUSSION
A. Batson/Wheeler Motion
Defendant argues the trial court violated his federal constitutional rights to equal protection and a representative jury by denying his Batson/Wheeler motion relating to the prosecutor's use of peremptory challenges to remove the only two African American prospective jurors who had been called to the jury box for voir dire as of the time of the motion.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
A trial court's review of a Batson/Wheeler motion involves three steps. First, the defendant must make a prima facie showing that the prosecutor exercised peremptory challenges based on race. Second, if the trial court finds a prima facie case the prosecutor must state nondiscriminatory reasons for the challenges. And third, the trial court must determine "whether the reasons are credible and whether the defendant has shown purposeful discrimination under all of the relevant circumstances." (People v. Melendez (2016) 2 Cal.5th 1, 14.) We infer a prima facie showing and proceed directly to reviewing the ultimate question of purposeful discrimination where the trial court requires the prosecutor to state reasons for the challenges. (People v. Hardy (2018) 5 Cal.5th 56, 76 (Hardy).)
At the third step, the defendant must show it was more likely than not that the challenge was improperly motivated. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).) A prosecutor's justification need not support a challenge for cause, and "even a trivial reason, if genuine and race neutral, is sufficient." (Hardy, supra, 5 Cal.5th at p. 76.) We focus our review on "whether the proffered neutral reasons are subjectively genuine, not on how objectively reasonable they are." (Ibid.) Close scrutiny is particularly warranted when the prosecutor removes all members of a certain group from the pool of prospective jurors. (Id. at p. 78.)
When, as here, the trial court denies the motion with a general finding that the prosecutor's stated reasons are genuine and race neutral, our deference to the trial court depends on whether the prosecutor's stated reasons are inherently plausible and supported by the record. If the reasons are inherently plausible and supported by the record, we defer to the trial court and review whether substantial evidence supports the trial court's conclusions. (People v. Smith (2018) 4 Cal.5th 1134, 1147-1148 (Smith).) But "when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient." (People v. Silva (2001) 25 Cal.4th 345, 386.) In that latter situation, we review the record without deference to the trial court. (See Gutierrez, supra, 2 Cal.5th at p. 1172.) As we will discuss, we find the prosecutor's stated reasons inherently plausible and supported by the record, and therefore the trial court's decision is entitled to deference.
Starting in January 2022, new legislation will require a trial court to explain the reasons for its decision on a Batson/Wheeler motion in greater detail. (See Stats. 2020, ch. 318, §§ 1-2.)
1. Voir Dire and the Prosecutor's Stated Reasons
At issue in this appeal are the prosecutor's peremptory challenges to two African American prospective jurors, one female and one male. The female prospective juror stated during voir dire that she had just started a job as a probation officer. When asked what made her interested in becoming a probation officer, she responded: "My dad is currently a probation officer and it's something I have been wanting to do since" graduating from college. She said she had not talked with her father about his cases. She stated she was drawn to the "rehabilitation part" of the job. She studied sociology in college, and before becoming a probation officer had worked at a residential group home and at a foster care agency. She felt she could separate her tasks as a juror (described by the prosecutor as a "search for truth, determining the facts") from consideration of rehabilitation and punishment.
The prosecutor asked the male prospective juror for his opinions on whether the judicial system is fair. The prospective juror responded that he believed the system "does the best job [it] can given the nature of people. Is it perfect? No, but does it function? Yes." Asked to elaborate, he stated the system "does a good job of providing a fair and open platform" in terms of the "right to a trial and this process" but that "if a person is not guilty, punishments that were, you know, handed down are not always case to case, even though the details are similar." He mentioned a newspaper article from a few weeks after Brock Turner's sentencing discussing "someone else who had committed a similar crime who had a very different punishment for the very similar kind of crime." Asked later about how he liked his job in quality assurance at a technology company, the prospective juror stated there are good days and bad days. The prosecutor asked the prospective juror the following: "That's what a jury is. At the end of it, you'll deliberate as a group but still, ultimately, make your individual decision. Do you think your experiences at work are beneficial for that?" The prospective juror answered affirmatively, apparently with a facial expression which the prosecutor asked him about. The prospective juror responded, "It's an interesting question to be asked. I wasn't sure where you were going with that. That's not where I expected that question to end." The prosecutor stated "That's where it was ending," and then moved on to questioning other prospective jurors.
The prosecutor exercised peremptory challenges to those two prospective jurors, and defense counsel objected under Batson/Wheeler. This occurred fairly early in jury selection, with the prosecutor having exercised five peremptory challenges, two to the African American male and female prospective jurors. Defense counsel noted in her motion that the two jurors were the only two African Americans who had been called to the jury box at that point. The trial court asked for the prosecutor's nondiscriminatory reasons for the peremptory challenges.
