Opinion
C060503
08-05-2011
THE PEOPLE, Plaintiff and Respondent, v. DEANDRE DELONEY et al., Defendants and Appellants.
Opinion following recall of remittitur
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No.
07F01802)
A jury found defendant Jimmy Lee Jones guilty of assault with a firearm on Andrelia, a minor (Pen. Code, § 245, subd. (a)(2); count 1), shooting at an occupied vehicle (§ 246; count 2), and unlawful possession of a firearm (§ 12021, subd. (c)(1); count 3.) The jury also found true allegations Jones personally used a firearm in the commission of count 1 (§ 12022.5, subd. (a)(1)); personally discharged a firearm and proximately caused great bodily injury to Andrelia in the commission of count 2 (§§ 12022.53, subd. (d), 12022.7); personally inflicted great bodily injury to Andrelia in the commission of counts 1 and 2 (§ 12022.7, subd. (a)); and committed counts 1 and 2 for the benefit of or in association with the Del Paso Heights Bloods (DPHB), a criminal street gang (§ 186.22, subds. (b)(1), (4)).
Further unspecified references are to the Penal Code.
Defendants were tried jointly but with separate juries.
The jury found defendant Deandre Deloney aided and abetted Jones in the commission of counts 1 and 2, and thus, was guilty of those offenses. The jury also found true allegations Deloney (1) was a principal in the commission of count 1 and a principal was armed with a firearm (§ 12022, subd. (a)(1)); was a principal in the commission of count 2 and a principal personally discharged a firearm and proximately caused great bodily injury to Andrelia (§§ 12022.53, subds. (d), (e)(1), 12022.7); and committed counts 1 and 2 for the benefit of or in association with the DPHB (§ 186.22, subds. (b)(1), (4)).
The trial court sentenced Jones to an aggregate term of 40 years to life in state prison, consisting of 15 years to life on count 2 (§§ 246, 186.22, subd. (b)(1), (4)(B)), plus an additional 25 years to life for personally discharging a firearm and proximately causing great bodily injury. The court sentenced Jones to a concurrent 20 years on count 1, consisting of three years for the underlying offense, plus a consecutive four years for personally using a firearm, plus a consecutive three years for personally inflicting great bodily injury, plus a consecutive 10 years for the gang enhancement.
Where, as here, the trial court fails to specify whether a sentence on a subsequent count is to run concurrently or consecutively, the term runs concurrently. (§ 669.)
The trial court stayed Jones's sentence on count 3 and the remaining enhancements pursuant to section 654.
The court sentenced Deloney to an aggregate term of 30 years to life, consisting of five years on count 2, plus a consecutive 25 years to life for being a principal in the commission of count 2 where a principal personally discharged a firearm and proximately caused great bodily injury. The court sentenced him to a concurrent nine years on count 1, consisting of three years for the underlying offense, plus one year for being a principal in the commission of count 1 where a principal was armed with a firearm, plus five years for the gang enhancement.
The trial court stayed Deloney's sentence on the gang enhancement on count 2 pursuant to section 654.
Defendants appeal, contending (1) there is insufficient evidence to support the jury's findings that Jones did not act in self-defense in committing counts 1 and 2 and that Deloney aided and abetted in the commission of those offenses; (2) the court prejudicially misled the jury in responding to a question concerning "mutual combat" and abused its discretion in refusing Jones's request to reopen closing argument on that issue; (3) there is insufficient evidence to support the gang enhancements; (4) the court abused its discretion in admitting evidence concerning gangs and gang affiliations; (5) the court erred in admitting evidence that an unidentified witness stated defendants shot Andrelia; (6) the court erred in excluding evidence that others claimed responsibility for shooting Andrelia; (7) their convictions were obtained through the knowing use of false testimony in violation of Napue v. Illinois (1959) 360 U.S. 264 (Napue); (8) the prosecutor committed misconduct during closing arguments; and (9) their sentences on count 1 must be stayed pursuant to section 654, and the abstracts of judgment must be corrected to accurately reflect their sentences.
We shall conclude the trial court abused its discretion in admitting evidence that an unidentified witness stated defendants shot Andrelia, but find that the error was harmless with the exception of the jury's finding that Jones personally inflicted great bodily injury to Andrelia. We shall reverse that finding and strike the three-year enhancement for personally inflicting great bodily injury appended to Jones's sentence on count 1. We shall further conclude that defendants' sentences on count 1 must be stayed pursuant to section 654. We shall affirm the judgments in all other respects. Finally, we shall direct the trial court to amend the abstracts of judgment to reflect those modifications, as well as the following: defendants' liability for victim restitution is joint and several.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Prosecution
On February 17, 2007, 15-year-old Andrelia and her friends Raukiya and Keeburee went to the home of Keeburee's boyfriend "Baby J" to smoke marijuana. Baby J lived in an area of Del Paso Heights known as "the Flats." While they were there, Keeburee got upset and left. The others followed her down the street and around the corner near Deloney's house. As they walked past Deloney's house, Keeburee called Baby J a "bitch." Defendants, O'Neil Deloney, and two other men were in Deloney's front yard and told Baby J he should slap Keeburee. Baby J responded that he was going to get his sister to fight Keeburee. Keeburee began yelling at the men, and they told her, "Bitch, you ain't nobody, nobody special."
To avoid confusion, we refer to O'Neil Deloney by his first name.
Keeburee telephoned her brother Anthony Ivy and announced that her brothers were coming over. Deloney said he was going to call some girls, and Keeburee, Andrelia, and Raukiya went to Raukiya's house to wait for Keeburee's brothers and to prepare to fight the girls Deloney said he would call.
A short time later, Keeburee's brothers--Anthony, Muhammad, and Malcolm Ivy--arrived, along with Muhammad's "baby mama" Latoya Taylor, Rayshawn Smith, and an unidentified man and woman. Everyone except Raukiya drove to Deloney's house in two cars. Raukiya arrived later. Raukiya's little brother Famous, who was 14-years-old at the time, overheard Keeburee talking about fighting some girls and rode his bike to a corner near Deloney's house to watch.
To avoid confusion, we shall refer to Anthony, Muhammad, and Malcolm Ivy by their first names.
When the two cars pulled up near Deloney's house, everyone but the unidentified man got out. Keeburee picked up a golf club and used it to knock on the door to Deloney's house. An elderly woman answered, and Keeburee demanded to speak to Deloney. Deloney and O'Neil appeared in the driveway, and everyone began yelling. Muhammad challenged O'Neil to a fight, and Deloney said he would get someone to fight Keeburee. Anthony then stepped in and told O'Neil, "I'm "fittin' to beat your ass." Anthony and O'Neil squared off and engaged in a fist fight. Anthony quickly overpowered O'Neil. While Anthony had O'Neil on the ground, Anthony said, "Nigga, this is Oak Park. This is Zilla." "Zilla" is a street gang from Oak Park that has "clicked" up with the Oak Park Bloods, meaning the two gangs "work together" and have "become almost the same gang." Anthony told O'Neil to say that "Zilla whipped [his] ass" and that Keeburee was "the best." O'Neil said Keeburee was the best but refused to say anything about Oak Park or Zilla. After he was through with O'Neil, Anthony began calling out his gang, yelling, "[T]his is Oak Park. This is Zilla. Whoop de whoop. Fuck the Flats. . . . All y'all can get it." Jones responded, "Nah, nigga. Fuck Oak Park. This is the Flats." Malcolm then got in Jones's face and said, "This is Oak Park." Jones responded, "I don't give a fuck. You feel me? It's still the Flats. You feel me, nigga. You feel me?" Malcolm said, "Nigga, I'll beat all y'all asses . . . ."
