Opinion
F053558
2-19-2009
THE PEOPLE, Plaintiff and Respondent, v. SOKMORN CHEA, Defendant and Appellant.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Procedural History
Appellant Sokmorn Chea was convicted by jury of two counts of first degree murder (Pen. Code, § 187, subd. (a)), in the gang-related killing of Nath Ouch and her unborn child. The jury also found true multiple-murder and criminal-street-gang special circumstances within the meaning of section 190.2, subdivision (a)(3) and (22); that Chea had personally and intentionally discharged a firearm in the commission of the offense (§ 12022.53, subds. (d) & (e)(1); § 12022.5, subd. (a)(1); § 12022.53, subds. (b) & (e)(1)); and that the murders had been committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). Chea was sentenced to two consecutive terms of life without possibility of parole, plus an additional consecutive 50-years-to-life term for use of the firearm (25 years on each count). The gang enhancement was stricken. Chea was tried jointly with codefendants Sokol Yann (case No. F053647), Boualy Mangsanghanh (case No. F054382), and Jonathan Perkins. Yann and Mangsanghanh were convicted of the murders; Perkins was acquitted on all counts.
All statutory references are to the Penal Code unless otherwise noted.
Factual Summary
Chea is a member of the criminal street gang known as the Asian Boyz (Boyz). At the time of the murders, the gang was at war with a rival gang known as the Tiny Rascal Gang (TRG). There had been at least 30 shootings involving these two gangs within four years preceding the murders.
Several days prior to the murders, Boyz member Keo Som was jumped and assaulted by members of the TRG. In retaliation for the assault, several armed Boyz members executed a drive-by shooting in TRG territory. The TRG immediately retaliated with a drive-by shooting directed at Soms parents house. After these events, Yann, a senior member of the gang, borrowed a loaded .45-caliber semiautomatic handgun from fellow Boyz member Victor Alvarez "[f]or protection."
On the night of the murders, Boyz members met at Yanns home. Chea, Yann, Mangsanghanh, Som, Perkins, Sopheak Chhang, Peter Khounvixay, Panya Channita, and Jose Perez were all present, along with other gang members. The gang, including Chea, discussed the recent shootings and the need to retaliate against the TRG. According to Som, Yann and Mangsanghanh also talked about the need to retaliate for the death of Boyz member Olina Mung, who had been killed a year earlier by the TRG. According to Mangsanghanh, the gang was talking "trash" about the TRG.
Alvarez was not there the night of the murders, but his gun was present. Som, Channita, and Khounvixay left to find more guns. They returned with an AK-47 and ammunition obtained from Boyz member Laja Oupathame. Chea racked the AK-47 and looked "mad." Perez was armed with Alvarezs .45-caliber handgun.
Chea, Perez, Chhang, and Mangsanghanh left Yanns house to do the shooting. Mangsanghanh drove to Easterby Elementary School in Fresno and parked across the street from a nearby apartment complex known to be a TRG hangout. Chea and Perez got out of the car, telling Mangsanghanh to wait. Mangsanghanh heard numerous gunshots. Chea and Perez ran back to the car with the guns and Mangsanghanh drove off.
A number of young women were in the parking lot of the apartment complex across from Easterby. They testified that around midnight they were fired at as they sat in or around cars in the parking lot. Nath Ouch, who was eight months pregnant, was shot in the back and died from her wounds. Her unborn child also died.
A large number of bullets and spent casings were found at the scene of the shooting and at the elementary school. These were traced back to the AK-47 and the .45-caliber handgun. There was bullet damage to signs and cars near the site, suggesting the shots had come from Easterby. Alvarez retrieved his gun after the murders, which ultimately was discovered by police under the seat of Alvarezs truck.
When interviewed by police, Mangsanghanh became angry and told police, "fuck that pregnant roach bitch, she got what she deserved." "Roach" is a derogatory term used to refer to TRG members. Mangsanghanh told police that the shooting was retaliatory. Ouch was not a gang member, but she was the wife of a TRG member who, ironically, was implicated in the murder of Olina Mung.