The prosecutor noted the female prospective juror stated she became a probation officer because she was interested in rehabilitation. The prosecutor was concerned that she was "more focused on the social aspects of a person than considering what they've done to society." The prosecutor also doubted the prospective juror's candor about being inspired to become a probation officer because her father was a probation officer but she had never with him talked about his cases. And the prosecutor was concerned the prospective juror's college degree in sociology might make her "more susceptible and inclined to believe" testimony about rap lyrics from a potential defense witness who was a sociology professor.
The prosecutor noted the male prospective juror was the only prospective juror "who singled out concerns about unequal treatment among people" when asked about the fairness of the court system, even comparing the Brock Turner case to an "unnamed case where he believes another person got a disproportionate punishment." The prosecutor also noted the prospective juror "furrowed his brow" when asked about his ability to work with other jurors, which the trial court confirmed seeing. The prosecutor continued that the prospective juror made "hostile" facial expressions in response to other questions. The prosecutor believed those reactions cast doubt on whether the prospective juror would work well with others.
The court denied the motion, reasoning "based on the totality of the circumstances that I saw during jury selection and also considering [the prosecutor's] reasoning for his challenges," the prosecutor's challenges "were not exercised in a prejudicial manner or in a manner to exclude all African Americans from the jury."
2. The Trial Court Did Not Err in Denying the Motion
Defendant identifies factors he argues are relevant to the analysis, including whether the prosecutor struck all or most African Americans in the venire. Defendant cites People v. Woodruff (2018) 5 Cal.5th 697, 749, which identified those factors as relevant to whether the defendant had made a prima facie showing (i.e., the first step of the Batson/Wheeler analysis). In reviewing the trial court's ruling (the third step of the analysis), the proper focus is on the genuineness of the prosecutor's stated reasons for dismissing each prospective juror.
a. The Female Prospective Juror
The prosecutor gave three facially nondiscriminatory reasons for excusing the female prospective juror: her interest in rehabilitation making her more interested in the social aspects of a defendant than whether he committed the charged crimes; concerns about whether she had ever discussed her father's probation work with him; and a sociology degree making her more inclined to believe a potential defense expert who was a sociology professor.
Defendant argues that any probation officer would have the same interest in rehabilitation as the prospective juror. Defendant contends that because the prosecutor's concern would apply to any probation officer, it is inherently implausible that the prosecutor would have excused any probation officer from the jury regardless of his or her race. But probation officers are presumably drawn to that profession for a variety of reasons, whereas the female prospective juror singled out the "rehabilitation part" as what drew her to the job. A prospective juror's profession can be a nondiscriminatory reason for a peremptory challenge. (People v. Watson (2008) 43 Cal.4th 652, 677 [affirming peremptory challenge based on prospective juror's profession as a social worker]; People v. Reynoso (2003) 31 Cal.4th 903, 924-925 ["If a prosecutor can lawfully peremptorily excuse a potential juror based on a hunch or suspicion, or because he does not like the potential juror's hairstyle, or because he observed the potential juror glare at him, or smile at the defendant or defense counsel, then surely he can challenge a potential juror whose occupation, in the prosecutor's subjective estimation, would not render him or her the best type of juror to sit on the case for which the jury is being selected."].)
Defendant next argues that any suspicion the female prospective juror was not truthful about whether her father had ever discussed his work with her was "completely subjective in nature and will never be supported by the record." But the subjective genuineness of the prosecutor's reason is precisely what is at issue in the third step of the Batson analysis. (Hardy, supra, 5 Cal.5th at p. 76.) It is inherently plausible that a prosecutor would challenge a prospective juror who, in the prosecutor's judgment, lies or omits details. And the prosecutor's suspicion here was based on an apparent inconsistency in the juror's responses to questions. The female prospective juror stated that her father was a probation officer when asked what interested her in becoming one, but then denied talking to him about his cases. Though confidentiality rules would prohibit the father from discussing specifics, he would have been able to discuss his job more generally.
Regarding the third reason for excusing the female prospective juror-that her sociology degree would make her more likely to credit the testimony of a defense sociology professor-defendant argues it was pretextual because the prosecutor did not ask follow-up questions about that topic. But the prosecutor's concern is inherently plausible, as a prospective juror's occupation (and by extension, field of study) can be a valid basis for a peremptory challenge. (People v. Landry (1996) 49 Cal.App.4th 785, 790 [affirming dismissal of prospective juror with background in psychology].) Further, "trial courts should attempt to evaluate the attorney's statement of reasons as a whole rather than focus exclusively on one or two of the reasons offered." (Smith, supra, 4 Cal.5th at p. 1158.) Coupled with concerns about the prospective juror being overly concerned with rehabilitation, the trial court could reasonably conclude that the prosecutor was genuinely concerned that the prospective juror would be inclined to believe an expert from the same field as the juror's college degree.