At that point, Andrelia and Raukiya began walking toward Raukiya's house, while Keeburee and the rest of the Oak Park group began walking toward the two cars. As Smith walked toward the cars, he lifted his shirt to reveal a gun in his waistband or pocket and said, "All y'all some bitches, whoop de whoop. All y'all can get it. I'll kill all y'all niggas, whoop de whoop. Don't none y'all niggas want it, woo woo." Meanwhile, the members of the Oak Park group, except Keeburee and Smith, got into the two cars.
Famous testified that Smith pulled the gun out of his pocket enough to reveal the handle. When interviewed by police, Andrelia said Smith displayed the gun in his waistband. At trial, however, she testified that Smith pulled the gun out, waved it around, and pointed it at defendants.
By that time, five or six members of defendants' "crew" were walking up the street and began arguing with Smith and Keeburee. As members of the crew arrived on the scene, Deloney went inside. When he returned, he had a gun and handed it to Jones. Jones then walked into the middle of the street and announced, "You think you're the only one with blaps things.""Blaps" is a slang term used by Bloods to refer to guns. At that point, Andrelia and Raukiya ducked behind a truck. Andrelia could still see Jones and Smith. Smith walked backwards toward one of the cars with his gun pointed straight out, while Jones stood in the middle of the street holding his gun at a 45 degree angle.
At trial, Andrelia testified that Smith waved a gun in Jones's face when Jones walked into the middle of the street. When interviewed by police following the incident, she did not say that he waved it around. Famous testified that Smith did not wave the gun around.
Several shots were fired. Neither Andrelia nor Famous knew who fired the first shot; however, Andrelia testified that the first shot was fired "before I even seen [Jones] lift his arm up." Jones and Smith each fired at least one shot. Famous saw Jones shoot his gun "towards . . . where the truck was, where [his] sister and [Andrelia] was . . . ." Andrelia was struck in the side and left paralyzed from the waist down. Just before she blacked out, Andrelia saw Anthony hanging out of the window of one of the cars with a gun in his hand. She did not know whether he fired the gun.
After the shooting, defendants got into a van and left, while members of the Oak Park group drove out of the neighborhood, leaving Raukiya and Andrelia. Jones was wearing a red shirt at the time of the shooting.
Officer Robert Quinn, a detective in the gang suppression unit and the lead investigator in this case, testified as an expert in African American gangs, specifically the DPHB. His specialty within the gang unit is African American gangs in north Sacramento, including the DPHB. Over the years, he has had contact with members of the DPHB at least 100 times and is familiar with their territory, subsets, symbols, hand signs, tattoos, color, members, and crimes. According to Quinn, the DPHB operate mainly in the Del Paso Heights neighborhood in north Sacramento. The DPHB have numerous subsets, including Elm Street, the Dark Side, and the Flats. The subsets operate in smaller geographic areas within Del Paso Heights. While the DPHB's main rivals are "[a]ny and all Crip sets in Sacramento," they also feud with other Blood sets, including the Oak Park Bloods. The primary activities of the DPHB street gang are murder, attempted murder, assault with a deadly weapon, narcotic sales, robbery, burglary, and auto theft. Quinn testified at trial regarding past felony convictions of members of the DPHB.
Gang members like to broadcast their gang affiliation to other gang members. They do this through words, hand signs, tattoos, and wearing particular colors. Bloods are associated with the color red. According to Quinn, "[i]n the gang culture, respect is almost more powerful than money . . . ." Respect is obtained through fear, intimidation, and the commission of crimes. In gang culture, you lose respect if you are "disrespected" and fail to respond. If a gang member is challenged by a rival gang member and backs down, the gang member loses respect. To retain the respect of other gang members, a gang member must respond to a challenge by meeting the challenge and then taking it to the "next level." For example, "[w]hen another gang [member] . . . yells out in your turf and yells out their gang to you and you don't meet that, then your gang as a whole loses respect as well as you amongst that gang." Likewise, "if that rival gang . . . come[s] into your territory, [and] starts showing off a weapon," "[y]ou would lose respect if you didn't at least meet it or take it to the next level."
Quinn opined that Deloney was an active member of the DPHB street gang at the time of the shooting based on his membership in the Flats, a subset of the DPHB; his six prior arrests for selling marijuana, a primary activity of the Flats and the DPHB; his association with validated members of the DPHB; and his wearing of the color red. Deloney was observed in the company of validated DPHB gang members before and after the shooting. In March 2005, he was seen in the company of Ronny Jones, a validated member of the DPHB and the Flats. In October 2006, he was seen in the company of Christopher Blundt, a validated member of the DPHB and the Flats. When Deloney was arrested in this matter in March 2007, he was with Ronny Jones and was wearing a red sweatshirt.
Quinn also opined that Jones was an active member of the DPHB street gang at the time of the shooting based on his prior arrest for selling marijuana; his membership in the Flats; his association with validated members of the DPHB; and his wearing of the color red. Like Deloney, Jones was seen in the company of validated members of the DPHB before and after the shooting. In August and September 2006, he was seen in the company of Christopher Blundt, a validated member of the DPHB and the Flats. In September 2006, he was seen in the company of Tony Armstrong and Ronny Jones, validated members of the DPHB and the Flats. Moreover, at the time of the shooting and at the time of his arrest a month later, Jones was wearing a solid red t-shirt. In addition, just before the shooting, he used the term "blap," a slang term used by Bloods to refer to a gun.
Finally, Quinn opined that the shooting was gang-related and committed in association with and for the benefit of the DPHB street gang. In support of his opinion, Quinn cited defendants' membership in the Flats, which is "known as a Blood gang subset of the Del Paso Heights Bloods," Jones's statement, "Fuck Oak Park, this is the Flats," and Jones's wearing of the color red.
II
The Defense
Neither defendant testified at trial. During closing arguments, neither defendant disputed that Deloney gave Jones a gun or that Jones fired it. Rather, both argued that Jones acted in self-defense. Deloney also argued that he handed Jones the gun to use to defend himself and Deloney and not to commit assaultive crimes.
DISCUSSION
I
Substantial Evidence Supports Defendants'
Convictions On Counts 1 and 2
Defendants contend there is insufficient evidence to support their convictions for assault with a firearm (count 1) and shooting at an occupied vehicle (count 2). More particularly, they claim there is insufficient evidence to support the jury's implicit finding that Jones did not act in lawful self-defense in committing those offenses.Alternatively, Deloney asserts there is insufficient evidence he aided and abetted Jones in committing the offenses. Both claims lack merit.
Defendants argue both that there is insufficient evidence Jones did not act in selfdefense and that the theories proffered by the prosecutor as to why Jones did not act in self defense were factually inadequate. Because these arguments are two sides of the same coin, we address them together.