The prosecutions gang expert Detective Villalvazo testified that, in his opinion, the murders were done to benefit the Boyz by sending a message to the TRG that they were not to mess with the Boyz. Villalvazo also testified that some of the gangs primary activities were to engage in criminal acts such as possession of firearms, firing at residences, attempted murder, murder, stealing cars, drug sales, and intimidation of witnesses. There was also proof of a number of recent predicate gang offenses committed by Boyz members. There is no dispute that the TRG and the Boyz are criminal street gangs active in the United States and, specifically, in Fresno.
Within 24 hours of the murders, Chea left Fresno, traveling to St. Paul, Minnesota, using a bus ticket purchased in another name. He was arrested in St. Paul after the car he was riding in was stopped by law enforcement, when his true identity was discovered.
Alvarez testified pursuant to a plea agreement, according to which he entered a plea of guilty to accessory after the fact in exchange for his testimony. Som, Khounvixay, Channita, and Oupathame also negotiated plea agreements. They entered pleas of guilty to voluntary manslaughter in exchange for their testimony. Perez remained a fugitive at the time of trial. Chhang was declared incompetent to stand trial.
Discussion
I. Minnesota traffic stop
Chea contends it was error for the trial court to allow St. Paul police officer John Keating to testify that Chea had offered him $200 to let him go after Chea had been detained in the St. Paul traffic stop. Chea contends the statement is the fruit of a Fourth Amendment violation and is therefore subject to exclusion. The trial court denied Cheas pretrial motion to suppress the evidence. The motion was renewed at trial and again denied. The court found that the attempt to bribe the officer was unrelated to the traffic stop or subsequent search of Cheas pockets.
Whether a persons statement has been purged of the taint of prior illegality "does not hinge on a simple `but for analysis, but rather, `must be answered on the facts of each case." (United States v. Thompson (2d Cir. 1994) 35 F.3d 100, 105, quoting Brown v. Illinois (1975) 422 U.S. 590, 603.) Generally, the courts look to a number of factors to determine whether the taint has been purged, including the temporal proximity of the illegal act and the statement made; the presence of intervening circumstances; and the nature, purpose, and flagrancy of the official misconduct. (Kaupp v. Texas (2003) 538 U.S. 626, 633; Brown v. Illinois, supra, 422 U.S. at pp. 603-04.)
We agree with the trial courts finding that, even if the stop or the subsequent search was suspect under the Fourth Amendment, the taint of any illegal conduct had been purged. Chea was a passenger in the stopped car and was asked to indentify himself. He gave the officer a name belonging to someone else and said he had no identification. When the officer entered the name into his computers database and retrieved a picture of the person matching the name, it was immediately apparent that person was not Chea. Chea was placed under arrest for falsely identifying himself and was searched. The officer found a wallet with a Fresno library card with Cheas name and a credit card with someone elses name. The officer checked the photo database and discovered Cheas true name. It was only then that Chea offered the officer $200 to let him go. The statement, a bribe, violated Minnesota state law. (Minn. Stat. § 609.42.) This evidence supports the trial courts conclusion that the challenged statement resulted from an independent act, which purged any taint from illegal police conduct. (Brown v. Illinois, supra, 422 U.S. at pp. 601-602.)
Although Chea attempted to characterize the bribe as an attempt to pay an outstanding bench warrant for a parking ticket, this attempt was discredited by evidence that officers in Minnesota do not accept payment of outstanding warrants during traffic stops. In any event, on appeal, all factual inferences are drawn against Chea.
In any event, even if this evidence is insufficient to attenuate the taint of illegal conduct, the admission of the statement was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) There was ample evidence of Cheas guilt. Numerous witnesses placed Chea at Yanns house prior to the shootings, heard him talk about the intended shootings, saw him rack the AK-47, and watched him leave with Mangsanghanh, Chhang, and Perez for the purpose of retaliating against the TRG. Witnesses said Chea angrily and aggressively pushed for an act of retaliation. Mangsanghanhs testimony placed Chea at the scene, armed. The guns were traced to the killings. Although Chea claimed he was singing karaoke with his brother at the time of the shooting, his brother denied this occurred. In addition, Chea left Fresno for St. Paul within 24 hours of the shooting, using a false name on his bus ticket. We are confident that exclusion of the statement would have made no difference in the jurys verdict. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008 [under Chapman standard, to avoid reversal of judgment, People must prove beyond reasonable doubt error did not contribute to verdict obtained].)