In his reply brief, defendant argues that the third reason for excusing the female prospective juror was pretextual because the "prosecutor also called a witness who testified as an expert in sociology" via the prosecution's gang expert. But the prosecution's gang expert was a homicide investigator and former police officer and did not purport to be a trained sociologist. His expert designation in the trial likewise did not mention sociology; he was admitted as "an expert in Crip street gangs, including the subset Deuce Gang Crip as well as the Hispanic criminal street gangs in the area of membership, primary activities, signs, symbols, culture, and operations."
We conclude the three reasons the prosecutor advanced for excusing the female prospective juror were inherently plausible and supported by the record.
b. The Male Prospective Juror
The prosecutor gave two facially nondiscriminatory reasons for excusing the male prospective juror: concern that his general misgivings about the fairness of the court system would adversely affect his ability to be fair and impartial, and concern that the prospective juror's furrowed brow and purported similar expressions suggested he might not work well with other jurors while deliberating.
Regarding the first stated concern, defendant appears to argue that because "an opinion that the criminal justice system is fundamentally unfair is an opinion that is likely shared by many jurors," it cannot hold up under close scrutiny. Defendant cites a book and a study, neither of which were provided to the court nor the subject of a request for judicial notice. His argument also ignores consistent precedent finding that a prospective juror's concern about the fairness of the criminal justice system can be a valid reason for a peremptory challenge, so long as the prosecutor's concern is subjectively genuine. (People v. Clark (2011) 52 Cal.4th 856, 907 ["A prospective juror's distrust of the criminal justice system is a race-neutral basis for his excusal."]; Hardy, supra, 5 Cal.5th at p. 81; People v. Calvin (2008) 159 Cal.App.4th 1377, 1386.) The prosecutor's stated reason is therefore plausible. It also finds support in the record, given the juror's expressed concern about disparate sentencing in reference to reporting about the Brock Turner matter.
As to the prosecutor's second stated concern about the male juror's facial expressions and ability to work well with other jurors, defendant contends that "the record does not support the prosecutor's justification that [the male prospective juror's] look was 'hostile' to the prosecution." But the trial court confirmed for the record that the prospective juror furrowed his brow. That the prospective juror's expression could be interpreted as confusion about the prosecutor's question rather than hostility toward the prosecutor is not relevant, again so long as the prosecutor's subjective interpretation was genuine. "A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons." (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).) And the trial court is best situated to evaluate both the words and demeanor of prospective jurors as well as the credibility of the reasons given for peremptory challenges. (People v. Miles (2020) 9 Cal.5th 513, 558 (Miles).) We find the prosecutor's stated reason was both inherently plausible and supported by the record. We therefore defer to the trial court's determination that the prosecutor's demeanor concern was genuine. (Lenix, supra, 44 Cal.4th at p. 614 [credibility and demeanor determinations lie peculiarly within a trial judge's province, requiring deference by appellate courts absent exceptional circumstances].) By confirming that the juror's reaction was observed and later denying the defense motion, the trial court implicitly accepted the prosecutor's stated reason as genuine.
Defendant seeks to separately analyze the prosecutor's statement that the male prospective juror displayed other hostile reactions to the prosecutor's questioning, arguing that the trial court did not separately confirm that any occurred. We analyze the demeanor-based reasons together because although defense counsel disagreed with the prosecutor's characterization of the facial expressions as hostile, nothing in the record contradicts the prosecutor's representation that there was more than one such expression.
Defendant argues that a comparison with responses of two other jurors who were not African American reveals pretext in the prosecutor's reasons for excusing the male prospective juror. Comparative juror analysis examines the challenged juror's voir dire responses and those of similar jurors who were not part of the challenged juror's racial group (and whom the prosecutor did not challenge). (Miles, supra, 9 Cal.5th at p. 541.) It is a form of circumstantial evidence that is relevant, but not dispositive. When raised for the first time on appeal, we"' "must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable," '" and we must consider the issue"' "in view of the deference accorded the trial court's ultimate finding of no discriminatory intent." '" (Ibid.)
Both jurors defendant identifies for comparison-juror nine and alternate juror four-were seated and questioned after defendant's Batson/Wheeler motion was denied. When asked for his thoughts on the court system, juror nine stated "I think it's fair, but when you use the word 'all' in my business, we don't use that word so is it fair to all people? You know, it's hard to say because I don't have a lot of experience in the area, but, you know, just based on my experience, nothing is all. It's sometimes fair. Sometimes it's not." The prosecutor asked a few follow-up questions, including whether the juror had "any such strong feelings ... about the court system in any way that's going to affect your ability to focus on the evidence?" Juror nine responded, "No." Alternate juror four was asked for his opinions on the court system. The juror asked whether there would be any training because it was the first time he had been called to be a juror. The prosecutor explained that there were rules designed to make the process fair, and that a juror's responsibility was to listen to the evidence. Alternate juror four responded, "People have a conscious and unconscious bias." Asked whether "that's going to be an issue for you in this case," alternate juror four responded: "It's a point of view. Right? I know that would affect me, but from the other juror, I don't know. I try to be, you know, you know, fair, but I don't know that our country's bias really affect people when they decide member of the team. [sic] It does affect."