A. Right to Self-Defense
The People had the burden of proving beyond a reasonable doubt that Jones did not act in lawful self-defense or defense of another. (People v. Adrian (1982) 135 Cal.App.3d 335, 340; People v. Banks (1976) 67 Cal.App.3d 379, 383-384.) In attempting to satisfy that burden, the prosecutor argued: (1) Jones did not actually or reasonably believe he was in imminent danger of being shot; (2) Jones provoked members of the Oak Park group with the intent of creating an excuse to use force; and (3) Jones and members of the Oak Park group were engaged in mutual combat. Defendants contend that none of those theories are supported by the evidence, and thus, "[t]he jury necessarily based its guilty verdicts on an invalid theory."
Defendants also claim the prosecutor's asserted theory that any actual belief by defendants that they were in imminent danger was unreasonable was not only factually inadequate but legally inadequate. Because that claim is premised on comments made by the prosecutor during closing arguments, we shall treat it as one for prosecutorial misconduct. It is discussed in section VIII, infra.
In addressing whether there is sufficient evidence to support the prosecutor's theories, we view the entire record in the light most favorable to the judgments and presume in support of the judgments the existence of every fact that the jury reasonably could deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Golde (2008) 163 Cal.App.4th 101, 108.)
"For [an assault with a firearm or shooting at an occupied vehicle] to be in self-defense, the defendant must actually and reasonably believe in the need to defend." (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The fear must be of imminent danger to life or great bodily injury. (Ibid. )
Viewed in the light most favorable to the judgment, the evidence showed that Deloney did not obtain and Jones did not display the gun until after members of the Oak Park group were walking toward their cars and members of defendants' crew had arrived on the scene. Moreover, Jones did not immediately start shooting once he obtained the gun. Rather, he walked into the street and toward the Oak Park group with the gun and announced, "You think you're the only one with blaps things." It was only after Jones displayed his gun and made that comment that Smith removed his gun from his waistband. Furthermore, when a gang member is challenged by a rival gang member, the challenged gang member must respond by meeting the challenge or taking it to the next level in order to retain the respect of other gang members. This is especially true where, as here, a rival gang comes into another gang's territory, yells out their gang, and shows off a weapon.
On this record, a juror reasonably could conclude that Jones did not actually believe he or Deloney was in imminent danger of being killed or suffering great bodily injury when he walked into the street with the gun; but rather, was responding to a challenge by a rival gang in an attempt to retain his respect. As discussed in part III, supra, there is substantial evidence defendants committed counts 1 and 2 for the benefit of or in association with the DPHB.
Defendants argue that even if the right to self-defense did not attach at that point, it most certainly did once defendants were being fired upon. According to defendants, "It is inconceivable that Jones did not believe he was in grave peril while he stood in the street watching an adversary firing in his direction."
"'The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.'" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1381, fn. 10.) In other words, if Jones provoked members of the Oak Park group with the intent of creating an excuse to shoot, he had no right to self-defense.
As the People point out, "the evidence indicated that [defendants] made several statements and engaged in actions that the jury could reasonably have interpreted as 'provok[ing] a fight or quarrel with the intent to create an excuse to use force.'" Significantly, the Oak Park group was in the process of leaving when Jones walked into the street, displayed a gun, and yelled, "You think you're the only one with blaps things?" Smith, who had a gun in his waistband and was continuing to argue with Jones, was walking backward toward the cars. Smith did not remove his gun until after Jones walked into the middle of the street, displayed his gun, and announced that Smith was not the only one with a gun. On this record, a juror reasonably could conclude that Jones, by his actions, intended to provoke a gunfight. Accordingly, sufficient evidence supports a finding that Jones did not have a right to self-defense even after Smith and other members of the Oak Park group began shooting.
Because we conclude sufficient evidence supports a finding that Jones intentionally provoked the gunfight, we necessarily reject defendants' contention that the trial court erred in instructing the jury in the language of CALCRIM No. 3472 (Right to Self-Defense: May Not Be Contrived).
Given our conclusions, we need not consider whether sufficient evidence supports a finding that Jones and members of the Oak Park group were engaged in mutual combat or whether Jones reasonably believed he was in imminent danger of being shot. Because the record does not disclose which theory the jury based its finding that Jones did not act in self-defense, we may affirm the judgment so long as there is at least one valid ground for the jury's finding. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129 ["If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground."].) In
Page 17
other words, even assuming the mutual combat or lack of reasonable belief theories were factually inadequate, so long as the record does not indicate the jury based its findings on either of these grounds, reversal is not required where a valid ground for the jury's finding remains. Such is the case here.
B. Aiding and Abetting
Should we conclude, as we have, that there is sufficient evidence to support the jury's finding that Jones did not act in lawful self-defense of himself or others, Deloney contends there is insufficient evidence he aided and abetted Jones in the commission of counts 1 and 2. More particularly, he asserts there is insufficient evidence that, at the time he handed Jones the gun, he (1) "knew Jones intended to use the gun to commit assaultive crimes, not to defend himself or his friends from bodily injury"; and (2) "intended that Jones commit assaultive crimes and not defend himself and [Deloney]." We are not persuaded.
"Under California law, a person who aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator. (§ 31.)" (People v. Prettyman (1996) 14 Cal.4th 248, 259.) "[A]n aider and abettor is a person who, 'acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages, or instigates, the commission of the crime.'" (Ibid.)
When viewed in the light most favorable to the judgment, the evidence shows Deloney aided and abetted Jones in the commission of counts 1 and 2. Defendants were both members of the Flats, a subset of the DPHB. Deloney retrieved the gun and gave it to Jones after members of a rival gang yelled out their gang and displayed a gun in defendants' territory, members of the Oak Park group were walking toward their cars, and members of defendants' "crew" arrived on the scene. Under those circumstances, the jury reasonably could conclude that Deloney knew Jones intended to shoot at members of the Oak Park group in response to the group's insults and taunts and not to defend himself or Deloney, and that Deloney intended to and did assist Jones in doing so by handing him the gun.
II
The Trial Court Properly Instructed The Jury On Mutual
Combat And Did Not Abuse Its Discretion In Declining
Jones's Request To Reopen Closing Argument On The Issue
Jones next contends the trial court misled the jury and prejudiced his defense in responding to a jury question concerning the meaning of "mutual combat." He also asserts the court abused its discretion in denying his request to reopen closing argument to allow him to provide further argument on the issue. Both contentions lack merit.
A. Definition of Mutual Combat
The jury was initially instructed in the language of CALCRIM No. 3471 (Right to Self Defense: Mutual Combat or Initial Aggressor) as follows: "A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if, one, he actually [and] in good faith tries to stop fighting; two, he indicates by words or conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he has stopped fighting; and three, he gives his opponent a chance to stop fighting. If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [¶] If you decide that the defendant started the fight using nondeadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting."
On the second day of deliberations, Jones's jury requested "a more detailed definition of [m]utual [c]ombat." The court responded by providing the following written definition: "1. ' Mutual combat' means not merely a reciprocal exchange of hostilities, but hostilities pursuant to prearrangement, mutual consent, or mutual intention, either express or implied, preceding the initiation of the hostilities. In other words, it is not merely the combat, but the preexisting intention to engage in it that must be mutual. The preexisting intention can occur over a period of time or it may occur in a brief interval. The test is not time, but reflection." At defendants' request, the court also included the following "clarif[ication of] [a] possible ambiguity in Jury Instruction [No.] 3471. Right of Self-Defense: Mutual Combat or Initial Aggressor": "If you decide the parties had a preexisting intention or agreement to engage in mutual combat, you must then decide what that intention contemplated. [¶] If you find that the intention to engage in mutual combat only contemplated the use of non-deadly force by both parties, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the combat, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting. [¶] If you find that the intention to engage in mutual combat contemplated the use of deadly force by both parties, then a person has a right of self-defense only if they follow steps 1 through 3 of Jury Instruction [No.] 3471."
