Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA246275, Bob S. Bowers, Jr., Judge.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, Acting P.J.
Archie L. Braggs was convicted of first degree murder, with a special circumstance finding that it was an intentional killing within the meaning of Penal Code section 190.2, subdivision (a)(22), and additional firearm and prior conviction findings (§§ 12022.53, subds. (b), (c), (d), 667, subd. (a)(1), 1170.12, subds. (a)-(d)). He was sentenced to state prison for life without the possibility of parole, plus 37 years to life. Braggs appeals, claiming there were instructional and evidentiary errors and challenging the sufficiency of the evidence to support the special circumstance finding and gang enhancement. We reject his claims of error and affirm the judgment.
All section references are to the Penal Code.
FACTS
Sixteen-year-old Alonso Finister was riding his bike with his friend, Darnell Waters, sitting on the handlebars when (at the intersection of 80th Street and Hoover) they heard a car approach, looked back, and saw two African-American men in the car. One of the men got out and started shooting at the boys. Finister and Waters fell off the bike and ran in opposite directions. Waters fled to the safety of a nearby house but Finister fell in the middle of the intersection -- at which point one of the men from the car walked over to Finister and shot him six times, killing him. The shooting occurred in an area claimed by the Eight Trey Hoovers gang.
There were several eyewitnesses. Veronica Rucker, who was on Hoover between 80th and 81st Streets, heard the shots, saw Finister run and fall, and saw the man stand over Finister and shoot him. Richard Aker and Charlie Celaya were on Hoover about a block away from 80th Street when they heard screeching tires and “some kind of crash,” looked up to see Finister lying in the intersection, a gold Buick parked about 15 yards away, and an African-American man shooting Finister as he lay on the ground. The shooter got into the Buick and the car drove toward Aker and Celaya, who made eye contact with the passenger as he drove by. Aker wrote down a partial license plate number which matched a Buick owned by Braggs (but registered to his aunt because Braggs did not have a driver’s license). Aker identified Braggs from two photographic lineups.
Ramon Merrill and Phillip Bialeck were in a truck on Hoover when they saw Finister lying in the street. Merrill drove his truck in front of Finister to stop oncoming traffic from hitting him, and both Merrill and Bialeck saw the Buick stopped near Finister. Bialeck wrote down the complete license plate number which matched the vehicle owned by Braggs.
Braggs was charged with the murder of Finister and the attempted murder of Waters (the attempted murder count was dismissed before trial), with allegations that Braggs had intentionally killed Finister while Braggs was an active participant in a criminal street gang, that the murder was carried out to further the activities of the gang, that at the time of the crimes Braggs was released from custody on bail or his own recognizance, that the crimes were committed for the benefit of a street gang, that Braggs personally and intentionally discharged a firearm proximately causing death, and that Braggs had suffered two prior serious felony convictions. (§§ 187, subd. (a), 664, 190.2, subd. (a)(22), 12022.1, 186.22, subd. (b)(1)(A), 12022.53, subds. (b), (c), (d), 667, subd. (a)(1), 1170.12, subds. (a)-(d).)
At trial to a jury, the People presented evidence of the facts summarized above, plus gang evidence discussed below (Braggs is an admitted member of the Rolling 60’s Neighborhood Crips). Both Aker and Celaya identified Braggs at trial (and had previously identified him at live lineups). The jury rejected Braggs’s misidentification defense and convicted him as noted at the outset.
DISCUSSION
I.
Braggs contends the trial court’s circumstantial evidence instruction was incomplete. We disagree.
A.
The jury was instructed according to CALJIC No. 2.01 as follows: “[A] finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.
“Also, if the circumstantial evidence permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to his guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
Braggs’s two-prong contention is that the court should have told the jury that this instruction applies to expert testimony (because it is a form of circumstantial evidence), and that the instruction was incomplete because it failed to explain that the same rule of interpretation applies to direct evidence, including eyewitness testimony. We disagree.
B.