Seizing on the prosecutor's statement to the trial court that he was "very concerned about any juror prospects for being fair and impartial if they have any differential treatment of individuals in the court system," defendant argues that the prosecutor's failure to challenge juror nine or alternate juror four demonstrates that the prosecutor dismissed the male prospective juror because of "group bias against black jurors, and not a juror's minor problems with the fairness of the criminal justice system." Mindful of the deference owed the trial court on this issue first raised on appeal, we find the three individuals' responses to the fairness question were materially different. Juror nine affirmatively stated at the beginning of his response about the criminal justice system that "I think it's fair," and then clarified that he did not have a lot of experience with the system and did not like to speak in absolutes. That is materially different than the male prospective juror's response that the criminal justice system "does the best job [it] can" while also disproportionately punishing certain individuals. Alternate juror four's concern appeared to be about the conscious and unconscious biases of people (including other jurors) rather than about the fairness of the criminal justice system. And both juror nine and alternate juror four confirmed on additional questioning that their views would not impact their ability to be impartial. Defendant argues the follow-up questions show the prosecutor "attempted to rehabilitate the nonblack jurors" in a way he had not with the male prospective juror. But the differential questioning issue defendant raises is unpersuasive given the Batson/Wheeler motion had already been denied before the prosecutor questioned juror nine or alternate juror four. Finally, there is no evidence in the record that the two jurors defendant compares with the male prospective juror exhibited facial expressions during the prosecutor's questioning in the same manner as the male prospective juror.
We find no error in the trial court's decision to deny defendant's Batson/Wheeler motion.
B. Admission of Rap Lyrics
Defendant argues the trial court erred by allowing the gang expert to discuss unduly prejudicial rap lyrics. (Evid. Code, § 352.) We review the trial court's decision for abuse of discretion. (People v. Tran (2011) 51 Cal.4th 1040, 1049.)
The prosecutor sought to introduce a slide show of still images and videos featuring the Josie Bois rap group, which the gang expert would then explain for the jury. The court reviewed the slide show with the parties on the record outside the presence of the jury, and sustained defense objections to certain slides. One proposed slide included the following rap lyrics uttered by defendant: "I'm quick to let the bullets fly. Open your eyes, you die. Real life. I need no lie. And I do [do] this shit I rap about. Envy on me and I rata your house with my mask on my mouth from the track flag on my face, cut on my waist and I'll leave you wasted like hoochy." The prosecutor argued the key line was "I do do this shit I rap about" because it supported the prosecution's theory that defendant was a gang member and not merely a rapper. Defense counsel objected to the entire statement as unduly prejudicial under Evidence Code section 352. The trial court concluded that while admitting the full lyrics would be unduly prejudicial, the key line the prosecutor identified was admissible as well as a general statement by the gang expert that defendant rapped about "gang violence."
Before the gang expert's testimony, the court instructed the jury with the following about gang evidence: "You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and gang enhancement charged, whether the defendant had a motive to commit the crimes charged, whether a gang called Deuce Gang Crip exists, whether a particular person is a member of Deuce Gang Crip, and/or the primary activities of Deuce Gang Crip. [⁋] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and foundation relied on by an expert witness in reaching opinions. You may not consider this evidence for any other purpose. [⁋] You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit a crime."
The prosecutor asked the gang expert what words in defendant's rap lyrics describe doing what he raps about and the expert responded, "I do do this shit I rap about." The prosecutor asked what defendant rapped about and the expert responded, "Gang violence."
Defendant argues the admitted rap lyrics had limited probative value because they did not mention a gang and therefore "could not have been probative regarding whether the Deuce Gang Crip existed, whether appellant was a member of the gang, or to prove the primary activities of the Deuce Gang Crip." But the lyrics must be considered in the context of the other evidence presented at trial. The prosecutor asked the gang expert questions about the slide show containing photographs and videos of defendant associating with individuals who were wearing colors and throwing gang signs the expert opined were associated with the Crips. It was in the context of that slide show that the prosecutor asked the expert the questions about defendant's rap lyrics. The prosecutor did not dwell on that topic, turning immediately to "[t]he next slide" after the expert stated defendant rapped about gang violence. We note that allowing the gang expert to describe defendant's rap lyrics as being about gang violence was part of limiting the expert's response so the jury would not hear that defendant described himself as "quick to let the bullets fly." The challenged evidence, when considered in context, was relevant to support an inference that defendant was a gang member who was willing to engage in violence for the gang, and explained why defendant might shoot someone who was fighting with his friend. Defendant has not demonstrated an abuse of discretion in resolving his Evidence Code section 352 objection.