Jones complains that the trial court's use of the term "hostilities," rather than "blows" or "fight" in its definition of "mutual combat" was misleading because "[i]t easily leaves open the possibility [that] verbal hostilities" can constitute combat. Jones also asserts that the court's use of the word "intention," rather than "agreement" in its definition of "mutual combat" was misleading because "[i]t is easily possible for one of the parties to intend to engage in combat while the other does not," which is not "mutual combat." We are not persuaded by either claim.
Jones's arguments fail to consider the court's instructions in their entirety. While the first sentence of the court's definition uses the term "hostilities," the next sentence discusses combat and makes plain that verbal sparring does not amount to mutual combat. Moreover, CALCRIM No. 3471, on which the jury was instructed, repeatedly uses the terms "fight" and "fighting" in discussing mutual combat, and the clarifying instruction given by the court makes plain that combat necessarily involves the use of force. On this record, no reasonable jury would have concluded that verbal hostilities constitute mutual combat.
It is also clear that the "preexisting intent" referenced in the court's definition must be mutual. Indeed, the court's definition of mutual combat explicitly states that "it is not merely the combat, but the preexisting intention to engage in it that must be mutual." (Underlining added.) In other words, the parties must have agreed to engage in combat. No reasonable juror would have concluded from the court's instruction that the intent to engage in mutual combat could be one-sided.
B. Refusal to Reopen Closing Argument
Jones also contends the trial court abused its discretion in refusing his request to reopen closing argument on the issue of mutual combat. We disagree.
Once the court settled on its response to the jury's question, Jones, through his counsel, sought to reopen closing argument to discuss the definition of mutual combat and to argue that Jones did not agree to engage in mutual combat, was prevented from withdrawing from any agreed-upon combat by Smith's escalation of force, and was merely reacting to Smith's escalation of force. The court denied his request, finding its provision of a legal definition of mutual combat did not warrant the reopening of argument, and in any event, Jones had previously argued the points he sought to raise if closing argument was reopened.
While the court had the discretion to reopen closing argument, it did not abuse its discretion in refusing to do so here. (See People v. Young (2007) 156 Cal.App.4th 1165, 1171-1172.) In Young, the jury advised the court that it was deadlocked and that "it was unclear whether 'there's 100 percent understanding from everyone in the box . . . how the lesser charges work with the robbery.'" (Id. at p. 1170.) The court referred the jury to the instructions, and the foreperson responded that "the problem appeared to be a disagreement on 'the perception of the facts' and [he] did not believe any additional time would be helpful in reaching a verdict." (Ibid. ) The rest of the jury agreed that neither additional time nor instruction would be helpful. (Ibid. ) The court asked whether further argument from the attorneys might be helpful, and some of the jurors indicated that it would be. (Ibid. ) Accordingly, the court reopened closing argument for both parties. (Ibid. ) In determining that the trial court acted within its inherent authority and did not abuse its discretion, we explained, "There is authority guiding the trial court's actions with respect to the order of a jury trial and its obligations upon being faced with a deadlocked jury. Section 1093 delineates the order that trial procedures shall follow, including the direction that the prosecutor and defense counsel may argue the case to the court and jury upon the close of evidence. (§ 1093, subd. (e).) Section 1094 grants the trial court broad discretion to depart from the order specified in section 1093. Section 1140 entitles the trial court to ascertain whether there is a reasonable probability a jury deadlock might be broken. [Citations.] When the court is faced with a deadlocked jury, it must proceed carefully, lest its actions be viewed as coercive. [Citation.] At the same time, when faced with questions from the jury, including that they have reached an impasse, 'a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury.' [Citation.]" (Id. at pp. 1171-1172, fn. omitted.) "By asking if additional argument might be helpful, the court did no more than ascertain the reasonable probability of the deadlock being broken and a means by which that might be accomplished. When some of the jurors agreed additional argument might help them in reaching a verdict, it was not inappropriate for the court to seek to offer that alternative to aid the jury." (Id. at p. 1172.)
Conversely, here, the jury did not advise the court that it was deadlocked. Moreover, the jury's question indicated that it needed additional guidance on the law, not that there was disagreement on the facts or the law's application thereto. It cannot seriously be disputed that it is for the trial court, not counsel, to instruct the jury as to questions of law. (People v. Baldwin (1954) 42 Cal.2d 858, 871.) The court did so here, and as previously discussed, we reject Jones's assertion that the court's response to the jury's question was misleading. Moreover, as the trial court found, Jones had already argued that he was not involved in mutual combat, but rather "resisted" it, and that "words are not engaging in [mutual] combat." Jones also noted that Smith had a gun out and was waiving it in the air before he ever had a gun. Accordingly, there was no abuse of discretion.
III
Sufficient Evidence Supports The Gang Enhancements
Defendants next contend there is insufficient evidence to support the jury's findings that defendants committed counts 1 and 2 "for the benefit of or in association with" the DPHB, a criminal street gang. (§ 186.22, subds. (b)(1) and (b)(4)).They observe that there is no evidence that anyone mentioned the DPHB during the dispute and argue that "the only evidence tending to support [the jury's] findings [i]s Detective Quinn's opinion that the Flats is a 'subset' of DPHB." According to defendants, Quinn gave no basis for his opinion, and his opinion alone is insufficient to support a finding that they acted for the benefit of or in association with the DPHB. Defendants are mistaken.
Subdivisions (b)(1) and (b)(4) of section 186.22 provide for sentence enhancements for persons convicted of felonies that are "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." The length of the enhancement depends upon the felony. (§ 186.22, subds. (b)(1), (4).)
During the dispute, Jones repeatedly announced, "This is the Flats" in response to Anthony and Malcolm calling out their gang, Oak Park. Contrary to defendants' assertion, Quinn did state a basis for his opinion that the Flats is a subset of DPHB. He specified that his opinion was "based on [his] experience and [his] contacts with gang members and nongang members in the street . . . ." He then explained that "the Flats are known as a Blood gang subset of the Del Paso Heights Bloods. You ask people who are part of that and they'll tell you that. People who are not a part of that [who] live in the neighborhood . . . explained to me that [the Flats is] a Blood gang, part of [the] DPH[B]." He also noted that graffiti found in the Flats "lets people know that this is DPH[B] and a Blood territory, and then you see Flats on the street."
People v. Williams (2008) 167 Cal.App.4th 983, relied on by defendants, is readily distinguishable. In that case, the court addressed "the relationship that must exist before a smaller group can be considered part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang." (Id. at p. 985.) There, the defendant was convicted of murder and active participation in a criminal street gang. (Ibid. ) On appeal, he challenged the sufficiency of the evidence to support the jury's finding on the gang activity special circumstance and the active participation charge. (Id. at p. 986.) As an initial matter, he argued that the group relevant to the court's determination was the Small Town Peckerwoods and not other groups calling themselves Peckerwoods or some overall Peckerwood gang. (Id. at p. 987.) He asserted that "there was no evidence he was an active participant in any group other than the Small Town Peckerwoods, and there was insufficient evidence of a connection between members of the Small Town Peckerwoods and anyone else." (Ibid., fn. omitted.)
