Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Michelle R. Rosenblatt and David S. Milton, Judges. Los Angeles County Superior Ct. No. GA064916
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Courtney.
Frank Di Sabatino for Defendant and Appellant Taylor.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellants Dion Allen Courtney & Sean Michael Taylor appeal from judgments entered following a jury trial in which they were convicted of first degree murder; willful, deliberate, and premeditated attempted murder; and possession of a firearm by a felon, with gang and firearm-use findings. Appellants raise numerous contentions, including sufficiency of the evidence and evidentiary and sentencing errors. We affirm appellants’ convictions, but modify Courtney’s sentence and remand for resentencing Taylor on the firearm possession conviction.
FACTS
In the early morning hours of August 15, 2005, Nick Nowell was fatally shot in the head as he stopped his Jaguar at the intersection of Raymond and Penn in Pasadena. Nowell was not a gang member, but he had been driving two Squiggly Lane gang members: Daniel McGuire was in Nowell’s backseat at the time of the shooting, and Broderick Allen had just gotten out of the car at his house, which was less than a block from the site of the shooting. As Allen got out of Nowell’s car, a white Tahoe drove slowly past them, going south on Raymond. Allen thought the Tahoe looked just like one that belonged to Shawntia Blaylock. McGuire saw the shape of two heads -- one with braids and the other an Afro -- in the front seat of the Tahoe. McGuire told Detective Keith Gomez he saw appellant Taylor and Harold Blaylock (Shawntia’s brother) in the Tahoe, but he refused to mark a photographic array and in his trial testimony denied making such an identification. Allen and McGuire urged Nowell to get going. Nowell made a U-turn and drove south on Raymond. He stopped at the intersection of Penn and Raymond. As McGuire bent over to pick marijuana off the car floor, he heard Nowell say, “Oh, shit.” McGuire looked up and saw the same white Tahoe, followed immediately by flashes of gunfire from the driver’s side of Nowell’s car. McGuire dropped to the floor of the car, which struck a light pole.
Unless otherwise specified, all date references pertain to 2005.
A fourth man, Reggie “J.R.” Thomas had been with the group, but got out first. No one testified J.R. was a gang member. However, Detective Keith Gomez testified he had heard that J.R. robbed appellant Taylor sometime before August 15.
McGuire told Detective Gomez and Sergeant Thomas Delgado he feared for his safety if he were labeled as a snitch.
McGuire started to get out of the car, but saw the Tahoe returning. The Tahoe passed by two or three times while McGuire hid in the car. When the Tahoe finally sped away, McGuire saw that Nowell was dead, got out of the car, and ran toward Allen’s house.
Nicholas McGee and Amit Mohan testified they were living at a rehabilitation center on Penn between Fair Oaks and Raymond at the time of the charged offenses. At about 1:40 a.m. on August 15, they were in or near the office when they heard gunshots outside. Mohan heard a crash immediately after the gunshots. They ran outside to see what happened. McGee and Mohan testified they saw a white Tahoe or other SUV with tinted windows driving west on Penn. It turned to head east on Penn, drove slowly near the crashed Jaguar, made a left turn to go north on Raymond, and accelerated away. Mohan saw an African-American man get out of the rear passenger side of the crashed Jaguar and run up Raymond. When Detective Gomez showed Mohan photographs of Shawntia Blaylock’s Tahoe (People’s Ex. 2), Mohan recognized it as the same one he saw on Penn on August 15. McGee testified the SUV in the photograph just looked like the same kind of vehicle, not necessarily the same one. Detective Gomez testified McGee positively identified Shawntia Blaylock’s Tahoe as the vehicle he saw on Penn Street at the time of the charged offenses.
The police recovered eight .45 caliber casings on or near the grounds of a church at the northeast corner of Penn and Raymond. They also found a deformed bullet and a fragment of copper jacketing from a bullet. Al eight casings were fired from the same gun. The deformed bullet, jacket fragment, and a bullet fragment removed from the right door of Nowell’s Jaguar were all fired from a second gun.
McGuire knew Harold Blaylock, Oscar “Big O” Aldridge, and both of the appellants, and knew they were all members of the Project Gangsters gang. At the time, the Squiggly Lanes gang did not get along with the Project Gangsters gang or its ally, the Pasadena Denver Lanes gang. Two days before the shooting, Allen and McGuire attended a party. McGuire “had some words” with Aldridge, but they walked away from one another. Later, as McGuire and Allen were leaving, McGuire tried to work things out with Aldridge. As they were talking, Courtney drove up in a red or burgundy Caprice with Harold Blaylock as a passenger. They got out and walked quickly toward McGuire, who pulled out a gun and held it at his side. Courtney and Blaylock stopped. No one said anything, and McGuire and Allen left.
Artesha Daniels phoned Detective Gomez anonymously and unexpectedly a few weeks after the charged crimes. Gomez recorded their conversation. They had several subsequent face-to-face interviews. The recordings of three interviews were played at trial after Daniels variously testified that she did not make her prior statements to Detective Gomez, did not remember making them, or told Gomez lies designed to obtain help with her own legal difficulties.
Daniels told Detective Gomez she was on Hammond Street in Pasadena with her boyfriend, Donald Mackson, at about 1:20 a.m. on August 15 when appellants approached in Shawntia Blaylock’s white Tahoe. Taylor was driving, Courtney was in the front passenger seat, and Harold Blaylock was in the backseat. Courtney was angry and said McGuire and “the Squigglies” had “shot up” his Caprice and “tried to take [his] head off.” Courtney asked Daniels to arrange to replace the windows for him. Taylor asked if Daniels and Mackson knew where to find the black Corolla. A few minutes after appellants and Blaylock drove away in the white Tahoe, Daniels heard shots. Taylor returned alone to Hammond Street, driving a Civic. He had two large handguns, said he needed to leave, and wanted Mackson to go with him.
Daniels told Detective Gomez she and Mackson met appellants at a Chevron station later on August 15. Courtney spoke again about McGuire shooting at Courtney’s car. Courtney also told them about the trouble between Aldridge and McGuire at the party on August 13 and a responsive shooting of a Squiggly gang member named David by the Project Gangsters gang before McGuire shot at Courtney’s car. Courtney said they watched Allen’s house from the driveway of a house a few doors away and saw Nowell’s red Jaguar pull up with McGuire and Allen in it. They chased Nowell’s car, which sped up, then Courtney shot at it from inside their vehicle. Courtney said he got out and fired shots into Nowell’s car after it crashed. Courtney also mentioned that McGuire ran from Nowell’s car. During the conversation at the gas station, Courtney did most of the talking, but Taylor also “put in ... little comments.”
Daniels told Detective Gomez appellants had three guns with them at the gas station. One gun was a revolver and the other two had magazines. Appellants gave the guns to Daniels and Mackson, and they took them to Courtney’s father’s house in El Monte, where Courtney’s car was parked. Daniels saw Courtney’s car before the window repair. The windshield and back window were “completely gone” and there were bullet holes in the driver’s door. Daniels and Mackson gave the guns to a woman at the house and Daniels paid the window repair man with a bad check.
Daniels told Detective Gomez that Courtney called and “chirped” Mackson repeatedly while the window repairs were underway. Courtney said he and Harold Blaylock were about to drive to Atlanta. At a later date, Mackson and Taylor attempted to drive Courtney’s car to Atlanta, but it broke down before they got out of California. A few days later she heard a “chirp” conversation between Courtney and Taylor in which one of them said the car must be moved because it was evidence.
A “chirp” call refers to a walkie-talkie type direct connection between mobile phones.
Daniels told Detective Gomez that Mackson came to her house in April 2006 and followed her as she walked to a store. He cornered her and pressured her into talking to Taylor on a mobile phone. Taylor referred to Daniels receiving a subpoena and going to court. He asked her if he was going to “get washed up” and threatened that she would “pay” if he did. Taylor and his wife yelled and cursed at Daniels over the phone. Mackson pressured Daniels to say Taylor was with Daniels and Mackson on the night of the crimes.
Daniels testified she had been convicted of seven or eight felonies and was in jail at the time of trial. She was known in the neighborhood for “scamming” and writing bad checks for the benefit of herself and others. Daniels admitted seeing Taylor several times on the night of August 14, but denied Taylor arrived on Hammond Street with Courtney or Harold Blaylock, that Taylor ever arrived in a white Tahoe, that Courtney asked her to fix his car, that Courtney asked about finding the black Corolla then said “let’s go commit this murk” before driving away with Taylor in the white Tahoe, that she heard gunshots, that Taylor returned to Hammond Street in a different car after the shooting and showed them two guns, that she and Mackson met appellants at a gas station, that appellants told them about the murder at the gas station, that appellants gave them guns to transport, that anyone went to Atlanta or spoke of going there, and that Taylor threatened her. Following an admission on cross-examination, she testified Taylor arrived on Hammond Street in the Tahoe on the night of August 14, but he got out of the Tahoe after saying he wanted to go back to his car. Daniels admitted giving a bad check to pay for a car repair but insisted it was not Courtney’s car. By the time she arrived, the damage was already repaired. When she told Detective Gomez that Taylor threatened her, she was fighting with Mackson and was angry at both him and Taylor. Daniels admitted the brakes literally fell off her car as she drove home after testifying at the preliminary hearing.