Defendant cites cases where rap lyrics were found admissible, arguing they "held that rap lyrics are probative under Evidence Code section 352 when the lyrics identify the defendant as belonging to a particular gang, demonstrate his loyalty to that gang, and provide a motive with respect to the charged offense." (Citing People v. Zepeda (2008) 167 Cal.App.4th 25; People v. Olguin (1994) 31 Cal.App.4th 1355.) But those authorities merely found rap lyrics admissible under the particular facts in those cases; they did not purport to establish any baseline requirements for admissibility.
People v. Coneal (2019) 41 Cal.App.5th 951, 970, which found evidence of rap lyrics unduly prejudicial, is distinguishable. Unlike the short, sanitized lyrics in this case, the Coneal jury heard extensive rap lyrics that were misogynistic and "describe[d] graphic, widespread violence." (Id. at p. 970.) Defendant argues the "jury could have considered appellant's broad lyric that he does 'gang violence' only to prove appellant's general propensity to be violent." But the court instructed the jury that it could not use the gang-related evidence to conclude that "defendant is a person of bad character or that he has a disposition to commit a crime." We presume the jury followed that limiting instruction. (People v. Lindberg (2008) 45 Cal.4th 1, 26.)
Defendant contends the rap lyrics should have been excluded because they were cumulative of other evidence. But the rap lyrics were different in that they were direct statements by defendant (Evid. Code, § 1220) rather than circumstantial evidence of his association with individuals the expert opined were gang members. The statements were also relevant to contradict the testimony of defendant's brother Eric that the Josie Bois merely rapped about gang activities without being gang members.
Finally, defendant argues the trial court erred by not considering whether defendant's rap lyrics were protected First Amendment speech. Defendant did not object on that basis in the trial court and has forfeited the federal constitutional argument. (People v. Ervine (2009) 47 Cal.4th 745, 783; People v. Clayburg (2012) 211 Cal.App.4th 86, 93.)
C. Trial Counsel's Performance During Closing Argument
Defendant argues his trial counsel was ineffective for not objecting to arguments the prosecutor made during closing argument, specifically the prosecutor's statements about provocation and imperfect defense of another. To establish ineffectiveness of trial counsel infringing on the right to counsel under the Sixth Amendment to the United States Constitution, a defendant must show both that counsel's performance was deficient and a prejudicial effect of the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) The "decision whether to object, move to strike, or seek admonition ... is highly tactical, and depends upon counsel's evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight [it]." (People v. Catlin (2001) 26 Cal.4th 81, 165 (Catlin).) An attorney does not provide deficient assistance if she fails to make a meritless objection. (People v. Ochoa (1998) 19 Cal.4th 353, 463 (Ochoa).) To prove prejudice, a defendant must affirmatively show a reasonable probability that, but for trial counsel's errors, the result would have been different. (Ledesma, at pp. 217-218.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
1. Provocation and Heat of Passion
The prosecutor correctly described during closing argument the elements necessary to find defendant acted in the heat of passion such that he would be guilty only of manslaughter, including that the "provocation would have caused a person of average disposition to act rashly and without due deliberation from passion rather than judgment." The prosecutor then argued there was no evidence to support those elements. Regarding the objective aspect, the prosecutor asked "[w]hat evidence is there that a reasonable person would shoot somebody in the back because of what happened on the sidewalk there? Right? None." The prosecutor referred to shooting a person in the back two more times as something a reasonable person would not do.
During rebuttal argument, the prosecutor returned to provocation. The prosecutor again stated the objective standard correctly, but then stated it was a "tough thing to argue in this case to shoot someone in the back and how a person of average disposition would do that." The prosecutor asked how "would you possibly think a person of average disposition would choose to put an end to that fight by shooting a person in the back? That would be the reaction of an average reasonable person with average disposition?" The prosecutor asked the jury to "find beyond a reasonable doubt that this provocation would not have caused a person of average disposition to shoot Dave Lucero in the back. You can find that beyond a reasonable doubt."
Defendant contends that defense counsel should have objected because the prosecutor improperly focused on whether the provocation would have led a reasonable person to act as defendant did instead of focusing on whether the provocation would have led a reasonable person to react from passion rather than judgment. Our Supreme Court has made clear that "provocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured." (People v. Beltran (2013) 56 Cal.4th 935, 949 [rejecting Attorney General's argument that "adequate provocation for voluntary manslaughter requires a finding that an ordinary person of average disposition would kill"].) The Attorney General appears to concede that the prosecutor's argument misapplied the law, and we agree as to those statements. We note, however, that although the prosecutor incorrectly referred to whether a reasonable person would shoot someone in the back, the prosecutor also stated the law correctly at multiple points. The prosecutor began by describing provocation as something that "would have caused a person of average disposition to act rashly and without due deliberation from passion rather than judgment." That language is consistent with the trial court's instruction to the jury. (CALCRIM No. 570.) In rebuttal argument, the prosecutor again stated the standard correctly: whether the "provocation would have caused a person of average disposition to act rashly and without due deliberation."