At trial, a police officer opined "that the Peckerwoods are a criminal street gang, as defined by the Penal Code, and that smaller groups, such as the Small Town Peckerwoods, are all factions of the Peckerwood organization." (People v. Williams, supra, 167 Cal.App.4th at p. 987.) He testified that "Peckerwood groups share a White pride or White supremacist ideology, and there is a hierarchy, with 'shot callers' who answer to a higher authority inside the prison system." (Id. at p. 988.) He also testified "that Peckerwoods are not typically organized like other criminal street gangs, however: for the most part, they have no constitution, and are a looser organization with a less well-defined rank structure. Peckerwood groups get together more for bragging than for strategizing, and one group of Peckerwoods will not necessarily know what another group is doing." (Ibid. )
The court observed that the officer's opinion that the Small Town Peckerwoods were part of some larger Peckerwood gang "appears to have been based on commonality of name and ideology, rather than concerted activity or organizational structure." (People v. Williams, supra, 167 Cal.App.4th at p. 988.) In concluding that "only the Small Town Peckerwoods, and not some larger Peckerwood group, may be considered in addressing [the defendant's] claims of evidentiary insufficiency," (id. at p. 989) the court explained that "something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization." (Id. at p. 988.)
Here, the evidence established the Flats and the DPHB were part of the same overall organization. Quinn explained that the Bloods are the "overall umbrella" under which subsets for "major geographical location[s]," such as the DPHB and the Oak Park Bloods, operate. The DPHB primarily operates in the Del Paso Heights neighborhood in north Sacramento. It, in turn, is comprised of numerous subsets, such as Elm Street, the Dark Side, Trigger Mob, and the Flats, which claim different streets or smaller geographical areas within Del Paso Heights. Moreover, evidence that defendants were observed before and after the shooting in the company of men who were validated members of the Flats and DPHB suggested the Flats and the DPHB were engaged in collaborative activities. In sum, the jury's findings that defendants committed the offenses for the benefit of or in association with the DPHB is supported by substantial evidence.
IV
The Trial Court Did Not Abuse Its Discretion
In Admitting Gang Evidence
Jones contends the trial court abused its discretion in admitting evidence concerning gangs and gang affiliations because "there is no evidence that the incidents were gang-related." We necessarily rejected this contention when we concluded that substantial evidence supports the jury's findings that defendants committed the offenses for the benefit of or in association with the DPHB. Moreover, while the incident may have started out as a personal dispute, it quickly escalated. Significantly, both sides repeatedly called out their gang names to one another just prior to the shooting. On this record, Jones's assertion there is no evidence the incident was gang related is spurious.
V
The Trial Court Abused Its Discretion
In Admitting A Statement By An Unidentified
Teenager That Defendants Shot Andrelia
Defendants next contend the trial court prejudicially erred in allowing Officer Steven Davis to testify that he overheard an unidentified teenage girl state that defendants shot Andrelia. Defendants argue the admission of the statement violated their Sixth Amendment rights to confront and cross-examine witnesses against them. They also assert that the trial court abused its discretion in determining the statement was admissible under the spontaneous statement exception to the hearsay rule. (Evid. Code, § 1240).
The People respond that defendants forfeited their Sixth Amendment claim by failing to raise it below, and in any case, the Sixth Amendment is not implicated because the statement was not testimonial. (Crawford v. Washington (2004) 541 U.S. 36, 68 [158 L.Ed.2d 177, 203] (Crawford)). They also assert that the statement qualified as a "spontaneous statement" under Evidence Code section 1240, and thus, its admission did not violate defendants' right to confrontation under the Sixth Amendment and fell within an exception to the hearsay rule. They further argue any error in admitting the statement was harmless.
As we shall explain, even assuming the Sixth Amendment claim was not forfeited, the statement was not testimonial, and thus, did not run afoul of the Sixth Amendment. We do find, however, that the statement did not fall within the spontaneous statement exception; and thus, the trial court abused its discretion in admitting it. While we agree with the People that the error was harmless as to the underlying offenses, the same cannot be said for the personal infliction of great bodily injury enhancement appended to Jones's sentence on count 1. Accordingly, we shall reverse the jury's finding that Jones personally inflicted great bodily injury on Andrelia in the commission of counts 1 and 2 and strike the enhancement.
Officer Davis was the first emergency responder to arrive on the scene. When he arrived, he found Andrelia lying on her back and several people standing near her, including a teenage girl. While he was tending to Andrelia, he overheard the teenage girl talking to someone. Jones objected to Davis testifying as to what he heard the girl say on hearsay grounds. The trial court overruled the objection, concluding the statement was admissible under the spontaneous statement exception to the hearsay rule. (Evid. Code, § 1240.) Thereafter, Davis testified that the girl said defendants shot Andrelia. Davis asked another officer to obtain a statement from the girl, but he did not know if that was ever done.
A defendant's Sixth Amendment right of confrontation is violated by the admission of testimonial statements of a witness who was not subject to cross-examination at trial, unless the witness was unavailable to testify, and the defendant had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68 .) "Testimony" means "'[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" The "core class" of testimonial statements includes affidavits, custodial examinations, prior testimony not subject to cross-examination, and "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" (Id. at pp. 51-52 [158 L.Ed.2d at pp. 192-193].)
Here, Davis overheard the girl tell another bystander defendants shot Andrelia. Her statement was not a solemn declaration or affirmation. Nor was it made under circumstances which would lead an objective witness to reasonably believe the statement would be available for later use at a trial. (Crawford, supra, 541 U.S. at pp. 51-52 [158 L.Ed.2d at pp. 192-193].) As our Supreme Court acknowledged in Crawford, "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Id. at p. 51 .) Accordingly, the statement was not testimonial, and there is no Sixth Amendment issue, even assuming the issue was preserved for review. (Id. at p. 68 .)
Defendants' suggestion that the statement was made in response to questioning by Davis is not supported in the record. After Davis testified that he "heard [the girl] talking to someone," the prosecutor asked, "What did she tell you?" Davis responded, "She told me who shot her, the girl on the ground." The prosecutor then asked, "Who did she tell you?" Davis responded, "Jimmy Jones and DeAndre Deloney." During cross-examination, however, Davis clarified that he overheard a conversation between two individuals.
Defendants also contend the trial court abused its discretion in admitting the statement under Evidence Code section 1240 "because there was no evidence that the teenager was a percipient witness to the shooting."
Evidence Code section 1240 provides that "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." (Italics added.) "It must . . . appear 'in some way, at least, and with some degree of persuasive force' that the declarant was a witness to the event to which [her] utterance relates. [Citation.] Although this does not require direct proof that the declarant actually witnessed the event and a persuasive inference that [s]he did is sufficient, the fact that the declarant was a percipient witness should not be purely a matter of speculation or conjecture." (Ungefug v. D'Ambrosia (1967) 250 Cal.App.2d 61, 68 (Ungefug).)
Ungefug involved a wrongful death action brought by the surviving daughter and husband of a woman fatally injured when she was struck by an automobile. (250 Cal.App.2d at p. 63.) At trial, an ambulance driver was permitted to testify that he "heard someone make the statement that [the victim] had been hit twice, by another car that did not stop . . . ." (Id. at pp. 65-66.) In concluding the trial court erred in admitting the testimony of the ambulance driver, the court found the "defendant failed to show except by the remotest inference, conjecture or speculation that the one who made the statement saw the accident. There is no evidence that there were eyewitnesses to the accident or that there were others in the immediate vicinity of the scene or its occurrence. Not only was the declarant unidentified, there was no evidence that the ambulance driver even saw him or her. Declarant may have been merely repeating what others, including defendant, might have said." (Id. at p. 68.)