Daniels explained she wove a story together and called Detective Gomez because she wanted him to help her with her outstanding warrants. She claimed she heard rumors about the shooting and learned details from Nowell’s family. She said she “would have told Gomez anything” to avoid going to jail and having her baby taken from her. Detective Gomez told her what to say, and she said it. She added that her children were taken away from her by police in relation to another homicide case, so she would lie about possessing guns, being an accessory to murder, and selling drugs to avoid going to jail on her theft case.
Daniels said she feared Detective Gomez and testifying because Gomez had written “a bad report to my judge” and she was going to prison. She had “heard a lot about” Detective Gomez before she called him. She said Detective Gomez removed her from the witness protection program because her testimony at the preliminary hearing was not what Detective Gomez was paying her to say. She admitted she was afraid to give Detective Gomez her name when she called him on the phone the first time because she thought her name might “get out and hit the streets” of her neighborhood. She further admitted that her testimony made her a snitch, which was a bad thing but would have no repercussions.
Over the course of two interviews, Donald Mackson told Detective Gomez that he and Daniels were hanging out on Hammond Street sometime after midnight when appellants and Harold Blaylock drove up in a white Tahoe with tinted windows. Courtney wanted to get the windows in his car repaired because McGuire and others in a black Corolla shot them out earlier that night. Courtney seemed upset. Taylor returned alone a little later. They were all standing together talking and smoking in the street when the police cars and fire engines went past. At some point, Taylor showed Mackson that he had .22 and .25 caliber guns in his pockets. Taylor wanted Mackson to go with him to Highland Park, but Mackson refused. Mackson admitted he and Daniels went to Courtney’s house one or two days after the shooting to have the windows on Courtney’s car fixed, but he denied there was a meeting at a gas station, that he delivered guns to Courtney’s house, and that Courtney told him about any murder or plans to go to Atlanta. Mackson admitted he and Taylor attempted to drive to Atlanta in Courtney’s car. Courtney had Taylor’s truck in Atlanta, and they were going to switch the vehicles.
Mackson testified Taylor and Courtney were his good friends and he and Taylor were both members of the Project Gangsters gang. On August 14, Mackson and Daniels had just returned from Las Vegas and were hanging out on Hammond Street. Mackson “chirped” Taylor to see what was happening and to tell Taylor where they were. Taylor came by their location several times, sometimes alone. At one point he arrived in a truck with Courtney and Harold Blaylock. Taylor was seated on the passenger’s side. Taylor asked about fixing Courtney’s car windows, so Mackson called Daniels over to talk to Taylor. Mackson walked away. Courtney told Mackson to beware of a black Corolla. Five or six minutes later, Taylor returned alone in a blue Honda and they smoked some marijuana. Taylor had some lighters that looked like tiny guns, but he did not show Mackson any real guns. While they were smoking, they saw a lot of police cars and fire trucks drive by, and everyone left.
Mackson claimed he did not remember anything else and said he lied to Detective Gomez in their interviews. Gomez told Mackson what happened. Gomez repeatedly threatened to send Mackson away to jail for the rest of his life. Mackson still felt threatened at trial. On re-direct examination, however, Mackson admitted that in the second interview, Gomez said, “I didn’t threaten you?” and Mackson replied, “No, never. Never.” Mackson denied meeting appellants at a gas station on August 15, receiving guns, and hearing them talk about shooting Nowell or leaving the state, but he admitted going with Daniels to El Monte to have a window fixed. He also admitted taking a “long trip” with Taylor, but they were not going to Atlanta. In fact, the car broke down about 90 minutes from Pasadena. Mackson denied that Taylor threatened Daniels over the phone when Mackson went to Daniels’s home.
Detective Gomez testified that at the start of the first interview, Mackson was making fun of Gomez chewing tobacco. Mackson did not appear to be afraid of Gomez. At the end of the first interview, however, Mackson was very upset and appeared to be on the verge of tears. He said he was afraid of being labeled a snitch and being harmed by gang members.
Michael “Money Mike” Thomas phoned Detective Gomez the day of the murder. Thomas was a Pasadena Denver Lanes gang member and was close to both appellants. A few days later, Thomas phoned Taylor with Gomez secretly listening to and recording the call. The recording was played at trial and Gomez interpreted the slang for the jury. Thomas told Taylor that Harold Blaylock was telling people that Taylor was involved in Nowell’s murder. Gomez explained to the jury that Thomas was very close to Nowell and viewed him as a little brother. Thomas told Taylor he understood that McGuire pulled out a gun at a gang party and placed Nowell in jeopardy. Thomas said he wanted Taylor to know he was not angry at Taylor and was not out for revenge. Taylor asked Thomas, “but you knew, you knew who my beef -- you know who I was into it with, right?” Taylor later reiterated that Nowell had nothing to do with the “beef” Taylor had with McGuire.
San Luis Auto Glass Company sent an employee to 11919 McGirk Street in El Monte on August 15 to replace three windows in a Caprice. The employee found bullets inside the car door panels and concluded the window had been shot out. A young African-American woman paid for the repairs with a bad check.
On August 31, the police searched Courtney’s home at 11919 McGirk Avenue in El Monte and seized two loaded handguns: a .22 caliber revolver and a 9 millimeter semi-automatic.
Records for Courtney’s mobile phone revealed that immediately after the murder he drove to South Los Angeles, then across the country to Atlanta. Courtney was eventually arrested in Atlanta.
Shawntia Blaylock testified Harold was her brother and Taylor’s brother was the father of her children. Taylor was like family to her, and Courtney was a friend. She lived on Summit, one street east and about two blocks north of the site of Nowell’s murder. She allowed other members of her family to drive her Tahoe, but Harold did not know how to drive at the time of the crimes. Harold and the Tahoe were at her apartment when she went to bed on the night of August 14, and both were still there when she awoke the next morning. The keys were in her purse, which did not appear to have been disturbed overnight.
Police surreptitiously monitored Taylor’s visits in jail. On March 18, 2006, Taylor told Tiffiny White and Alexis Jackson that he would need to use a pen and paper when Shawntia Blaylock visited him because there were certain things he could not discuss over the visitation telephone. He also said he wanted to ask Shawntia if her brother Harold was the person who was snitching on him. He said the snitch might be Money Mike.
On March 25, 2006, Taylor told White he had seen Allen in the jail and remembered that Allen lived on Raymond Street. He described Allen, told White where Allen lived, and described Allen’s house and the type of car usually parked in the driveway there.
On March 31, 2006, Taylor asked his visitors if they knew Money Mike and said, “Tell him, fuck him. He’s a snitch.” On April 13, 2006, Taylor asked Tanchell Anderson whether Daniels was telling the police about him. Anderson said Daniels was. Taylor said, “That bitch put me in jail.” On April 16, 2006, Taylor told White that his investigator confirmed that Daniels was working with the police, then said, “I believe in Karma. What goes around comes around.” On April 20, 2006, appellant Taylor told Torrie Taylor that Mackson was not cooperating with the police and would testify for Taylor. Appellant Taylor also expressed his dislike of Daniels.
On May 19, 2006, Taylor told White to go to a particular gas station, purchase cigarette lighters shaped like tiny handguns, and bring the lighters and receipt to court. On June 3, 2006, Taylor repeatedly asked White, “Don’t you remember you were with me that night?”
Courtney, Taylor, Harold Blaylock, Oscar Aldridge, and Donald Mackson were all active members of the Project Gangsters gang at the time of the charged offenses. Michael Thomas was an active member of the Pasadena Denver Lanes gang, which was closely allied to the Project Gangsters gang. The Squiggly Lane gang and Project Gangsters gang were violent rivals at the time of the charged offenses. Pulling a gun on members of a rival gang during a party would be considered very disrespectful, essentially a challenge requiring a response with greater violence to avoid showing weakness. Shooting at a rival’s car would also show disrespect and would require retaliation with a higher degree of violence. Witnesses in gang-related cases often recant because they fear the gang will kill them or their family in retaliation. In gang terminology, a “snitch” is someone who provides accurate information to the police.
Appellants were tried together, with a single jury. The jury convicted each appellant of first degree murder, attempted murder, and possession of a firearm by a felon. With respect to each appellant, the jury found the attempted murder was willful, deliberate, and premeditated, and the murder and attempted murder were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)). The jury further found, with respect to each appellant, that, in the commission of the murder and attempted murder, Courtney personally and intentionally fired a gun, causing death and great bodily injury; personally and intentionally fired a gun; and personally used a gun. (§ 12022.53, subds. (b), (c), and (d).) It found, with respect to each appellant, that, in the commission of the murder and attempted murder, a principal personally and intentionally fired a gun, causing death and great bodily injury; personally and intentionally fired a gun; and personally used a gun. (§ 12022.53, subds. (b), (c), (d), and (e)(1).)