The jury was instructed that if the "attorneys' comments on the law conflict with my instructions, you must follow my instructions." (CALCRIM No. 200.) We presume the jury followed the court's instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Defendant argues the presumption that a jury follows the court's instructions when they conflict with statements of counsel does not apply here because rather than conflicting, the prosecutor's argument sought to incorrectly define the phrase to "act rashly and without due deliberation." But the same instruction clarified that the objective standard relates to reaction rather than action, telling the jury to "consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570.) Because the court's instruction correctly defined the phrase that the prosecutor incorrectly applied, we presume the jury following the court's instructions. (People v. Osband (1996) 13 Cal.4th 622, 717 ["When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' "].)
The jury does not appear to have been confused or divided about the prosecutor's incorrect application. The jurors had seen video evidence of the shooting, allowing them to determine whether the circumstances would have caused a person of average disposition to act rashly. They communicated no questions about provocation during deliberations, and returned guilty verdicts after deliberating for less than one day. Despite the prosecutor's improper argument, on this record defendant has not demonstrated prejudice from counsel's failure to object.
2. Imperfect Defense of Another
The prosecutor summarized the elements necessary to find defendant was acting in imperfect defense of another person. Consistent with the trial court's instructions to the jury (CALCRIM No. 571), the prosecutor noted that to find imperfect defense of another, the jury would have to find defendant "actually believed that [McNary] was in imminent danger of being killed or suffering great bodily injury." The prosecutor then argued there was "no testimony from any witness" that defendant held such an actual belief. The prosecutor moved to the next element of the defense, that defendant "actually believed the immediate use of deadly force was necessary." He argued, "[a]gain, there's no evidence in this case from any witness or the video evidence that this defendant believed he needed to shoot Dave Lucero in the back in order to protect Darius McNary."
The prosecutor returned to the issue during rebuttal argument, asking the jury to "find beyond a reasonable doubt there's no evidence that the defendant actually believed that someone else was in imminent danger of being killed." The prosecutor contended "there's no evidence from the stand, from Eric Bowie or anybody else, that he actually entertained a belief that Darius McNary was going to be killed or suffer great bodily injury." As to a belief that the immediate use of deadly force was necessary, the prosecutor contended "[t]here's no evidence of that belief. Right? None. Not from anybody." The prosecutor asked the jury to "find beyond a reasonable doubt there is no evidence to support that he actually believed he needed to use deadly force to defend Darius McNary."
a. Claimed Griffin Error
Defendant argues that his trial counsel was ineffective for failing to object to the prosecutor's statements during closing argument about there being no evidence that defendant had an actual belief that McNary was in imminent danger of being killed or that deadly force was necessary to defend McNary. He contends the prosecutor's statements were an impermissible comment on defendant's election not to testify, violating the federal constitution's Fifth Amendment. (Griffin v. California (1965) 380 U.S. 609, 615 (Griffin) [Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt."].) That rule does not bar "prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses." (People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford).)
Defendant argues the prosecutor committed Griffin error because the "only evidence that could have been introduced to directly prove appellant's state of mind was his own testimony." But defendant's state of mind could have been proven indirectly by evidence related to his demeanor and actions on the night of the homicide. (See People v. Falck (1997) 52 Cal.App.4th 287, 299 [the" 'element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence' "].) The cases defendant cites finding Griffin error when a defendant's testimony would have been the only way to refute an argument made by the prosecution are distinguishable because the prosecutor's argument here could have been refuted by other evidence (e.g., testimony by another witness about defendant's demeanor). (Citing People v. Vargas (1973) 9 Cal.3d 470, 475-476; People v. Medina (1974) 41 Cal.App.3d 438, 457-458.) The prosecutor's reference to defendant's brother Eric when discussing this issue was a permissible comment on Eric's failure to mention anything related to defendant's demeanor on the night in question, and not an improper comment on defendant's silence.