II. Admission of photos
A. Evidence Code section 352
Although the Attorney General argues that Chea improperly has joined in the arguments of his codefendants, Mangsanghanh and Yann, we will allow the joinder and address these additional contentions on the merits. The first contention is that the trial court abused its discretion when it allowed the admission of two autopsy photographs of Ouchs unborn fetus. One of the photos showed the fetus removed from the mothers womb but still in the amniotic sack. The second showed the fetus removed from the amniotic sack and laying in a fetal position. The pictures were published to the jury during the testimony of the coroner concerning the cause of death and the viability of the fetus.
On appeal, Chea joins in Mangsanghanhs argument that the photos were more prejudicial than probative because the cause of death and the fact that the fetus was viable were not disputed facts. The defense had offered, but the prosecutor refused, a stipulation that the fetus was viable and had died as a result of the mothers injuries. The trial court ruled that the pictures were to be admitted because they were relevant and not unduly prejudicial. Chea now claims that allowing the pictures was an abuse of the trial courts discretion under Evidence Code section 352. Chea also joins in Yanns argument that the admission of the photos was so egregious that he was denied due process of law.
Having reviewed the photos in question, we conclude the trial court did not abuse its discretion in determining that the risk of undue prejudice did not substantially outweigh the photos probative value. A court must exclude evidence under Evidence Code section 352 when the evidence tends to evoke an emotional bias against the defendant and has very little impact on the issues. Undue prejudice is not the prejudice that naturally flows from relevant, highly probative evidence. (People v. Salcido (2008) 44 Cal.4th 93, 148; see also People v. Karis (1988) 46 Cal.3d 612, 638 [evidence adverse to defendants case does not render it prejudicial within meaning of Evid. Code, § 352].) "`Relevant evidence means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Whether the fetus was viable at the time of death was an issue before the jury. The prosecutor was not required to enter into a stipulation to avoid having the jury consider the full impact of the evidence. (People v. Garceau (1993) 6 Cal.4th 140, 182 [prosecution not required to accept stipulation if effect is to deprive prosecutions case of its forcefulness; prosecution not obligated to sanitize case], disapproved on other grounds in People v. Yeoman (2003) 31Cal.4th 93, 117-118.)
While we understand why the defendants wished to minimize the nature of the crime charged in count II, the prosecutor was not required to cooperate with the defense strategy. The evidence presented was not unduly gory. (People v. Heard (2003) 31 Cal.4th 946, 976, 977.) The fetus was in a natural pose. There is no question this was unpleasant evidence and harmful to the defense; however, the pictures did not create the type of prejudice that flows from relevant, highly probative evidence. "The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors." (People v. Ramirez (2006) 39 Cal.4th 398, 454.) There is also no merit to the argument that the photographs became cumulative once the coroner testified about the fetuss viability and to the cause of death. Our Supreme Court consistently has held that photos of a murder victim need not be excluded as cumulative to other evidence in the case. (See People v. Cole (2004) 33 Cal.4th 1158, 1199; People v. Heard, supra, 31 Cal.4th at p. 978; People v. Gurule (2002) 28 Cal.4th 557, 625.) The trial court did not abuse its discretion, and we conclude there is no denial of due process.
Last, there is no prejudice under either the traditional abuse-of-discretion standard or the stricter Chapman constitutional standard since there is ample evidence of guilt. The jurys acquittal of Perkins shows that it was not swayed by passion and prejudice, but carefully weighed the evidence related to each defendant.
B. Projection in the courtroom
Chea also claims that he was prejudiced when the prosecutor violated the courts order and projected the photos of the fetus onto the screen during closing argument. At the time the evidence was admitted, the trial court ordered that the pictures were to be published only to the jury and were not to be displayed in the courtroom. The court reasoned that family members of the victim might be offended. The prosecutor, apparently believing the ruling was limited to the time of admission, displayed the photos for five to 10 seconds during closing argument. Counsel for the defense objected and the pictures were immediately removed from the screen. The court denied defense counsels motion for a mistrial. We see no abuse of discretion. The order, which was intended to protect the victims family, was violated innocently. The jury had already seen the photographs. The short time the pictures were displayed on the large screen was not likely to prejudice the jury.