Unless otherwise noted, all statutory references pertain to the Penal Code.
Each appellant waived a jury trial on prior conviction and prior prison sentence allegations. The court found Taylor had served four prior prison terms within the scope of section 667.5, subdivision (b). Courtney admitted one prior serious or violent felony conviction within the scope of the Three Strikes Law and one prior serious felony conviction within the scope of section 667, subdivision (a)(1), and he also admitted that he served two prior prison terms within the scope of section 667.5, subdivision (b).
The trial court sentenced Courtney to 107 years 8 months to life in prison. For murder (count 1), the court imposed a term of 25 years to life, plus 25 years to life for the firearm enhancement (§ 12022.53, subds. (d)), plus 10 years for the gang enhancement, plus 5 years for the section 667, subdivision (a)(1) enhancement, plus 2 years for prior prison term enhancements (§ 667.5, subd. (b)), for a total of 67 years to life. For attempted murder (count 2), the court imposed a term of 15 years to life, plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), for a total of 40 years to life. For possession of a firearm by a felon (count 3), the court sentenced Courtney to 8 months.
The trial court sentenced Taylor to 84 years 8 months to life. For murder (count 1), the court imposed a term of 25 years to life, plus 25 years to life for the firearm enhancement (§§ 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(5)), plus 2 years for prior prison term enhancements (§ 667.5, subd. (b)), for a total of 52 years to life. For attempted murder (count 2), the court imposed a term of 7 years to life, plus 25 years to life for the firearm enhancement (§§ 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(5)), for a total of 32 years to life. For possession of a firearm by a felon (count 4), the court sentenced Taylor to 8 months.
DISCUSSION
I. Evidentiary issues
Appellants assert numerous claims stemming from the admission or exclusion of evidence. As a general proposition, we review the trial court’s rulings on the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Each appellant joins in the applicable arguments of his co-appellant.
A. Admission of unedited tape of Allen’s statement to police
Courtney objected to playing the entire, unedited recording of Broderick Allen’s statement to Detective Gomez. Courtney’s attorney told the court he would “just … provide the court with a few excerpts of the type of thing which I think is absolutely inadmissible.” The court agreed. Counsel specifically objected that “there are a number of statements in here which are hearsay, talk about what other people have told him what -- what people are saying on the street.” The court asked counsel to indicate what he was “specifically referring to.” Counsel pointed out several instances but not the one in controversy. Counsel repeatedly made a blanket hearsay objection to the entire interview, and the court repeatedly responded by asking counsel to point out the particular statements he found objectionable. Counsel never mentioned the statements in issue on appeal. After a recess, counsel attempted to point out other portions to which he objected, but the court ruled the effort untimely and permitted the prosecutor to play the unedited tape.
The tape, as played for the jury, included an exchange in which Detective Gomez asked Allen whether he had seen Courtney or Harold Blaylock “around.” Allen replied, “I ain’t seen neither one of them. The next day, the story was that they did it and everybody’s saying they went out of town. Both of them is gone, violated parole or whatever, and just gone. Which, basically, indicates them, because if you didn’t do nothing, what you running for?”
Soon after the statements in the preceding paragraph played, the court ordered the prosecutor to stop the tape. The court stated, “Ladies and gentlemen, I want to bring you back to page 18 at the top. There’s an answer. It says ‘I ain’t seen neither one of them. The next day’ -- this is the court’s concern – ‘the next day the story was that they did it and everybody’s saying they went out of town. Both of them is gone, violated parole or whatever, and just gone. Which basically indicates them because if you didn’t do nothing, what you running for?’ [¶] That is what we call hearsay. It’s inadmissible. We cannot redact out everything and still have a conversation that’s comprehensible so you fully understand the interview between Detective Gomez and this witness. I’m telling you you cannot use this to convict or as evidence against the defendants. It’s just hearsay. [¶] ‘Everybody says they’ -- well, you can’t use that. Does everyone understand that? And you’re instructed to disregard that, in its entirety.”
After the recording finished, outside the presence of the jury, the court chastised the prosecutor for failing to edit the statement to exclude the statements in issue on appeal. While noting it overruled Courtney’s hearsay objection, the court stated counsel should have brought the statements in issue to the court’s attention. Although the court characterized the statements as prejudicial, it concluded the prejudicial effect was insufficient to grant a mistrial.
1. Court’s refusal to find and exclude inadmissible hearsay from the tape
Appellants contend the court’s refusal to review the transcript of Allen’s statement to find the inadmissible hearsay constituted a failure to exercise its discretion and resulted in a violation of their due process and confrontation rights.
As a preliminary matter, we note Taylor cannot assert any appellate claim regarding this evidence because he did not object in the trial court. As a general rule, failure to join in the objection or motion of a codefendant forfeits the issue for appeal. (People v. Wilson (2008) 44 Cal.4th 758, 792-793 (Wilson).) Moreover, he has not demonstrated how he might have been prejudiced by the statement, which did not refer to or incriminate him.
Courtney’s hearsay objection to unspecified portions of Allen’s statement was insufficient. The trial court has no sua sponte duty to exclude evidence. (People v. Montiel (1993) 5 Cal.4th 877, 918 (Montiel); Evid. Code, § 353.) Courtney would impose upon the court a duty to search through a lengthy transcript or recording for inadmissible statements on the basis of an objection that the transcript or recording includes some inadmissible hearsay statements. This is not the law. The burden is upon the party seeking to exclude evidence to object, “‘specifically stating the grounds of the objection, and directing the objection to the particular evidence that the party seeks to exclude.’” (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260, citation omitted.) “What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.” (People v. Partida (2005) 37 Cal.4th 428, 435.) Courtney’s objection did not permit the court to make an informed ruling. Taylor did not object at all. Accordingly, appellants forfeited their evidentiary, due process, and confrontation claims regarding Allen’s statements.
2. Ineffective assistance of counsel
Courtney also contends his attorney’s failure to specifically object to the statements in issue on appeal deprived him of the effective assistance of counsel.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Courtney must overcome presumptions that his attorney was effective and that the challenged action might be considered sound trial strategy. (In re Jones (1996) 13 Cal.4th 552, 561.) Counsel is given wide latitude and discretion in the area of tactics and strategy, but the exercise of that discretion must be founded upon reasonable investigation and preparation, and it must be reasonable and informed in light of the facts and options reasonably apparent to counsel at the time of trial. (Id. at pp. 561, 564-565.)
Assuming, without deciding, that Courtney’s counsel erred by failing to pinpoint the statements in issue on appeal and specifically object to them as hearsay and that the failure to do so was not a tactical decision, Courtney’s claim nonetheless fails because he has not demonstrated prejudice.
The trial court admonished the jury not to consider the statement in issue for any purpose. We presume the jury followed this instruction and disregarded the stricken statement. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
Even if jurors did not follow the court’s instruction, the failure to properly object to the statement did not prejudice Courtney. Allen’s statement related three points: (1) Courtney and Blaylock “did it,” (2) Courtney and Blaylock left town, which reflected a consciousness of guilt, and (3) Courtney and/or Blaylock violated their parole by leaving town. Other evidence apart from Allen’s objectionable statement established the first two points. Daniels’s statements to Detective Gomez related Courtney’s admission to Daniels and Mackson that he repeatedly shot into Nowell’s car in retaliation for McGuire’s earlier behavior at the party and in shooting at Courtney’s car. Thus, the jury heard from other sources that Courtney “did it.”
As to the second point, ample other evidence proved Courtney fled to Atlanta immediately after the charged offenses. This included Courtney’s mobile phone records, Daniels’s and Mackson’s statements to Detective Gomez relating Courtney’s statement that he and Blaylock were leaving for Atlanta, Mackson’s statement that Courtney was in Atlanta with Taylor’s truck, and Detective Gomez’s testimony that Courtney was arrested in Atlanta. The jury was instructed that flight reflected consciousness of guilt. (CALJIC No. 2.52)
Although no evidence was introduced that Courtney was on parole at the time of the charged offenses, the jury received Courtney’s stipulation that he had been convicted of a felony. From the jury’s perspective, hearing that Courtney may have been on parole was not reasonably likely to have been more prejudicial than learning that he had a prior felony conviction. Given the very strong case against Courtney, including evidence of the rivalry between the Project Gangsters and Squiggly Lane gangs, the dispute arising from the confrontation at the party two days before the shooting, Courtney’s statements to Daniels and Mackson before and after the murder about McGuire shooting at his car, his desire to retaliate, and the shooting itself, McGuire’s statement to Detective Gomez identifying Courtney in the Tahoe as it passed Nowell’s car a few moments before the shooting, Courtney’s transfer of guns to Mackson and Daniels, evidence of the window repair showing that Courtney’s car had been struck by bullets, and Courtney’s immediate departure for Atlanta, it is not reasonably probable Courtney would have obtained a more favorable result if the jury had not heard Allen’s statement about a parole violation.