Here, as in Ungefug, the declarant was unidentified. Her statement to the other bystander did not indicate she had personally observed the shooting. While there were eyewitnesses to the shooting, there is no evidence that the teenage girl was among them. To the contrary, the evidence reflects that the only girls present were Andrelia, Raukiya, and the two females that arrived with Keeburee's brothers, and the two females that arrived with Keeburee's brothers left immediately after the shooting. On this record, it would be pure speculation to conclude the teenage girl saw defendants shoot Andrelia, as opposed to repeating what someone else might have told her. (Ungefug, 250 Cal.App.2d at p. 68; see also People v. Phillips (2000) 22 Cal.4th 226, 235-237.) Thus, the trial court abused its discretion in admitting the girl's statement.
Defendants contend they were prejudiced by the error because "absent the teenager's statement, the jury may have decided that Jones acted in lawful self-defense." More particularly, they contend that "[b]y saying that [defendants] shot the girl . . ., the teen indicated to the officer that she believed [defendants] were responsible for the shooting; she did not believe they acted in lawful self-defense." The People respond that any error was harmless. They note that it was undisputed that Jones fired the gun and assert that "the matter of whose bullet actually struck Andrelia . . . was not a material issue in the trial, since the theory underlying [defendants'] criminal culpability was proximate cause."
We fail to see how the teenager's statement indicated that she did not believe defendants acted in "lawful self-defense." As defendants readily acknowledge, it is possible to shoot someone in self-defense. The two are not mutually exclusive. Moreover, the prosecutor did not argue or otherwise suggest that the teenager's statement indicated that she believed Jones did not act in self-defense. Indeed, he did not mention the teenager's statement during his closing argument in either case. On this record, it is not reasonably probable that a result more favorable to defendants would have been reached on the underlying offenses in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) The same, however, cannot be said for the personal infliction of great bodily injury enhancement.
The jury found true an allegation Jones personally inflicted great bodily injury on Andrelia in the commission of counts 1 and 2 within the meaning of section 12022.7, subdivision (a), and imposed a three-year enhancement on his sentence on count 1.
Section 12022.7, subdivision (a) provides in pertinent part: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." (Italics added.) "To 'personally inflict' an injury is to directly cause an injury, not just to proximately cause it." (People v. Rodriguez (1999) 69 Cal.App.4th 341, 347-348, cited with approval in People v. Bland (2002) 28 Cal.4th 313, 337.) Thus, in finding that Jones personally inflicted great bodily injury on Andrelia, the jury necessarily concluded Jones shot her. Neither Andrelia nor Famous was able to say who actually shot Andrelia, and the forensic evidence was far from conclusive. Thus, it is reasonably probable that the jury would not have found true the allegation Jones personally inflicted great bodily injury on Andrelia had the teenager's statement not been admitted. Accordingly, we shall strike the enhancement.
VI
The Trial Court Did Not Err In Excluding
Evidence That Anthony and Muhammad Ivy Claimed
Responsibility For Shooting Andrelia
Defendants also contend the trial court erred in excluding evidence that Anthony and Muhammad told Raukiya that they, and not defendants, were responsible for shooting Andrelia. We disagree.
At trial, defendants sought to introduce evidence that after the shooting (1) Muhammad told Raukiya, "I shot Andrelia . . . with my gun[,]" (2) Anthony told Raukiya, "I feel sorry for the niggas that are in jail for something that we did[,]" and (3) Anthony or Muhammad told Raukiya, "I'll shoot you like I shot that bitch." Defendants argued the statements were admissible as declarations against interest because, among other things, the statements "clearly put the declarant[s] at risk of criminal liability in that they are admissions to committing the offense for which the defendants are charged." (Evid. Code, § 1230.) Defendants further argued that the evidence was relevant to a "third party culpability defense . . . ." According to defendants, who shot Andrelia was relevant to "allegations Jimmy Jones personally inflicted great bodily injury and that Jimmy Jones fired unprovoked shots, one of which must have hit the victim." Defendants also asserted that the evidence was relevant insofar as Anthony and Muhammad admitted firing shots during the incident.
The People objected to the admission of the statements, arguing, among other things, that the statements were not trustworthy within the meaning of Evidence Code section 1230. The People claimed that, when considered in context, the statements plainly were "not made to inculpate [the declarant] or even exculpate the defendants; [they were made] only to instill fear in [Raukiya]." The People also argued the statements were unreliable because some of them were demonstrably false.
In ruling the statements were inadmissible, the trial court found "[t]hey're inherently unreliable given the totality of the circumstances and the context within which they were made." The court also noted that "one of the statements by Muhammad is 'I shot Andrelia with my own gun. I went to jail for that.' And that statement was not true, the jail part. It was used to bolster the intimidation or to create further fear by stating something that was flat out not true."
The motion to admit the statements stemmed from a statement Raukiya gave to Sacramento Police Officer J. Scoubes in May 2007, which Scoubes summarized in a report the following day. According to the report, Raukiya telephoned Keeburee in response to a message Keeburee left on Raukiya's "My Space" page. During the conversation, Keeburee accused Raukiya of "snitching" on her and her three brothers in connection with the shooting and threatened to shoot up Raukiya's house and sister. "Anthony Ivy, Muhammed [sic] Ivy, and Malcom [sic] were with Keeburee at the time of the phone conversation. Anthony said, 'We want your head.' Muhammed [ sic] and Malcom [ sic] said, 'We are going to shoot up your house and your grandma's house, you gonna get it.' Muhammed [ sic] said, 'I went to jail over the shooting. I shot Andrelia . . . with my gun, it's a rap for you.' He went on and said, 'If you try to get someone, you know where I stay. I want your head.' Anthony said, 'You are going to get it so watch your back, and I want to come over. I feel sorry for the Niggas that are in jail for something that we did. Your [ sic]next.' Malcom [ sic]and Muhammed [ sic]said, 'I am going to shoot you like I did your friend (referring to Andrelia . . .). You will be rolling in a wheelchair like Andrelia.'"
At a subsequent evidentiary hearing in September 2008, Raukiya testified that she did not recall speaking with Officer Scoubes. She recalled receiving a telephone call from Keeburee, Malcolm, and two other men, whose voices she did not recognize. During the call, someone stated, "I'll shoot you like I shot that bitch," but she could not tell who it was. She also testified that Malcolm, not Anthony, said, "I'm happy them niggas in jail for something that . . . we did." She denied telling law enforcement that Muhammad said, "I shot Andrelia . . . with my gun."
Malcolm, Muhammad, and Anthony each invoked his Fifth Amendment privilege and refused to testify about the shooting or any subsequent conversation with Raukiya.
An out-of-court statement made by an unavailable witness is admissible if the statement, when made, was against the declarant's penal interest, such "that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) The proponent of the evidence "must show that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." (People v. Cudjo (1993) 6 Cal.4th 585, 607.) "To determine whether the declaration passes the required threshold of trustworthiness, a trial court 'may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation.] On appeal, the trial court's determination on this issue is reviewed for abuse of discretion." (Ibid.)