III. Prosecutorial misconduct
Chea claims the prosecutor engaged in prejudicial misconduct during closing argument when he (1) violated the court order not to display pictures of the fetus on the large screen in the courtroom, and (2) when he told the jury that the defendants had been given the full protection of the criminal justice system, but that the defendants had not afforded the same protections to Ouch and her child. These arguments lack merit.
The full statement was as follows: "These defendants have been afforded every protection and right the best criminal justice system in this world has to afford at every step of the way. The evidence has gotten us to a point where they are proved well beyond any reasonable doubt to be guilty of the charged offenses. They didnt afford Nath Ouch or her child the protections they had received. On February 1st, because of nothing more than petty gang rivalry, they gunned down a pregnant woman. Let that sink in."
Whether a prosecutor is guilty of misconduct must be determined in light of the facts in each case. (People v. Bryden (1998) 63 Cal.App.4th 159, 182.) The test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade either the court or the jury. (People v. Rowland (1992) 4 Cal.4th 238, 274.) "What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant." (People v. Benson (1990) 52 Cal.3d 754, 793.)
First, even assuming for arguments sake that it was misconduct for the prosecutor to violate the courts order and to project the photos of the fetus in the courtroom, there is no prejudice for the reasons we have already described. The jury was entitled to and already had seen the pictures. There was ample evidence of guilt and no suggestion that the jury was swayed impermissibly by prejudice or passion in reaching its verdict.
Second, the statements made by the prosecutor about the protections given the defendants did not invite the jury to convict them because they exercised their constitutional rights or were afforded due process of law. Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Lucas (1995) 12 Cal.4th 415, 473.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, a defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Gurule, supra, 28 Cal.4th at p. 627.)
The statements here, when read in context, emphasize only that the defendants were sitting in the courtroom participating in a criminal justice system which protects their rights and affords them dignity, while their victims had been gunned down while vulnerable and without protection. These comments are not improper. Further, even if the comments were improper, they were not prejudicial. The jury was instructed on all aspects of the case, including its responsibility to acquit unless there was no reasonable doubt of guilt. As we have stated, the evidence of guilt was overwhelming and the jury carefully considered the evidence with respect to each defendant. There is no reasonable likelihood that the jury applied the prosecutors comments in an improper manner.
IV. Hearsay statements of unknown gang members
At trial, Detective Villalvazo testified as a gang expert on the nature of gang membership and how gangs, the Boyz specifically, retaliate for attacks on them by rival gangs. In addition, Villalvazo testified that one of the primary activities of the gang was to engage in the criminal offenses listed in section 186.22, subdivision (e). When asked about the foundation for his testimony, Villalvazo testified about his experience as a patrol officer in Fresno, his experience as a gang officer, his many investigations of gang crimes, and about his contact with gang members generally. Villalvazo indicated that his contact with gang members varied from responding to calls, to investigating crimes, to consensual contact with known gang members. He characterized these contacts as both formal and informal. For example, Villalvazo or other officers initiated some of the contacts. Gang members also initiated some of the contacts. Villalvazo admitted he had no academic training in the sociology of gangs, but stated that his opinions were based on real-world experience, his review of police reports and records, and his almost-daily interaction with gang members.
Yann claims that allowing this hearsay evidence to serve as the foundation for Villalvazos expert opinions violated Yanns Sixth Amendment right to confront and cross-examine witnesses as defined by the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Under Crawford, and the later decision of Davis v. Washington (2006) 547 U.S. 813, the admission of testimonial out-of-court statements is barred by the confrontation clause of the Sixth Amendment unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.