3. Prosecutorial misconduct
Courtney contends the prosecutor committed prejudicial misconduct by knowingly introducing the tape without removing the inadmissible hearsay statements in issue on appeal.
A prosecutor’s misconduct violates due process if it infects a trial with unfairness. (People v. Farnam (2002) 28 Cal.4th 107, 167.) Less egregious conduct by a prosecutor may nonetheless constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. (Ibid.)
Absent a showing that an objection or request for admonition would be futile or the harm could not have been cured, an appellant may not complain of prosecutorial misconduct unless he objected to the alleged misconduct in a timely fashion at trial and requested that the jury be admonished to disregard the impropriety. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Although Courtney raised a generalized hearsay objection to the entire Allen statement, he never raised the issue of prosecutorial misconduct in the trial court. The trial court’s strong spontaneous reaction to the playing of the statements in issue on appeal negates any claim that an objection would have been futile. Accordingly, Courtney forfeited his prosecutorial misconduct claim.
In any event, admission of Allen’s statement did not infect the trial with unfairness. It imparted very little, if any, information the jury did not also receive from other proper sources. Accordingly, if the prosecutor engaged in misconduct, it was at most a violation of state law, and constituted a basis for reversal only if it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor not engaged in misconduct. (People v. Ochoa (2001) 26 Cal.4th 398, 442 (Ochoa), disapproved on another ground in People v. Prieto (2003) 30 Cal.4th 226.) As discussed in the context of Courtney’s ineffective assistance claim, any error was harmless.
B. Exclusion of evidence regarding Detective Gomez’s history, conduct, and police procedures
Appellants contend the exclusion of evidence regarding a prior incident in which Detective Gomez fatally shot a gang member, the police department’s procedures regarding photographic identifications and interrogations, statements Gomez made to Shawntia Blaylock, Gomez’s failure to investigate Daniels, and Gomez’s education in African American history and adolescent psychology violated their due process right to present a defense.
Enforcing the ordinary rules of evidence does not violate a defendant’s due process rights. (People v. Cunningham (2001) 25 Cal.4th 926, 998 (Cunningham).) A defendant has no constitutional right to present all evidence, without regard to its form or probative value. (People v. Babbitt (1988) 45 Cal.3d 660, 684.) Exclusion of evidence generally does not even rise to the level of constitutional error, much less structural error. (People v. Cudjo (1993) 6 Cal.4th 585, 610-611.)
1. Shooting by Detective Gomez
McGuire denied seeing who was in the Tahoe and denied making any identifications of its occupants. The court asked McGuire if anyone in the courtroom was intimidating him, and he said Detective Gomez intimidated him a little.
On cross-examination, Courtney’s counsel asked McGuire if he felt intimidated by Detective Gomez for some reason other than his interactions with Gomez. The prosecutor objected on the ground of relevance. Outside the presence of the jury, the prosecutor explained that Gomez fatally shot a gang member in self-defense. Courtney argued this incident was widely known and Gomez used it to intimidate young men. In a subsequent Evidence Code section 402 hearing, McGuire testified that Gomez intimidated him by trying to catch him and others. He mentioned “the murder” and said the victim was his “aunty’s cousin.” McGuire agreed the prior incident was on his mind, but admitted he did not fear Gomez would be physically violent toward him. He summed up his apprehension of Gomez by saying, “He’s just very sneaky.”
The court excluded evidence of the prior shooting by Detective Gomez under Evidence Code section 352, stating its “prejudicial impact would far outweigh the little probative value that you have. … I just listened to the young man. It’s basically the fact that Officer Gomez is known to lock you up. That’s basically the bottom line. [¶] He did mention the fact, of course, the shooting of his relative. But he says basically the bottom line is that Officer Gomez is a different person out in the field. He will lock you up. [¶] Nevertheless, even considering all the factors, the bottom line is he’s saying he wasn’t intimidated by him because he didn’t make a statement.”
Courtney later sought permission to ask Detective Gomez about the prior shooting. The court denied that request, citing undue consumption of time and the risk of confusing the jury.
Neither appellant made an offer of proof that Shawntia Blaylock, Daniels, Mackson, or any other witness knew about the prior shooting by Detective Gomez, or that these witnesses would testify they made false statements because they feared Gomez based on the prior incident. Accordingly, appellants failed to preserve this issue with respect to any witness other than McGuire or Detective Gomez. (People v. Waidla (2000) 22 Cal.4th 690, 718, fn. 4; People v. Eid (1994) 31 Cal.App.4th 114, 126.) Moreover, because Taylor did not join in Courtney’s effort to admit this evidence in the trial court, he may not assert the issue on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.)
Evidence Code section 352 provides that the court may, in its discretion, exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. “Evidence Code section 352 must yield to a defendant’s due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense.” (Cunningham, supra, 25 Cal.4th at p. 999.)
The probative value of the prior shooting incident was minimal. As the trial court noted, McGuire did not testify he feared Detective Gomez as a result of the prior shooting, but because Gomez had a reputation for putting people in prison and was “sneaky.” The defense purpose was adequately served by evidence of the mere fact of intimidation, without explaining an alternative basis for the intimidation that McGuire essentially rejected. Admitting evidence of the prior incident would have required presentation of the circumstances leading up to the shooting, the investigation and consequences of it, and the knowledge of the incident in the community. This would necessarily entail an undue consumption of time in a very lengthy trial and risk confusing the jury. The trial court did not abuse its discretion by concluding these risks substantially outweighed the minimal probative value of the information.
Furthermore, Detective Gomez admitted it was possible that he threatened McGuire with “his open case” if he recanted his statement to Gomez. Accordingly, exclusion of the minimally relevant evidence regarding the prior incident did not prevent Courtney from presenting his theory that Detective Gomez intimidated McGuire into making a statement and indentifying Courtney and Harold Blaylock.
2. Police procedures
Courtney asked Sergeant Delgado whether he was familiar with the Pasadena Police Department’s policy and procedure for compiling a “murder book.” The court sustained the prosecutor’s relevance objection. Courtney asked whether the pages in the murder book were numbered, and the court again sustained a relevance objection. Outside the presence of the jury, Courtney explained the Pasadena Police Department did not keep a chronological record of the investigators’ activities or number the pages, which permitted them to “manipulate” and construct evidence. The court asked if there was any evidence of such impropriety, and Courtney suggested Detective Gomez may have written on the photographic array that McGuire made identifications, when he had not actually identified anyone. The court rejected this as “pure speculation” and sustained the objection.
As the trial court correctly noted, Courtney’s offer of proof was based entirely upon speculation. Nothing indicates an exploration of the police department’s procedures regarding their murder books would have strengthened Courtney’s claim that Detective Gomez lied. At best, Courtney may have demonstrated a violation of procedure, but his offer of proof suggested Detective Gomez followed the department’s policy and procedures, and Courtney simply hoped to demonstrate the inadequacy of the policy and procedure. Doing so would not have strengthened his speculative claim that the identifications were fabricated and did not prevent him from presenting his defense.
Courtney also asked Sergeant Delgado whether a detective should refrain from contaminating a witness by telling an interviewee the answers to the interview questions. The court sustained the prosecutor’s objection that the question was speculative and an incomplete hypothetical. Courtney did not attempt to rephrase the question.
This ruling did not violate Courtney’s right to present a defense. Courtney should have attempted to rephrase his question. In any event, if Sergeant Delgado had been permitted to answer and had agreed that an interviewing detective should not provide an interview subject with answers, it would have added very little, if anything, to Courtney’s defense. The claim that Detective Gomez provided information to witnesses, who then repeated it, was presented through the testimony of Daniels and Mackson. Testimony by Delgado that such a tactic would be improper would not prove the witnesses’ claim that Gomez actually did this.
Because Taylor did not join in Courtney’s effort to present this evidence in the trial court, he may not assert the issues on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.)
3. Statements to Shawntia Blaylock
Courtney asked Shawntia Blaylock whether Detective Gomez made any statements to her about the charged crimes. The court sustained the prosecutor’s relevance objection. Courtney asked if Blaylock walked out of the police station after questioning. Blaylock said she repeatedly asked Gomez whether she was under arrest, and he told her she was not. She then said, “I kept asking him if I could leave. And he kept asking that he wanted …” The court sustained the prosecutor’s objections on the grounds of relevance, hearsay, and that no question was pending. Courtney asked what happened when Gomez came to her home at a later date, and she replied, “I was in the house and I could hear my brother screaming, Tay -- Detective Gomez has a gun on me. And I was still on crutches at the time. I came outside and I asked him, why do he keep coming over here harassing us ….” The court sustained the prosecutor’s relevance objection. Courtney asked Blaylock if Gomez said anything to her on that occasion. The court sustained the prosecutor’s relevance and hearsay objections. Blaylock testified she was frightened of Gomez “because of some of the things that he said to me.” The court sustained the prosecutor’s objection. On re-cross examination, Courtney again attempted to ask Blaylock why she was afraid of Gomez, and the court sustained the prosecutor’s relevance objection.