When the statements are considered in context, it is plain that the declarants' intent in claiming responsibility for shooting Andrelia was to intimidate Raukiya. By taking responsibility for shooting Andrelia, the declarants bolstered the credibility of their threats, i.e. if they shot Andrelia, they would be more likely to carry through on their threats to shoot Raukiya, her sister, her house, and her grandmother's house. Because the declarants had a motive to lie about shooting, their statements lacked credibility. Stated another way, a reasonable man in the declarants' position would have taken responsibility for shooting Andrelia even if he did not shoot her in order to convince Raukiya that he would shoot her or someone close to her. (Evid. Code, § 1230.) Moreover, as the trial court observed, the reliability of the statements was also undermined by the fact that another statement made during the same conversation was not true. According to Scoubes' report, Muhammad said, "I went to jail over the shooting. I shot Andrelia . . . with my gun, it's a rap for you." However, Muhammad was never incarcerated in connection with the shooting. As the trial court observed, "I don't know whether the jury should believe 'I shot Andrelia . . . with my own gun' . . . any more than it should believe 'I went to jail for it.' It could . . . well [be] true that neither one of those statements are . . . true . . . ." On this record we have no trouble concluding that the trial court did not abuse its discretion in excluding them.
Because the statements are inherently unreliable, the trial court did not violate defendants' due process rights by excluding the statements. "'The same lack of reliability that makes . . . statements excludable under state law makes them excludable under the federal Constitution.'" (People v. Butler (2009) 46 Cal.4th 847, 867, quoting People v. Livaditis (1992) 2 Cal.4th 759, 780.)
VII
The Prosecution Did Not Commit Napue Error
Defendants next contend that their convictions were obtained through the knowing use of false testimony, and therefore, must be reversed pursuant to Napue, supra, 360 U.S. 264 . We disagree.
On direct examination, the prosecutor asked Quinn, "[W]hat are the primary activities of the Flats subset?" Quinn responded, "Marijuana sales is their number one priority -- or number one primary activity as well as assault with a deadly weapon and murder." Defendants assert that Quinn lied when he opined that one of the Flats' primary activities was murder, and that the prosecutor knew this testimony was false and failed to correct it on the record.
"[A] prosecutor's knowing use of false evidence or argument to obtain a criminal conviction or sentence deprives the defendant of due process . . . ." (People v. Sakarias (2000) 22 Cal.4th 596, 633 [relying on Napue, supra, 360 U.S. 264 and other decisions].) The defendant bears the burden of proving by preponderance of the evidence that a prosecution witness lied. (In re Malone (1996) 12 Cal.4th 935, 961, 965-966.)
As a preliminary matter, the People argue review of this claim has been forfeited because defendants failed to raise the specific objection at trial or to request an appropriate admonishment. We agree. Had defendants objected and had it been determined that Quinn had testified falsely, the court could have admonished the jury to disregard that testimony. That was not done. Accordingly, defendants forfeited the issue. (People v. Hill (1998) 17 Cal.4th 800, 820.) Even assuming defendants did not forfeit review, defendants failed to prove Quinn lied.
Defendants surmise that Quinn's testimony was false because "[i]f [any of the five validated members of the Flats] 'consistently and repeatedly' committed murder, the prosecutor would have said so. He did not. The Flat Dog gang would be all over the internet. It is not. The Flats would have been named in the prosecutor's section 186.22 allegations. It was not." The prosecutor's failure to state that members of the Flats "'consistently and repeatedly' committed murder" and the other factors cited by defendants do not prove that Quinn's testimony was false. Moreover, the record is devoid of such evidence. Instead, during cross-examination when Jones's counsel asked Quinn to confirm that "Flat Dogs . . . don't particularly do violent crimes." Quinn disagreed, responding, "Yes, ma'am they do." Defendants' claim that the prosecutor committed Napue error fails.
VIII
The Prosecutor Did Not Commit Misconduct
During Closing Argument
Defendants contend the prosecutor's purported theory that any belief by defendants that they were in imminent danger was unreasonable was legally inadequate, and thus, their convictions for counts 1 and 2 must be reversed. Because this contention is premised on comments made by the prosecutor during closing argument, it is properly analyzed as a claim of prosecutorial misconduct. As we shall explain, Deloney forfeited the claim by failing to raise it below, and in any case, when considered in context, the prosecutor's comments were proper.
As a preliminary matter, we observe that Deloney did not object to the challenged comments below. There is no indication that a meritorious objection would have been futile, and an admonition could have cured any potential harm resulting from the perceived misconduct. Accordingly, he forfeited the issue on appeal. (People v. Farnam (2002) 28 Cal.4th 107, 199-200.) In any event, no instance of prejudicial misconduct appears.
Jones objected to the prosecutor's comments as improper "public policy argument," and the trial court overruled the objection.
In order to obtain reversal under the federal Constitution, any prosecutorial misconduct must be so egregious that it results in unfairness and constitutes a denial of due process. (People v. Prieto (2003) 30 Cal.4th 226, 260.) Prosecutorial conduct that does not render a trial fundamentally unfair is misconduct under state law only when it attempts to persuade the trier of fact with reprehensible or deceptive methods. (Ibid.)
Defendants claim the prosecutor improperly argued that any actual belief by defendants that they were in imminent danger was unreasonable "since they were gang members taking part in an escalating gang conflict," "gang members do not 'get' a right of self defense when they are in an escalating gang conflict," and "the jury itself decides what the law is and the jury should decide that in gang fights, gang members have no right to self-defense . . . ."
In support of their assertions, defendants point to two portions of the prosecutor's closing argument in Deloney's case: First, the prosecutor argued: "If you find that the beliefs were honest; you have to decide were they reasonable, okay? You have to decide whether somebody who is involved in an escalating gang conflict gets a reasonable right of self defense. You have to decide that Mr. Deloney is on the phone, and a bunch of his home boys show up, whether that points to a reasonable self defense. You have to decide whether the fact that he gets a gun and immediately gives it up to his buddy leads to a reasonable conclusion of self-defense."
Later, at the conclusion of his argument, the prosecutor stated, "At the end of the day ladies and gentlemen, you decide reasonableness. You are representatives of our community, and you decide in this situation whether this is the kind of situation you want self defense to be available on in our community. And if, at the end of the day, you find a situation where two gangs square off, fight, yell their gang stuff, mutually arm themselves, that that leads to self defense for the person who shoots second, then that's your right. That's why we have the jury system. [¶] And if that's what you decide, it is not proven who shot first, since the tie goes to the defendant, you should assume that Mr. Jones shot second, okay? You should make that assumption because I certainly haven't proven beyond a reasonable doubt that he shot first. And if you decide in this situation that you want self-defense to apply, then that's your right and they are not guilty. Mr. Deloney is not guilty. [¶] But if you find that, in our community, gangs cannot act like this, that they don't get to square off, yell their gang slogans, fight each other, arm themselves, talk trash back and forth, and then have a shootout, and it comes down to a matter of timing of who shot first and who shot second, then they're absolutely guilty. You get to apply the law. You get to decide how this situation is evaluated in Sacramento County." The prosecutor made similar statements during his closing argument in Jones's case.