Because CALJIC No. 2.01 is a correct and complete statement of the law (People v. Kipp (1998) 18 Cal.4th 349, 375), Braggs’s failure to request additional instructions waives the issue for appeal. The case relied on by Braggs, People v. Smith (1992) 9 Cal.App.4th 196, 207, footnote 20, is inaposite because the error asserted in Smith consisted of “a breach of the trial court’s fundamental instructional duty” -- which, in light of Kipp, is not the case here.
More to the point, there is no merit to Braggs’s claim that expert testimony should have been mentioned when this instruction was given. CALJIC No. 2.01 wasn’t even required in this case because the prosecutor did not substantially rely on circumstantial evidence to prove the case against Braggs (People v. Anderson (2001) 25 Cal.4th 543, 582), and the fact that the defense presented circumstantial evidence is irrelevant because this instruction only applies to evidence presented to prove the defendant’s guilt (ibid.). And, for the reasons explained in People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187 and People v. Anderson (2007) 152 Cal.App.4th 919, 931, Braggs is mistaken in his claim that the instruction should have stated that the same rules apply to direct evidence.
Because we dispose of this issue on the merits, we do not reach Braggs’s claim that trial counsel’s failure to request additional instructions deprived Braggs of the effective assistance of counsel at trial.
Assuming as Braggs contends that an expert’s opinion is a form of circumstantial evidence (1 Witkin, Cal. Evidence, Opinion Evidence, § 1, p. 528 (4th ed. 2000) [an opinion is an inference from facts observed]), the point is that the jury was fully instructed on both circumstantial evidence and expert testimony, and also about reasonable doubt, evaluating witness’s testimony, eyewitness identification, and expert testimony. (CALJIC Nos. 2.91, 2.20, 2.21.1, 2.22, 2.27, 2.80, 2.81, 2.82, 2.90, 2.92.) . (People v. Bender (1945) 27 Cal.2d 164, 176.)
Our conclusion that there was no instructional error makes it unnecessary to consider Braggs’s assertion that the claimed error violated his constitutional rights.
II.
Braggs contends his motion for a mistrial should have been granted because the prosecutor elicited evidence that Braggs called trial counsel (Phillip Deitch) on the day of the shooting. We disagree.
A.
Braggs’s mother (Victoria Madison), called by the prosecutor, testified that she went home from work on the day of the killing after she learned that the police were investigating her son and his car and searching her house. On direct, the prosecutor asked her if Braggs “had a conversation with anyone on the day of the [crimes] after the time you got home from work. Do you know if he spoke with anybody at all telephonically?” She said “yes,” and in response to follow-up questions identified Phillip Deitch. Trial counsel objected, and outside the presence of the jury claimed the question and response had improperly created “an inference of guilty knowledge.” A defense motion for a mistrial on that ground was denied, the trial court noting that the jury would not necessarily draw an inference of guilt from Madison’s testimony.
To the contrary, said the trial court, “[i]t implies a certain sophistication and savvy to me. [¶] The bottom line is his house is searched and everyone in the neighborhood knew it. And I think it was a pretty good idea to speak to counsel.”
B.
The decision whether to grant or deny a motion for a mistrial is one within the trial court’s discretion, the issue being whether the defendant’s right to a fair trial has been irreparably damaged. (People v. Welch (1999) 20 Cal.4th 701, 749; People v. Staten (2000) 24 Cal.4th 434, 466; People v. Ayala (2000) 23 Cal.4th 225, 282.) According to Braggs, the motion should have been granted in his case because the evidence -- the fact of his call to his lawyer -- violated his state and federal privilege against self-incrimination. We disagree.
The simple fact that he called his lawyer while his house was being searched does not violate his privilege against self-incrimination (the witness merely described Braggs’s conduct, not anything he said to counsel or anyone else) and it does not necessarily support an inference of consciousness of guilt (since it was a perfectly reasonable phone call to make under the circumstances). There is nothing about this testimony to suggest that it affected Braggs’s right to a fair trial.
III.
Braggs contends there is insufficient evidence to support the special circumstance finding (§ 190.2, subd. (a)(22)). We disagree.