None of these matters was relevant. No pretrial statements by Blaylock were admitted at trial. Her trial testimony pertained only to her Tahoe. Accordingly, her fear of Detective Gomez, statements Gomez may have made to her, and her annoyance at Gomez’s treatment of her brother were irrelevant. Exclusion of evidence on these points did not deprive Courtney of his right or ability to present a defense.
Because Taylor did not join in Courtney’s effort to present this evidence in the trial court, he may not assert the issues on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.)
4. Investigation of Daniels and use of informers
The trial court sustained the prosecutor’s relevance objections to each of the following questions Courtney asked Detective Gomez: whether one of the most important responsibilities of a detective was to identify and develop informants “to the point where they will regularly contribute information;” whether developing informants was an “important part of how you develop your knowledge of what’s going on in the community;” whether the police department required Gomez to document his contacts with informants; whether he documented or kept any records of his contacts with informants; whether informants often received some form of consideration; whether he had ever intervened with a prosecutor to obtain leniency for an informant; whether he ever provided an informant with money from public funds or assistance with housing or food expenses. The court explained Courtney could “ask those questions about any witnesses or persons pertaining to this case,” but not about general practices or policies.
Exclusion of evidence regarding the police department’s policies and Detective Gomez’s general practices did not violate Courtney’s right to present a defense. Such general information did not tend to detract from the credibility of any prosecution witness.
Detective Gomez testified he investigated Daniels’s criminal history. The trial court repeatedly sustained the prosecutor’s relevance objections to Courtney’s inquiries regarding the timing of that investigation. Both the jury and Gomez were aware of Daniels’s numerous felony convictions. The date Gomez became aware of her record had no relevance to Courtney’s guilt or defense.
Because Taylor did not join in Courtney’s effort to present this evidence, he may not assert the issues on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.)
5. Detective Gomez’s knowledge of African-American history and adolescent psychology
Courtney examined Detective Gomez extensively regarding his training as a police officer and other educational qualifications. He then asked whether Gomez had taken any classes in African-American history or adolescent psychology. The court sustained the prosecution’s relevance objections to each question. Taylor argues these areas of study were “relevant to Gomez’s qualifications to offer his opinion as to what ‘Money Mike’ meant during the recorded conversation.”
Because Taylor did not join in Courtney’s effort to present this evidence in the trial court, he may not assert the issue on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.) Moreover, Detective Gomez’s interpretation of the slang in the statement was based upon his qualifications as a gang expert. While a course in slang might have been a beneficial qualification for this task, it is highly unlikely that either African-American history or adolescent psychology courses would provide any insight into the meaning of the slang terminology.
C. Promises to witnesses
Appellants also contend the admission of Detective Gomez’s testimony regarding making promises to witnesses violated due process. The prosecutor asked Gomez whether, in the first conversation with Daniels, he made “preliminary promises in order to get her to reveal her name?” Courtney objected that the tape of the conversation spoke for itself. The court overruled the objection, saying “he may reveal [an] investigative technique if the jury doesn’t understand it.” Gomez testified he made no promises, but said things to put her at ease and induce her to state her name.
The admission of relevant evidence results in a due process violation only if it makes the trial fundamentally unfair. (People v. Falsetta (1999) 21 Cal.4th 903, 913.) “‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.”’” (People v. Albarran (2007)149 Cal.App.4th 214, 229 (Albarran), citations omitted.) “Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. We, therefore, have defined the category of infractions that violate ‘fundamental fairness’ very narrowly.” (Dowling v. United States (1990) 493 U.S. 342, 352, 110 S.Ct. 668.)
Because Taylor did not join in Courtney’s objection to this evidence in the trial court, he may not assert the issue on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.) Courtney’s defense relied heavily on the theory Daniels lied to Detective Gomez to obtain assistance with her own legal difficulties and specifically cited Gomez’s “promises” to assist Daniels. Thus, testimony of Gomez’s “promises” to Daniels assisted Courtney’s defense. Admission of this evidence did not render the trial fundamentally unfair.
D. Admission of recorded conversation between Taylor and Thomas
Taylor objected to the admission of evidence regarding his conversation with Michael Thomas on the ground it was irrelevant and did not constitute an adoptive admission. Outside the presence of the jury, the prosecutor played the recording, and Detective Gomez testified regarding the meaning of the slang, based upon his experience working with gang members.
In particular, Detective Gomez testified that when Thomas said, “I’m going to keep it 100 with you bro,” he meant he was going to be completely honest. When Thomas said, “It’s a little, little birdie going around. H.B. saying that um, on the little shit with my little that you was there,” he meant he heard Harold Blaylock (“H.B.”) was saying Taylor was there when Thomas’s protégé (his “little”) was shot. Thomas then said, “But look ... I’m just letting you know bro like if you see me in the hood or any of that shit blood, [redaction]. So other little nigga exposed his hands on some gangster shit blood [redaction] you know what I’m saying, I would have did the same thing, and blood already, you know what I’m saying, blood hollered at me like, like, like ... it wasn’t even for my nigga blood. You know what I’m saying. And the shit just, you know what I’m saying, I’m fixin to be in the hood, I don't want mother fuckers, you know what I’m saying ... trippin’ like, you know what I'm saying like I’m out there trip and shit. Me and you go way too far back blood.” Gomez testified this meant Thomas wanted Taylor to know he was not going to seek revenge. He knew about McGuire showing the gun at the party and understood that Nowell was not the target of the charged offenses. Thomas did not want anyone who saw him in Pasadena to think he was there to retaliate for Nowell’s death.
Thomas then said, “Same thing I was telling bro, I was like man, bro I already know. Like, cause he was like, like, like concerned about me trippin. I’m telling blood like bro, I’m not trippin ... nigga, cause I heard the story. Big O, Big O told me the whole, the whole scenario shit bro. So you know what I’m saying it had me like ... it had me fucked up at first, but when he told me that the other little nigga, the little squirt, bitch-ass nigga did that shit, I was like blood put, blood the one that put blood in violation from the gate.” Detective Gomez testified this meant Thomas had been talking to Courtney, who was concerned that Thomas would be upset. Thomas told Courtney that although he was initially upset, he heard the whole story from Oscar Aldridge and knew Nowell’s death was McGuire’s fault. Taylor then said, “Nick, Nick right?” Thomas replied, “you know what I’m saying. That’s like some, some, some sucker shit blood. Like you know what I’m saying, if you playing poker blood, if you got a poker hand blood, unless you got a winning hand, you don’t show your winning hand blood.” Gomez testified this meant if McGuire was going to show a gun, he should have killed Courtney or Harold Blaylock. Otherwise, he was revealing what he intended to do, and it would “come right back on” him. Taylor then said, “He was, he was your people people?” and Thomas replied, “That was my ‘Little’ bro. Real talk man.” Gomez testified Taylor was asking whether Nowell was very close to Thomas, and Thomas replied Nowell was his protégé. Taylor then said, “Homie, I swear to God Mike, I do not know the dude. I didn’t ....” Thomas replied, “I already know you didn’t know him, that’s what I’m saying. That’s why I’m saying you know like if I’m out there like don’t be trippin on me and think I’m out there trippin or none of that shit blood, it ain’t like that ....” Taylor then said, “Mike … me and you go to, we go way to mother fucking far back. Me and you is like my peoples bro. Me and you always ... the utmost. Glad you called me and let me know that, but .... (unintelligible) I can’t even see myself trying to be mad or trip with you, but I wouldn’t think because you come out there like that, I wouldn’t think that.”
Later in the conversation, Taylor said, “But you knew, you know who my beef, you know who I was into it with, right?” Detective Gomez testified Taylor was asking whether Thomas knew who he was actually upset with. Thomas replied that he did. Gomez testified they were referring to either McGuire or Reggie “J.R.” Thomas, who had robbed Taylor and had been in Nowell’s car on the night of the charged offenses. After Taylor and Thomas insulted McGuire, Thomas said the only person he “got close to was my little, blood that was my little bro.” Taylor replied, “I really still to this day if they showed me a picture, I really wouldn’t know him. Right now I don’t know that man. That man ain’t never had no problem with me.” Gomez testified both men were referring to Nowell. Following additional discussion about other people and incidents, Taylor said, “Right. Well, back to ol boy. I didn’t really know ol boy. I didn’t really know ol boy, and little beef with ol boy I mean he didn’t have nothing to do with it.” Gomez testified Taylor was referring to Nowell and meant that Nowell was not supposed to be killed.