When the prosecutor's comments are considered in context, it is clear that he was responding to defendants' anticipated argument that Jones necessarily was acting in self-defense because he fired only after he was fired upon. Indeed, both defendants argued just that. The prosecutor argued such a result would not be reasonable under the circumstances of this case, which he claimed involved an "escalating gang conflict" during which "two gangs are squaring off, fighting, yelling gang stuff, [and] arming themselves . . . ." As the prosecutor argued elsewhere in his closing, if defendants intentionally provoked the gunfight or were engaged in mutual combat, they did not have a right to self-defense even if Jones did not shoot until after he was fired upon. The prosecutor's comments were fair commentary on reasonable inferences to be drawn from the evidence. (People v. Farnam, supra, 28 Cal.4th at p. 200; People v. Williams (1997) 16 Cal.4th 153, 221.)
Among other things, Deloney argued: "[T]he right of Jimmy Jones to self-defense attached after the person from Oak Park shot first. I am not saying that he had a right of self-defense before then, but I think when I get going through the evidence the only reasonable conclusion is that somebody from Oak Park shot first and that Jimmy Jones shot in response." Jones, likewise, argued, "Not until the time that they're shooting does Mr. Jones shoot. That's self-defense, ladies and gentlemen."
Nor do we construe the prosecutor's argument as urging the jury to disregard the law, as defendants suggest. In any case, the prosecutor clarified the issue during his rebuttal. In response to Deloney's argument that the jury should not "accept the [prosecutor's] invitation to essentially disregard the law" and find that Jones did not have a right to self-defense simply because he is a gang member and armed himself, the prosecutor stated, "I never said ignore the law of self-defense. . . . [¶] I hope none of you got that from my argument. Okay? . . . [¶] . . .[¶] What I was saying in my argument about you apply the law and you decide how things go in Sacramento County is simply that self-defense is based and it's predicated entirely upon a jury deciding that the defendant actually believed in the danger, and was it reasonable. And the reasonable standard. There's no definition in there. You decide what your definition of reasonable is. And what I was saying is: Follow the law, but you decide what's reasonable. And if you find that two gangsters squaring off and shooting at each other, nobody had the right of self-defense, that sounds reasonable to me."
Jones, through his counsel, also argued that everybody, including gang members, have a right to self-defense. Jones further argued that the prosecutor "wants you to look past the issues of self-defense and say, kind of on a public policy argument there, that because there's a gang situation, there is no right to self-defense. There is nothing in the law that says that a person who is involved in a gang conflict does not have a right to self defense." Later, during rebuttal, the prosecutor stated, "This isn't a defense situation. This is gangsters arming themselves and having a shootout. And you do get to apply your reasonableness standard as to whether this is selfdefense and whether you want to apply it in this case based on these facts."
The jury was instructed on the law of self-defense. Of particular relevance here, the jury was instructed that "[t]he defendant must have believed there was imminent danger of violence to himself or someone else. Defendant's belief must have been reasonable and he must have acted only because of that belief. [¶] . . . [¶] In deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed." The jury was also instructed that it was to follow the law as instructed and to disregard the attorneys' arguments to the extent they conflicted with the instructions given. We presume the jury followed the court's instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) On this record, we conclude "'there is [not] a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (People v. Prieto, supra, 30 Cal. 4th at p. 260.)
The jury was instructed in the language of CALCRIM No. 3470 in pertinent part as follows: "Self-defense is a defense to the crimes charged in counts 1 and 2. The defendant is not guilty of that crime if he used force against the other person in lawful self-defense or defense of another. [¶] The defendant acted in lawful self-defense or defense of another if, one, the defendant reasonable believed that he or someone else was in imminent danger of suffering bodily injury; two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and three, the defendant used no more force than was reasonably necessary to defend against that danger. [¶] . . . The defendant must have believed there was imminent danger of violence to himself or someone else. Defendant's belief must have been reasonable and he must have acted only because of that belief. [¶] . . . [¶] In deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed."
IX
Defendants' Sentences On Count 1 Must Be Stayed
And The Abstracts Of Judgment Amended
Defendants contend, and the People concede, that the judgments must be modified to stay defendants' sentences on count 1. Deloney further asserts, and the People concede, that his abstract of judgment must be amended to reflect that defendants are jointly and severally liable for the victim restitution imposed, and that he was sentenced to an indeterminate term of 25 years to life. We agree defendants' sentences on count 1 must be stayed and that the abstracts must be amended to reflect defendants' liability for victim restitution is joint and several. We disagree, however, that Deloney's abstract of judgment must be amended to reflect that he was sentenced to an indeterminate term of 25 years to life under section 12022.53, subdivisions (d) and (e)(1). As we shall explain, the abstract of judgment that sets forth the 25 year sentence pertains only to the indeterminate portion of this sentence. Thus, it is clear that the 25-year sentence is in fact 25 years to life.
Section 654, subdivision (a), provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Italics added.) Section 654 has been interpreted to prohibit multiple punishments for a single act as well as an indivisible course of conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
As the People concede, "[t]he factual predicate for the convictions in counts [1] [assault with a firearm] and [2] [shooting at an occupied vehicle] arose from Deloney handing Jones a firearm, and Jones firing the weapon toward Smith and the rest of the [Oak Park] group in their cars. As a result, [defendants'] convictions in counts [1] and [2] arose from a single act and an indivisible course of conduct." Indeed, at sentencing, the trial court agreed that counts 1 and 2 were "alternative statements of the same conduct." Nevertheless, the court sentenced Jones and Deloney to concurrent terms on counts 1 and 2. That was error. (§ 654, subd. (a).) Because count 2 provides for the longest potential term of imprisonment, defendants' sentences on count 1 must be stayed. (Ibid.)
Turning to the abstracts of judgment, at sentencing, the trial court ordered that the victim restitution "would be a joint and several obligation . . . ." However, neither abstract of judgment reflects such an order. Moreover, at sentencing the trial court sentenced Deloney to a consecutive term of "25 years to life," as specified in section 12022.53, subdivision (d), for personally discharging a firearm and proximately causing great bodily injury in the commission of count 2. Deloney complains that his abstract of judgment reflects that he was sentenced to 25 years for the enhancement. The abstract to which Deloney refers is entitled, "ABSTRACT OF JUDGMENT - PRISON COMMITMENT -INDETERMINATE." (Italics added.) His determinate sentence is set forth on a separate abstract entitled "ABSTRACT OF JUDGMENT - PRISON COMMITMENT - DETERMINATE." Because it is clear that the 25 year sentence enhancement imposed pursuant to section 12022.53, subdivisions (d) and (e)(1) is in fact 25 years to life, the abstract need not be amended.
Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471.) We may correct such a clerical error at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)
We shall direct the trial court to: amend the abstracts of judgment to reflect that defendants' liability for victim restitution is joint and several.
The recent amendments to section 4019 do not operate to modify defendants' entitlement to credit, as they were each committed for a serious felony. (§ 4019, subds. (b) and (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The jury's finding that Jones personally inflicted great bodily injury to Andrelia in the commission of counts 1 and 2 is reversed, and the three-year enhancement appended to Jones's sentence on count 1 is stricken. Defendants' sentences on count 1 are stayed pursuant to section 654. In all other respects, the judgments are affirmed. The trial court shall prepare amended abstracts of judgment reflecting those modifications, as well as the following: defendants' liability for victim restitution is joint and several. The trial court shall forward a copy of the same to the Department of Corrections and Rehabilitation.
BLEASE, Acting P. J. We concur:
NICHOLSON, J.
ROBIE, J.