There is nothing in Crawford or Davis that prohibits a gang expert from relying on hearsay as a basis for his or her opinions that identify a person as a gang member or about gang behavior generally. (See, e.g., People v. Ramirez (2007) 153 Cal.App.4th 1422 (Ramirez); People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57; People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas).) "The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay." (Thomas, supra, 130 Cal.App.4th at p. 1209, citing People v. Gardeley (1996) 14 Cal.4th 605, 618-619; Evid. Code, § 801, subd. (b).) Crawford does not undermine this established rule. (Thomas, supra, at p. 1210.) Since a gang expert "is subject to cross-examination about his or her opinions" and "the materials on which the expert bases his or her opinion are not elicited for the truth of their contents" but rather "are examined to assess the weight of the experts opinion," this evidence does not offend the Sixth Amendment. (Thomas, supra, at p. 1210.) The confrontation clause "`does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Ibid., quoting Crawford, supra, 541 U.S. at p. 59.) "Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned." (Ramirez, supra, 153 Cal.App.4th at p. 1427, citing Thomas, supra, 130 Cal.App.4th at p. 1210.) Thomas and Ramirez are correctly decided. We conclude there is no Sixth Amendment violation.
V. Sufficiency of the evidence: primary activity of gang
Joining in the arguments raised by codefendant Yann, Chea raises two related arguments challenging the evidence that one of the primary activities of a gang is the commission of criminal offenses. First, Chea argues that the evidence was insufficient to prove the "primary activities" element of the gang special circumstance and the gang enhancement. He contends that Villalvazo did not know enough about the other activities of Boyz gang members to be able to establish that the gangs primary activity was criminal. Second, Chea argues that it was an abuse of discretion to allow Villalvazo to testify about the gangs primary activity because he lacked sufficient foundation for his expert opinion due to his lack of knowledge about the other activities gang members engage in.
An appellant who raises a challenge to the sufficiency of the evidence to support a conviction must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the verdict and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (See People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Augborne (2002) 104 Cal.App.4th 362, 371 [applying standard to gang enhancement].)
Section 186.22, subdivisions (e) and (f), require that the trier of fact find that one of the alleged criminal street gangs primary activities is the commission of one or more of the crimes listed in the gang statute. The requirement is satisfied by the testimony of a police gang expert, such as Villalvazo, who expresses an opinion that the primary activities of the group in question include commission of one or more of the statutorily listed crimes. (See People v. Gardeley, supra, 14 Cal.4th at pp. 611, 620; People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith).) "Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the groups primary activities. Both past and present offenses have some tendency in reason to show the groups primary activity (see Evid. Code, § 210) and therefore fall within the general rule of admissibility (id.; § 351)." (Sengpadychith, supra, at p. 323.)
The statute reads: "(e) As used in this chapter, `pattern of criminal gang activity means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [¶] ... [¶] (f) As used in this chapter, `criminal street gang means 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 the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), 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." (§ 186.22, subds. (e) & (f).)
Chea argues that the absence of evidence concerning how the gang members spend their average day precludes a conclusion that the gangs primary activity is criminal. There is no merit to this argument. As the Attorney General observes, the statute does not require that there be one primary activity. It only requires that one of the primary activities be criminal. As the California Supreme Court explained in Sengpadychith:
"The phrase `primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups `chief or `principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members.... `Section 186.22 ... requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s]...." ( Sengpadychith, supra, 26 Cal.4th at p. 323, quoting People v. Gamez (1991) 235 Cal.App.3d 957, 970-971.)
It is not how the individual gang members spend their time that is determinative, but how the gang together spends its time that is determinative. The Sengpadychith court concluded that the same type of proof as offered here was sufficient to prove this element: (1) proof that gang members consistently and repeatedly engage in criminal activity specified in the gang statute; and (2) testimony of a police gang expert based on conversations with gang members, and personal investigations of crimes committed by gang members, that the gang is primarily engaged in committing statutorily enumerated felonies. (Sengpadychith, supra, 26 Cal.4th at p. 324.) As an intermediate appellate court, we are bound to follow the lead of our highest state court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The evidence provided by Villalvazo and the other police officers, in addition to the gang members themselves, about the number and seriousness of the gangs criminal activities was sufficient to prove that one of the gangs primary activities is the commission of the felonies enumerated in the statute. There was no need for the jury to quantify the hours spent by gang members in non-crime-related endeavors or to compare those hours to the time spent in the planning and commission of the enumerated felonies. There was ample evidence of the types of crimes, most of which are listed in section 186.22, committed against the TRG by the Boyz in an attempt to establish their superiority. In fact, a strong inference can be drawn just from the evidence recounting the days leading to and the day of the shootings that a primary Boyzs activity is felony assault of TRG members and associates.