Taylor argued the conversation contained no admissions or adoptive admissions, just “speeches” by Thomas. The court overruled Taylor’s objection, saying, “they are admissions by your client, that this was this guy’s friend. ‘Don’t give me a beef when I come back to the neighborhood. I’m not going to be mad at anyone,’ and your client indicated I’m sorry -- basically, I’m sorry, man. He wasn’t the target. I didn’t know the guy. I didn’t have any beef with them [sic]. That’s an admission.”
Taylor contends the conversation was unintelligible and contained no admissions and its introduction violated his confrontation rights.
Evidence Code section 1221 provides a hearsay exception for adoptive admissions: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.) “When a defendant remains silent after a statement alleging the defendant’s participation in a crime, under circumstances that fairly afford the defendant an opportunity to hear, understand, and reply, the statement is admissible as an adoptive admission, unless the circumstances support an inference that the defendant was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.” (People v. Jurado (2006) 38 Cal.4th 72, 116.) The statement need not be a direct accusation, just a statement that would normally call for a response if it were untrue. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) Evasive or equivocal replies, as well as silence, may constitute adoptive admissions. (Ibid.) “To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)
The conversation was intelligible with the aid of Detective Gomez’s “translation” of the participants’ slang. So interpreted, the conversation supported a reasonable inference that when Thomas effectively accused Taylor of being involved in Nowell’s murder, Taylor did not deny involvement, but instead explained that Taylor was targeting the person with whom he had a dispute, and Nowell was an unintended victim. Taylor’s responses to Thomas’s statements regarding Nowell’s murder therefore constituted adoptive admissions. The trial court did not abuse its discretion by overruling Thomas’s objection. Taylor was free through cross-examination and argument to cast doubt upon the accuracy of Gomez’s interpretation and to develop his theory that Taylor actually admitted nothing.
Taylor did not assert his confrontation claim in the trial court and therefore forfeited it. In any event, admission of appellant’s recorded adoptive admissions did not violate the Confrontation Clause. (People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25, disapproved on another ground in People v. Doolin (2009) ___ Cal.4th ___ [2009 WL 18142].)
E. Admission of evidence of guns found in Courtney’s home
After the second interview with Daniels, in which she spoke of receiving guns, the police searched Courtney’s house and found a .22 caliber revolver and a 9 millimeter semi-automatic handgun. Courtney sought to exclude evidence of these guns on the ground that they were not the .45 caliber murder weapon. He argued this evidence would make Courtney appear to be an “armed ruffian” and was not admissible under Evidence Code section 1101, subdivision (b). The prosecutor argued the guns tended to corroborate Daniels’s statement to Detective Gomez, in that she said appellants gave her and Mackson three guns, which they took to the house the police searched in El Monte. The court refused to exclude the evidence because the guns could form the basis of the possession charge and their discovery at Courtney’s home corroborated Daniels’s statement to Detective Gomez. Courtney sought, in the alternative, to sever the firearm possession count.
Appellants contend the admission of this evidence violated their right to due process.
Evidence that a defendant possessed a weapon that was not used in the charged crime or is not shown to have some arguable relevance to the case is inadmissible. (People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393.) Here, however, the recovery of the guns at Courtney’s house was relevant to help corroborate Daniels’s statements to the police. Daniels’s inconsistent trial testimony and appellants’ attacks on her credibility rendered such corroboration crucial to the prosecution’s case. Because permissible inferences could be drawn from this evidence, its admission did not violate due process. (Albarran, supra, 149 Cal.App.4th at p. 229.) Moreover, “the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.” (People v. Partida, supra, 37 Cal.4th at p. 439.) Given the extremely strong evidence that Courtney committed a ruthless and violent attack on Nowell, who was not a member of a rival gang and had apparently neither threatened nor offended Courtney, the discovery of two guns at Courtney’s house was not likely to produce a significantly different impression of Courtney or evoke an emotional bias against him. Admission of this relatively mild evidence did not render Courtney’s trial fundamentally unfair.
F. Admission of evidence Courtney had been in prison
Courtney attempted to cast doubt upon Detective Gomez’s qualifications and expertise through extensive cross-examination regarding his education, training, and experience as a police officer. In the course of this, the following exchange occurred:
“Q. Before you went to Atlanta to retrieve Mr. Courtney, had you ever personally met Mr. Courtney?
“A. I spoke to him on the phone but did not meet him in person.
“Q. All right. So in these years that you were working patrol, focusing on gangs in northwest Pasadena and during your time about a year that you had been promoted to detective before this case, during that time, you had never crossed paths with Mr. Courtney; correct?
“A. It was kind of hard. He was in prison for a while, so we wouldn’t cross paths.”
The trial court immediately and spontaneously admonished the jury not to consider the testimony about Courtney “perhaps being in prison” or allow it to affect the deliberations in any way.
Later, outside the presence of the jury, Courtney moved for a mistrial based upon Detective Gomez’s reference to his imprisonment. The court and counsel discussed the dates of Courtney’s imprisonment and Gomez’s employment as a Pasadena police officer, and the court concluded the answer was responsive and “not unreasonable,” in light of Courtney’s extensive cross-examination of Gomez, including his questions about coursework in African-American history and adolescent psychology. The court denied the request for a mistrial.
Courtney contends admission of evidence of his imprisonment violated due process and the court should have granted a mistrial.
A mistrial should be granted only where an error causing incurable prejudice has occurred. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154-1155.) The trial court has great discretion in ruling on mistrial motions because whether a particular error is incurably prejudicial is inherently a speculative matter. (Ibid.)
Detective Gomez’s reference to Courtney’s imprisonment did not incurably prejudice Courtney or render his trial fundamentally unfair. The court immediately admonished the jury not to consider the possibility that Courtney had been in prison, and we must presume the jury followed the court’s instruction. Moreover, the jury knew Courtney had a prior felony conviction as a result of his stipulation to that fact. Given the very strong evidence of Courtney’s guilt, there is no reasonable possibility the jury would have rendered a different verdict absent Gomez’s brief reference to Courtney being in prison. (People v. Fudge (1994) 7 Cal.4th 1075, 1103-1104; People v. Watson (1956) 46 Cal.2d 818, 836.)
G. Admission of evidence of Courtney’s failure to tell his sister of an alibi
Courtney sought to exclude evidence that, in a recorded, post-arrest conversation, his sister pressed him to remember who he was with or was speaking to when the charged offenses were committed, and he responded by saying, “I’ve been through all that before. I need to speak with my lawyer.” Courtney argued the evidence was irrelevant and that he was effectively invoking his Miranda right to remain silent. The court overruled Courtney’s objection. Detective Gomez then testified that in a telephone conversation, Courtney’s sister asked Courtney “a couple of times if he remembered who he was with, where he was at and who he spoke to on the phone during the night of the murder,” but Courtney did not provide “information to answer that question.”
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602.
Courtney contends admission of this evidence violated due process by improperly shifting the burden of proof to him.
“[O]nce Miranda [citations] warnings have been given, it may be constitutionally improper to introduce evidence of an accused’s post arrest silence.” (People v. Medina (1990) 51 Cal.3d 870, 890, citing Doyle v. Ohio (1976) 426 U.S. 610, 619, 96 S.Ct. 2240 (Doyle).) In Medina, however, the court allowed the prosecution to introduce evidence that the defendant did not respond when his sister asked him why he shot the victims. The court noted, “The record does not suggest that defendant believed his conversation with his sister was being monitored, or that his silence was intended as an invocation of any constitutional right.” (Medina, supra, at p. 890.) “[I]f a defendant remains silent in the face of an accusatory statement from a person other than a police officer, his silence ‘“lead[s] reasonably to the inference that he believes the accusatory statement to be true.”’” (Id. at p. 891.)
Although Courtney’s conversation with his sister was, in fact, monitored, nothing in the record indicates he was aware of that fact or that he intended to invoke his right to silence when he failed to provide his sister with alibi information. The jury could reasonably infer from his failure to provide that information that he did not have an alibi. Accordingly, evidence of his failure to provide the requested information had some relevance and did not violate Doyle.
Even if we were to assume a Doyle violation, the error was harmless beyond a reasonable doubt (People v. Quartermain (1997) 16 Cal.4th 600, 621 (Quartermain); Chapman v. California (1967) 386 U.S. 18, 24), given the very strong evidence of Courtney’s guilt -- which negated the possibility he had an alibi -- and the very brief and relatively insignificant evidence regarding the conversation with the sister.