A.
Section 190.2, subdivision (a)(22), requires a showing that the “defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined by subdivision (f) of section 186.22, and that the murder was carried out to further the activities of the criminal street gang.” (Emphasis added.) Subdivision (f) of section 186.22 defines “criminal street gang” to mean “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [certain specified crimes], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”
B.
Substantial evidence (People v. Osband (1996) 13 Cal.4th 622, 690; People v. Young (2005) 34 Cal.4th 1149, 1181) supports every element of the special circumstance finding.
Braggs is an admitted and documented member of the Rolling 60’s Neighborhood Crips who associated with other members of the gang. He has a Rolling 60’s tattoo on his arm. He worked as a bodyguard for a rapper who was a member of the Rolling 60’s. His Buick, the car used in this murder, was purchased from another Rolling 60’s member. During a recorded jail visit, Braggs used the derogatory term “Sloovers” to refer to Hoovers gang members who were in the visiting room (the victim was a member of the Hoovers gang), and Braggs told his visitor that he would “get them” if the Hoovers members were “throwing up Hoovers” (throwing gang signs associated with the Hoover gang). In addition, the gang expert testified that the Rolling 60’s Neighborhood Crips and Eight Trey Hoovers were enemies, that the two gangs were engaged in a gang war that had been going on for at least 20 years, and that the gangs routinely attacked each other by shootings and assaults. Quite plainly, Braggs was an active and fully immersed member of the Rolling 60’s.
Similarly, substantial evidence supports the jury’s finding that the murder was committed to further the activities of the Rolling 60’s gang -- the fact that the victim was a member of a rival gang, Braggs’s statements to his jail visitor, and the fact that three days before this murder, the victim had been contacted by the police in Hoovers’ territory while he was in the company of other Hoovers’ members. As the gang expert explained, someone entering a rival gang’s territory assumes that a person of the requisite age and ethnicity is a member of the rival gang -- the point being that when Braggs entered the Hoovers’ territory, he assumed that Finister was a member of the Hoovers, and that he shot him for that reason.
The gang expert also testified that the primary activities of the Rolling 60’s (which has about 3,000 documented members) include murder, attempted murder, assaults and robberies (all are among the crimes specified in section 186.22, subdivision (e)). In addition, the prosecutor presented evidence that Kenneth Glass and Kenneth Gilliam, both members of the Rolling 60’s, had been convicted of assaulting a police officer (Glass) and attempted murder and assault with a firearm (Gilliam).
Braggs’s contention that there was no evidence to prove he knew Kenneth Glass or Kenneth Gilliam fails because it is based on the false assumption that the prosecutor had to prove this fact. There is no such requirement in section 190.2, subdivision (a)(22). (People v. Loeun (1997) 17 Cal.4th 1, 10 [nothing in the statutory scheme suggests the Legislature intended that the prosecution could prove a pattern of criminal activity only if it could show that a defendant had knowledge of prior crimes committed by fellow gang members].)
The expert opined that a violent confrontation or shooting would be expected if armed Rolling 60’s members were in Eight Trey Hoovers territory and encountered an Eight Trey Hoovers member. Indeed, the expert said the purpose of a Rolling 60’s member driving into Eight Trey Hoovers territory at 8:45 in the morning was to catch an Eight Trey Hoovers gang member “slipping” (not paying attention to his surroundings) and shoot him. And, said the gang expert, a shooting of an Eight Trey Hoovers member by a Rolling 60’s member in Hoovers’ territory would benefit the Rolling 60’s gang by boosting its reputation as killers, and by instilling fear in the community and in the Eight Trey Hoovers gang.
For similar reasons, we reject Braggs’s related contention that the gang enhancement (§ 186.22, subdivision (b)) is not supported by substantial evidence. As we have shown, the evidence shows a specific intent to promote the gang’s criminal conduct, and no more is required. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [the statute does not require a specific intent to benefit the gang, only a specific intent to promote, further or assist in any criminal conduct by gang members].)
This was not a close case.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.