Defendant criticizes the prosecutor's reference to defendant's" 'actual belief, '" contending it was "necessarily a reference to the absence of direct evidence of intent." But the phrase "actually believed" is the language used in the jury instruction defining imperfect self-defense, suggesting the argument was simply incorporating the applicable legal standard. Further, the jury was properly instructed that defendant had an "absolute constitutional right not to testify," and defense counsel emphasized that instruction during closing argument. Given that the jury was properly instructed about defendant's right not to testify, a tactical reason for not objecting would be not to highlight the prosecutor's argument. (Catlin, supra, 26 Cal.4th at p. 165.) Defendant has not demonstrated deficient performance.
b. Claimed Hill Error
A prosecutor may not misstate the law or make arguments that" 'attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.'" (People v. Hill (1998) 17 Cal.4th 800, 829 (Hill).) The prosecutor argued the jury "should find beyond a reasonable doubt there's no evidence that the defendant actually believed" that McNary was in danger or that deadly force was necessary to defend McNary. Defendant contends the prosecutor committed misconduct by making an argument that "impermissibly shifted the burden of proving [defendant's] mental state to the defense."
We find the prosecutor's statement to be a permissible comment about the lack of any evidence supporting imperfect defense of another, rather than an attempt to shift the burden of proving defendant's mental state to the defense. (Bradford, supra, 15 Cal.4th at p. 1339.) The jury was instructed about the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. (CALCRIM No. 220.) The jury was also properly instructed that the "People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect defense of another." (CALCRIM No. 571.) And when describing the other possible defense (provocation), the prosecutor made clear that the "defense doesn't have to get up and argue the case to you at all. The burden's on me." Because an objection based on Hill would have been without merit, defense counsel was not deficient for not objecting on that basis. (Ochoa, supra, 19 Cal.4th at p. 463.)
D. Instruction on the Order of Deliberations
Defendant argues that the trial court committed Kurtzman error during its oral explanation of the written jury instructions. (People v Kurtzman (1988) 46 Cal.3d 322 (Kurtzman).) California applies an acquittal-first rule to jury verdicts, under which "the jury may not return a verdict on a lesser offense unless it first finds a defendant not guilty of the greater offense." (People v. Olivas (2016) 248 Cal.App.4th 758, 773 (Olivas).) But it is up to the jury to determine the order in which it considers each offense. (See CALCRIM No. 640.) A trial court commits Kurtzman error if it instructs jurors that they must decide to acquit the defendant of the charged offense before even considering any lesser included offenses. (Olivas, at pp. 772-773; Cal. Const., art. VI, § 13.) Notwithstanding defendant's failure to object below, we will consider this claim. (Olivas, at p. 772; § 1259.) If, as here, the challenged instruction is ambiguous, we "independently review whether there is a 'reasonable likelihood that the jury construed or applied the challenged instructions in a manner' contrary to law." (Olivas, at p. 772.)
The trial court instructed the jury before closing arguments. The court told the jury it could "consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty or not guilty of second degree murder only if all of you have found the defendant not guilty of first degree murder." (CALCRIM No. 640.) The court continued: "If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of first degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms for that count." The court then stated the following, which does not appear in the written version of CALCRIM No. 640 that was later provided to the jury: "In other words, if you find the defendant guilty of first degree murder, you don't even consider second degree or voluntary manslaughter. You're done at that point." (Italics added.)
After closing arguments, the trial court explained the verdict forms to the jury for the charged count of first degree murder and its lesser included offenses (second degree murder and voluntary manslaughter). The first degree murder verdict form was the first one described to the jury. Moving to the next form, the court stated: "And you'll notice there's some yellow highlighting at the top. That says, This verdict form may only be used if the jury has unanimously found the defendant not guilty of first degree murder. [⁋] So you only answer on this form is if he's found not guilty of first degree murder. If he's found guilty of first degree murder, you're done with count one. You don't answer any other forms except the allegations." The court then stated the following: "Then you come to the third verdict form and, again, you have the highlighted instruction. This verdict form for manslaughter will only be used if the jury has unanimously found the defendant not guilty of first degree murder and not guilty of second degree murder. Okay? [⁋] So if you find him not guilty of first degree murder, but you find him guilty of second degree murder, you don't answer this one. Okay? You only get to voluntary manslaughter if he's not guilty of first ... degree murder or second degree. Okay?" (Italics added.)
Defendant's arguments on this point all flow from a central premise: that the trial court's oral statements "improperly compelled [the jury] to find [defendant] not guilty of first and second degree murder before they could 'get to' or 'even consider' his theory of the case that he committed voluntary manslaughter." But defendant takes the challenged statements out of context. The first instruction, that if the jury found defendant guilty of first degree murder, it would not "even consider" the lesser included offenses, is a legally correct conditional statement. Any ambiguity about the order of deliberations would have been resolved by the written copy of CALCRIM No. 640 provided to the jury for use during deliberations. (People v. Wilson (2008) 44 Cal.4th 758, 803 (Wilson) ["We of course presume 'that jurors understand and follow the court's instructions.' "].) The second instruction at issue, that the jury would "only get to voluntary manslaughter if he's not guilty of first ... degree murder or second degree" murder, was given as the court described the verdict forms to the jury. That instruction, standing alone, could be construed in the manner defendant argues on appeal. But the statement must be reviewed in the context of both when it was made and in relation to the court's other instructions that correctly explained the jury's control over the order of deliberations. On this record, we find no reasonable likelihood the jury construed the challenged instructions in a manner contrary to law. (Olivas, supra, 248 Cal.App.4th at p. 772.)