H. Admission of evidence Taylor was uncooperative after his arrest
Detective Gomez testified that Taylor made a post-arrest statement to him. The prosecutor asked, “[W]hat was Mr. Taylor’s demeanor when you interviewed him?” Gomez stated Taylor was “very uncooperative.” Taylor objected on the grounds of relevance and lack of foundation. Courtney suggested the answer might create Doyle error. The prosecutor stated she believed Taylor made spontaneous statements before receiving Miranda warnings. Outside the presence of the jury, Gomez testified that after he advised Taylor of his rights pursuant to Miranda, Taylor said he wanted an attorney. Gomez told Taylor he wanted to say something, and Taylor replied, “No. I want a lawyer.” Gomez said he was not going to ask Taylor any questions, but he wanted to show him how serious the case against him was. Gomez then showed Taylor the complaint, murder book, and various photographic arrays. Taylor predicted the district attorney’s office would reject the case and he would be released soon. The prosecutor withdrew her question, but Taylor moved for a mistrial. Although the court chastised the prosecutor and lamented the seriousness of her mistake, it concluded there was no Doyle error, denied the mistrial motion, and decided to “clean this up” through an admonition.
After a ten-day recess, the court admonished the jury as follows: “Ladies and gentlemen, when last we were in session, Detective Gomez indicated that in a conversation with Mr. Taylor, Mr. Taylor had been -- I think he characterized -- the question was addressing Mr. Taylor’s demeanor. I believe Detective Gomez indicated he was uncooperative. You are instructed by this court to completely disregard that testimony. Strike it from your notes if you wrote it down.”
Taylor contends the “uncooperative” testimony violated his privilege against self-incrimination and requires reversal.
Doyle, supra, 426 U.S. at page 618, held that “while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”
It is far from certain the jury would understand that Taylor’s “very uncooperative” “demeanor” when Detective Gomez interviewed him was in fact an invocation of his right to silence. “Demeanor” generally refers to “outward behavior or bearing.” (The Oxford American Dictionary of Current English, (Oxford University Press, Oxford Reference Online, 1999) [as of January 13, 2009].) Demeanor thus embraces facial expressions, gestures, eye movement, and other non-verbal matters.
Assuming, for the sake of argument, that Doyle error occurred, it was harmless beyond a reasonable doubt. The uncooperative demeanor testimony was quite brief, especially in relation to the length of the entire trial. The court directed the jury not to consider the testimony, and we presume the jury complied with this order. And in contrast with the adverse inference the jury might have drawn from Taylor’s exercise of his right to silence, the prosecution presented strong evidence of Taylor’s guilt of the charged offenses. Daniels told Detective Gomez that a few minutes before she heard gunshots, Taylor, Courtney, and Harold Blaylock drove up in the white Tahoe. Courtney was angry that McGuire and other Squiggly Lane gang members in a black Corolla had shot his car and nearly killed him. Taylor asked Daniels and Mackson if they knew where to find the black Corolla. Mackson also told Gomez that Taylor, Courtney, and Harold Blaylock drove up in the white SUV, and Courtney was upset because the windows in his car were broken when McGuire and others shot at him from a black Corolla. Daniels admitted she testified at the preliminary hearing that Courtney said he wanted to “murk,” i.e., murder, the people who had shot at him. After that, Taylor drove the group away in the white Tahoe. McGuire and Allen both described the assailants’ vehicle as a white Tahoe, and, according to Gomez, McGuire identified Courtney and Harold Blaylock as two of its occupants.
Daniels told Detective Gomez that a few minutes after she heard shots, Taylor returned alone in a different car to her location on Hammond Street. He had two handguns, said he needed to leave, and wanted Mackson to go with him. The next day at the gas station, Taylor “put in … little comments” as Courtney described the murder and attempted murder for Daniels and Mackson. Appellants gave Daniels and Mackson guns to transport to Courtney’s home. Courtney then fled to Atlanta, and Taylor also attempted to do so. In April 2006 Taylor threatened that Daniels would “pay” if she testified against him. Taylor also attempted to pressure Tiffiny White to provide him with an alibi and, apparently, to manufacture evidence by purchasing gun-shaped cigarette lighters that could be introduced in conformity with Mackson’s ultimate testimony that Taylor displayed gun-shaped lighters, not real guns, when he returned to see Daniels and Mackson after the shooting.
In light of this very persuasive evidence of Taylor’s guilt, it appears beyond a reasonable doubt that Detective Gomez’s brief and unexplained reference to Taylor’s “very uncooperative” “demeanor” did not contribute to the jury’s verdict. (Quartermain, supra, 16 Cal.4th at p. 621.)
II. Denial of severance motions
A. Appellants’ motions to sever their trials
Prior to trial, Taylor sought a separate trial. The court denied the request on the ground of cross-admissibility and the convenience and safety of the witnesses. Just after the jury was sworn, Courtney “renewed” the severance motion. The court again denied it. Courtney later asserted a “continuing motion to sever,” arguing “the so-called snitching … spills over onto my client.” The court found no prejudicial effect and implicitly denied the motion.
Appellants contend the trial court erred by refusing to sever their trials.
A single trial of persons jointly charged with an offense is preferred. (Pen. Code, § 1098.) Severance is in the trial court’s discretion, but should generally be granted where there is an incriminating confession, prejudicial association with co-defendants, conflicting defenses, a possibility that at a separate trial a co-defendant would give exonerating testimony, or a likelihood of confusion from evidence on multiple counts. (People v. Pinholster (1992) 1 Cal.4th 865, 932.) The trial court’s ruling is reviewed on the basis of the facts known to the court at the time of the hearing on the motion. (Ibid.) However, where consolidation results in gross unfairness at trial, a conviction may be reversed even though the original ruling was not an abuse of discretion. (Id. at p. 933.)
Neither inconsistent defenses nor one co-defendant’s attempt to shift blame onto the other creates gross unfairness or entitles defendants to separate trials. (People v. Box (2000) 23 Cal.4th 1153, 1196; People v. Keenan (1988) 46 Cal.3d 478, 500.) Prejudicial association with a co-defendant who was a crime partner is also insufficient. (People. v. Cummings (1993) 4 Cal.4th 1233, 1286.)
Appellants were charged with the same crimes, in which they participated jointly and simultaneously. Neither appellant confessed or made incriminating admissions. The trial of this case was extremely lengthy. Most of the percipient witnesses were reluctant to testify, and there was evidence of an attempt to intimidate at least one of them. Trying appellants separately would have created a strong risk that witnesses would become unavailable for the second trial. The strength of the prosecution’s case against each appellant was approximately equal. Nothing in the record indicates that either appellant would have provided exonerating testimony at a separate trial. Accordingly, the trial court did not abuse its discretion by denying appellants’ motions for severance.
B. Courtney’s motion to sever trial of felon in possession charge
As previously discussed, appellants sought to exclude evidence of the recovery of .22 caliber and 9 millimeter pistols from the Courtney home. When the trial court denied that motion, appellants unsuccessfully sought to sever the trial of the possession counts. Appellants contend the court erred by denying that motion to sever.
Offenses that are of the same class of crime or are connected in their commission may, in the trial court’s discretion, be charged and tried together. (Pen. Code, § 954.) Cross-admissibility of evidence is not required. (Pen. Code, § 954.1; Ochoa, supra, 26 Cal.4th at p. 423.) However, severance may be required if joinder would be so prejudicial that it would make the trial unfair. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244.) Relevant factors include whether evidence would be cross-admissible in separate trials; whether some of the charges are unusually likely to inflame the jury against the defendant; whether the prosecution has joined a weak case with a strong case, so that there might be a spillover effect from the aggregate evidence; and whether any of the charges carries the death penalty or their joinder turns the matter into a capital case. (Id. at p. 1244.) The party seeking severance must clearly show a substantial risk of prejudice from joinder and that this risk outweighs the benefits of joinder, such as timely disposition of criminal charges and conservation of judicial resources and public funds. (Ibid.; People v. Bean (1988) 46 Cal.3d 919, 939-940.)
If the trial court severed trial of the firearm possession charges, the prosecution would no doubt have introduced evidence of appellants’ transfer of the guns to Daniels and Mackson, the transportation of the guns to the Courtney home, and the subsequent recovery of guns from that home in the separate trial of the possession charges. Appellants would no doubt have challenged Daniels’s credibility as vigorously in a separate trial as they did in the consolidated trial. Accordingly, a significant portion of the evidence would have been cross-admissible in separate trials. This dispels any inference of prejudice from the consolidated trial. (People v. Carter (2005) 36 Cal.4th 1114, 1154.) Moreover, there was no danger the appellants’ possession of the guns would inflame the jury and lead it to convict appellants upon the far more violent and egregious murder and attempted murder charges. Accordingly the trial court did not abuse its discretion in denying appellants’ motion to sever, and the consolidated trial did not result in gross unfairness amounting to a denial of due process. (People v. Arias (1996) 13 Cal.4th 92, 127.)