Villalvazos testimony is the type of evidence required in order to prove primary gang activity. As a result, it was not an abuse of discretion to admit his testimony, even though he could not testify about what gang members did when they were not committing crimes or hanging out planning acts of retaliation against the TRG.
VI. Refusal of special instruction
At trial, Chea asked that the trial court give the following limiting instruction to the jury:
"You have heard evidence that defendant, Boualy Mangsanghanh, made a derogatory statement about the victim to Detectives Alcorn and Von Euw outside her parents restaurant on February 3, 2006. You may consider that evidence only against her, not against any other defendant."
The statement referred to in the requested instruction is Mangsanghanhs statement calling the victim a "pregnant roach bitch," who "got what she deserved" for "hanging around with those roaches ...." The trial court refused to give the instruction on the grounds that it was duplicative of standard instructions, Judicial Council of California, Criminal Jury Instructions (CALCRIM) Nos. 304 and 305, which it modified and gave.
Under appropriate circumstances, a trial court may be required to give instructions requested by the defense and relevant to its theory of the case if legally correct and supported by some evidence. (People v. Whisenhunt (2008) 44 Cal.4th 174, 220.) However, the trial court may reject pinpoint instructions if they are duplicative of other instructions. (People v. Brown (2003) 31 Cal.4th 518, 570; People v. Gurule, supra, 28 Cal.4th at p. 659.) The correctness of jury instructions is determined from the entire charge of the court. (People v. Harrison (2005) 35 Cal.4th 208, 252.)
CALCRIM No. 305 reads: "You have heard evidence that defendant __________ < insert defendants name> made a statement (out of court/before trial). You may consider that evidence only against (him/her), not against any other defendant." We presume the jury followed its instruction. (People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Fauber (1992) 2 Cal.4th 792, 823.) The statement in question was attributable only to Mangsanghanh, who was not a gang member. It was made after the murders, when she was alone and being interviewed by police, and not made as part of the conspiracy. The context of the statement reflects that Mangsanghanh made the statement because she was angry and upset that her car was about to be towed. It further clarifies Mangsanghanhs emotions related to the murder by the TRG of her friend Mung. She made no reference to anyone else in the statement, including her codefendants. Unlike People v. Rollo (1977) 20 Cal.3d 109, 123, footnote 6, the instruction given did not need to clarify the context or meaning of the statement. It was clear which defendant made the statement and that no other defendants were involved in its declaration.
In any event, instructional error is not reversible unless an examination of the record establishes a reasonable probability that the error affected the outcome. (People v. Breverman (1998) 19 Cal.4th 142, 165.) The jury was instructed properly on how to consider the statements of the codefendants. There is no reason to believe that the jury attributed Mangsanghanhs statements to Chea. Under any standard, there is no prejudice.
VII. Cumulative prejudice
Having reviewed the entire trial record and considered the arguments made, we conclude there is no cumulative prejudice. We have rejected nearly all of the contentions of error raised by Chea and his codefendants in their separate appeals. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [no cumulative error where court rejects nearly all assignments of error; trial need not be perfect to be fair].) Chea was provided a fair trial. "[T]his court will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844.)
VIII. Alleged sentencing error
The Attorney General argues that the abstract of judgment does not accurately reflect the judgment pronounced because it does not reflect the two consecutive terms imposed for the arming enhancements. The abstract shows that a sentence of 25 years to life with the possibility of parole was imposed on counts I and II; however, the reference statute cited is incorrect. Section 12022.53, subdivision (g), is listed as the statute authorizing the two consecutive determinate terms on both the clerks minute order and the abstract. There is also a notation on page two of the abstract stating that the "12022.53(g) enhancement in Count 1 & 2 of 25 years to life is to be served consecutively in each count." The correct reference statute is section 12022.53, subdivision (d). The section cited, subdivision (g), prohibits the grant of probation and/or the stay or striking of any enhancement for persons falling within the limits of section 12022.53. The abstract and clerks minute order must be corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to modify the clerks minute order of sentencing and the abstract of judgment to reflect the correct enhancement statute authorizing the consecutive 25-year-to-life indeterminate terms. Corrected copies shall be distributed to the appropriate authorities.
WE CONCUR:
Vartabedian, Acting P.J.
Levy, J.