That the challenged instructions here were ambiguous rather than legally incorrect distinguishes this case from Kurtzman and Olivas. They are further distinguishable because legally incorrect instructions were given in those cases specifically in response to jury questions during deliberations, whereas here the court's ambiguous statements were made before deliberations began and were not reflected in the set of written instructions provided to the jury. (Olivas, supra, 248 Cal.App.4th at p. 774; Kurtzman, supra, 46 Cal.3d at p. 335.)
Defendant argues that the court's instructions "had the effect of removing an element of the crime of murder from the jury's consideration" because the prosecution had the burden to prove beyond a reasonable doubt that provocation and imperfect defense of another were lacking and the instructions on those concepts are contained in the voluntary manslaughter instruction as opposed to the jury instructions related to murder. But the jury received all of those instructions both orally and in writing, and the court's ambiguous oral instructions did not suggest the jury should disregard any of the other instructions given.
In People v. Wilson, supra, 44 Cal.4th 758, the Supreme Court stated the general rule that to the "extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control," but also noted that because juries are not informed of that rule there is a possibility that a jury might follow an oral instruction. (Id. at pp. 803-804.) Those concepts are ultimately irrelevant here because the trial court's oral instructions were ambiguous rather than erroneous, and they could be reconciled with the other instructions given.
E. Cumulative Prejudice
Defendant claims that the various errors he identifies are cumulatively prejudicial. "Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (Hill, supra, 17 Cal.4th at p. 844 .) "Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Ibid.) As we have found only one defect-defense counsel's failure to object to the prosecutor's closing argument about provocation-defendant's cumulative prejudice argument must fail.
F. Senate Bill 620 and the Firearm Use Enhancements
Defendant argues that the judgment must be conditionally reversed to allow the trial court to exercise its discretion to determine whether to strike the firearm enhancements that were mandatory when he was sentenced but are now discretionary. Effective January 1, 2018, trial courts now have discretion to strike or dismiss section 12022.5 and section 12022.53 enhancements "in the interest of justice pursuant to Section 1385." (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, § 2.) The Attorney General acknowledges that the ameliorative amendments potentially apply to defendant under the reasoning of In re Estrada (1965) 63 Cal.2d 740 because his sentence is not yet final. (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1109.) But the Attorney General argues remand is unnecessary because it is clear from the record that the trial court would not have struck either enhancement even if it could have. (Id. at p. 1110 ["Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so."].)
When imposing sentence, the trial court addressed the victim's family, stating that while "there's nothing I can do to bring David back," the "only thing I can do at this point is to do what I can to ensure that [defendant] never gets out of prison." The court described the crime as a "senseless killing that didn't have to occur." The court also imposed the 10-year aggravated term for the section 12022.5 firearm enhancement "based on the fact that the defendant actually fired the gun and also that he fired a gun into a parking lot full of people without regard to injury or human life." The court elected to run all sentences consecutive, informing the victim's family that its sentencing choice would "determine that [defendant] who's in his 30s now most likely will not be eligible for parole until he's over a hundred years old." We find the record here clearly indicates the trial court would not have struck either firearm use enhancement even if at the time of sentencing it had the discretion to do so. No purpose would be served by a remand for reconsideration of the firearm enhancements.
G. Remand for Franklin Hearing
The parties agree that remand is appropriate to provide defendant an opportunity to create a record of information relevant for a future youth offender parole hearing. Section 3051 subdivision (b)(3) provides in relevant part that a "person who was convicted of a controlling offense that was committed when the person was 25 years of age or younger and for which the sentence is a life term of 25 years to life shall be eligible for release on parole at a youth offender parole hearing during the person's 25th year of incarceration." At that hearing, the Board of Parole Hearings will need to" 'give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.' (§ 4801, subd. (c).)" (Franklin, 63 Cal.4th at p. 277.) In Franklin, the Supreme Court determined that a limited remand is appropriate in cases such as this where the judgment is not yet final to allow defendant to "put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing" relating to his characteristics and circumstances when he committed the murder. (Franklin, at p. 284.) As defendant was 25 when he committed the conviction offenses, we will remand the matter for that limited purpose.
III. DISPOSITION
The judgment is affirmed, and the matter is remanded for the limited purpose of providing defendant an opportunity to make a record of information for use at a future youth offender parole hearing.
WE CONCUR: Elia, Acting P. J. Danner, J.