III. Sufficiency of evidence
Appellants contend the evidence was insufficient to support their convictions because Daniels and Mackson repudiated their out-of-court statements to Detective Gomez.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
A jury may properly rely on the substance of a witness’s repudiated out-of-court inconsistent statement in reaching its verdict, and such a statement is sufficient evidence to support a conviction. (Evid. Code § 1235; People v. Brown (1984) 150 Cal.App.3d 968, 972 (Brown).) Weaknesses, conflicts, and inconsistencies are for the jury to evaluate and do not justify the reversal of a judgment. (People v. Allen (1985) 165 Cal.App.3d 616, 623.)
Appellants’ contention relies heavily upon In re Miguel L. (1982) 32 Cal.3d 100 (Miguel L.), which involved “highly prejudicial, but repudiated inconsistent statements, of one who, had formal criminal proceedings been involved, would have been an uncorroborated accomplice to the charged crime. The case effectively applied to juvenile court proceedings the rule of Penal Code section 1111, that a conviction cannot be had upon the uncorroborated testimony of an accomplice.” (Brown, supra, 150 Cal.App.3d at p. 972.) Mackson and Daniels may have been accessories after the fact, but appellants do not contend they were accomplices, and the record does not support such a contention. Moreover, Miguel L. relied upon People v. Gould (1960) 54 Cal.2d 621, which was expressly overruled in People v. Cuevas (1995) 12 Cal.4th 252. Cuevas rejected the rule that an out-of-court identification must be corroborated by other evidence tending to connect the defendant to the crime and held “the sufficiency of an out-of-court identification to support a conviction should be judged by the substantial evidence standard ….” (Id. at p. 277.)
Even if Miguel L. survived Cuevas and were applicable here, Montiel, supra, 5 Cal.4th at p. 929, footnote 25, supports the sufficiency of a repudiated extrajudicial statement to support a conviction where there is some modicum of corroboration. Here, Daniels’s extrajudicial statement was corroborated by, inter alia, recovery of the two guns at the Courtney home; Courtney’s phone records, which proved he fled to Atlanta; Mackson’s and Daniels’s testimony regarding the window repair; the testimony of the window repair company employees regarding the window replacement and payment with a bad check; and Mackson’s admission in his testimony that he and Taylor attempted to take a long trip but suffered a car breakdown.
As previously discussed, the prosecution presented a very strong case with respect to each appellant. Appellants’ sufficiency of evidence contention has no merit.
IV. Verdicts on greater and lesser included offenses
With respect to count 2, the court instructed the jury that it could convict appellants of assault with a firearm as a lesser included offense of attempted murder. The jury, however, filled out and signed the guilty verdict forms for both attempted murder and assault with a firearm, for each appellant. The clerk did not include the assault with a firearm verdicts when reading the verdicts. The court reminded the jury it had “instructed you that if you were to find a defendant guilty of the attempted murder in the count 2, that you should not address the lesser-included charge of 245(a)(2), assault with a firearm. The court received verdict forms that you, in fact, did address that count. The court cannot accept those verdicts on the lesser-included charge to count 2, assault with a firearm. All right? I’ll ask you individually at this time whether or not the verdicts as read by the clerk of the court were, in fact, your verdicts and special findings, and you may answer ‘yes’ or ‘no.’” The court polled the jury, and each member responded “Yes.” Neither appellant objected to the court’s procedure.
The court used CALJIC No. 17.10, tailored to the case: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged in Count 2, Attempted Murder, you may nevertheless convict him of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. [¶] The crime of Assault With A Firearm is lesser to that of Attempted Murder, charged in Count 2. [¶] Thus, you are to determine whether the defendant is guilty or not guilty of the crime charged in Count 2 or of the lesser crime. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdict. However, the court cannot accept a guilty verdict on the lesser crime of Assault With A Firearm, unless you have unanimously found the defendant not guilty of the charged greater crime of Attempted Murder.”
Relying upon People v. Wissenfield (1951) 36 Cal.2d 758 (Wissenfield), appellants contend the trial court erred by failing to direct the jury to reconsider its verdicts.
A defendant may not be convicted of both a greater offense and a necessarily included offense based upon the same set of facts. (People v. Sanchez (2001) 24 Cal.4th 983, 987, disapproved on another ground in People v. Reed (2006) 38 Cal.4th1224.) “Conviction of a lesser included offense is an implied acquittal of the offense charged when the jury returns a verdict of guilty of only the lesser included offense. [Citation.] When the jury expressly finds defendant guilty of both the greater and lesser offense, however, there is no implied acquittal of the greater offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.” (People v. Moran (1970) 1 Cal.3d 755, 763 (Moran).)
In Wissenfield, supra, 36 Cal.2d 758, the appellant argued the court committed prejudicial misconduct by directing a jury to return to the jury room and select between its guilty verdicts upon the greater and lesser included offenses. The California Supreme Court found the trial court’s procedure acceptable. (Id. at p. 766.) The court did not, however, require trial courts to follow such a procedure.
The procedure adopted by the trial court here served to ensure that the jury’s actual intent was to convict of the greater offense. At least in the absence of any contemporaneous objection by appellants, the trial court was not required to adopt the Wissenfield procedure. Indeed, if the trial court had not noticed the error, the remedy on appeal would have been to reverse the lesser included offense. (Moran, supra, 1 Cal.3d at p. 763.) Accordingly, appellants’ claim has no merit.
V. Sentencing error claims
A. Courtney
1. Adequacy of advisement
Courtney notes the trial court failed to apply the provisions of the Three Strikes Law to him by doubling the term or minimum parole eligibility period for each count. However, he argues remand for a court trial on the prior conviction allegations and resentencing is required because the trial court did not advise him his admission of the “strike” allegation would result in a doubling of the term or minimum parole eligibility period. Respondent admits the trial court failed to properly advise Courtney of this consequence but argues the error was harmless.
A defendant who admits a prior criminal conviction must first be advised of the increased sentence that might be imposed as a result of his admission. (In re Yurko (1974) 10 Cal.3d 857, 864.) However, unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is merely a judicially declared rule of criminal procedure, not a constitutional requirement. (Ibid.) Accordingly, a failure to advise of the penal consequences of admitting a prior conviction is waived if not raised at or before sentencing. (People v. Walker(1991) 54 Cal.3d 1013, 1023 (Walker); People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.)
Courtney never objected to the court’s failure to inform him of the penal consequences of admitting the prior strike allegation and thus arguably waived his right to raise this contention on appeal. In any event, however, the court’s error was subject to harmless error analysis. “[A] defendant (even on direct appeal) is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement.” (In re Moser (1993) 6 Cal.4th 342, 352; Walker, supra, 54 Cal.3d at pp. 1022-1023.) Nothing in the record demonstrates that Courtney would not have admitted the strike allegation if he had been properly advised of its consequences. And, as respondent notes, even without second strike sentencing, Courtney was required to serve approximately 107 years before he would be eligible for parole. It appears from the record Courtney was 30 years old when he was sentenced. Courtney is thus highly unlikely ever to be paroled, with or without the additional 40 years that would be added through application of the Three Strikes Law. Accordingly, we cannot conclude on a silent record that Courtney would not have admitted his strike prior if the trial court had properly advised him of the sentencing consequences.
2. Count 1
As the parties agree, the trial court erred by failing to double Courtney’s term for murder and by imposing a 10-year gang enhancement. Accordingly, we modify Courtney’s term on count 1 to be 75 years to life. (People v. Autry (1995) 37 Cal.App.4th 351, 364 [unauthorized sentence may be corrected on appeal even if it increases the sentence].)
3. Count 2
As the parties agree, the trial court erred by failing to double Courtney’s term for attempted murder. Accordingly, we modify Courtney’s term on count 1 to be 55 years to life.
4. Count 3
The parties also agree the trial court erred by treating the term on count 3 as a subordinate term. The parties agree the trial court should have imposed the middle term of 3 years, doubled to 6 years as a second strike sentence.
B. Taylor
Respondent notes the court “did not understand its discretion,” and committed the same error on count 3 with respect to Taylor. Taylor does not concede that the trial court would or should have chosen the middle term. Under the circumstances, appellant is entitled to resentencing on count 3. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
VI. Cumulative error
Appellants also contend the cumulative effect of various claimed errors requires reversal. The errors we found were extremely few, and, as discussed above, they were harmless. We conclude these errors, considered together, did not undermine the evidence establishing appellants’ guilt, and there is no reasonable probability either appellant would have achieved a more favorable result absent these errors.
DISPOSITION
The convictions are affirmed. With respect to Taylor, the sentence on count 3 is vacated and the cause remanded for resentencing on count 3. With respect to Courtney, the sentence is modified as follows: for count 1, the 10-year gang enhancement is stricken and the term of 25 years to life for murder is doubled pursuant to sections 667, subds. (b)-(i) and 1170.12, subds. (a)-(b); for count 2, the term of 15 years to life for attempted murder is doubled pursuant to sections 667, subds. (b)-(i) and 1170.12, subds. (a)-(b); for count 3, the term is modified to be 3 years. In all other respects, the judgments are affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.