Opinion
B224076
12-16-2011
THE PEOPLE, Plaintiff and Respondent, v. DEONTRA EVANS et al., Defendants and Appellants.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Deontra Evans. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Alajonon Reed. Law Offices of Broady & Lynch and Earl Broady, Jr., for Defendant and Appellant Mark Davis. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA103093)
APPEAL from judgments of the Superior Court of Los Angeles County. Jerry E. Johnson, Judge. Affirmed as modified as to Defendant and Appellant Deontra Evans. Affirmed with directions as to Defendant and Appellant Alajonon Reed. Affirmed as to Defendant and Appellant Mark Davis.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Deontra Evans.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Alajonon Reed.
Law Offices of Broady & Lynch and Earl Broady, Jr., for Defendant and Appellant Mark Davis.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
In this appeal, appellants Deontra Evans, Alajonon Reed, and Mark Davis challenge their murder convictions attacking the sufficiency of the evidence, the instructions given and refused, and the conduct of the prosecutor. We find no prejudicial error and affirm the convictions. However, we reverse the parole revocation fine imposed on Evans and we remand the case to the trial court to amend Reed's abstract of judgment to accurately reflect the sentence imposed.
FACTUAL BACKGROUND
Interpreting the evidence in the light most favorable to the verdict, the evidence showed that Mark Davis, Alajonon Reed, and Deontra Evans (collectively appellants) were all members of the Raymond Avenue sect of the Crip gang (Raymond). Raymond members regularly congregated on Laconia Boulevard. The gang's primary activities included murders and assaults with firearms.
On July 25, 2008, D.B. and his grandmother visited his aunt L.W., who lived on Laconia Boulevard. There was evidence that D.B., L.W., and D.B.'s parents were members of a different sect of the Crip gang - the 87 Gangsters - but D.B. denied such membership, and his mother and aunt denied current membership. Like the Raymond, the 87 Gangsters were part of a violent street gang.
On July 25, D.B. was outside his aunt's apartment with his aunt, grandmother, and cousin, when L.W. argued with Shamena Page, aka Lady Stacks, a member of Raymond. Appellants overheard the argument, walked up to D.B. and L.W. and announced, "This Raymond." Appellants told L.W. to move away and even warned D.B.'s grandmother that "[w]e kill mothers too." Davis insulted D.B.'s cousin, and when D.B. protected her, Davis swung at D.B. D.B. and his grandmother then left the scene without further incident.
Later that night, at about midnight, approximately 15 Raymond and the same number of 87 Gangsters congregated on Laconia Boulevard; standing on opposite sides of the street and announcing their respective gang affiliations. D.B. returned to Laconia, this time with his mother. D.B.'s friends, Daniel Johnson, G.P., and N.L., were among the 87 Gangsters congregated on Laconia and were eager to fight the Raymonds because a Raymond had "jump[ed]" or assaulted D.B.
The evidence showed there were also members of the 97 Gangsters but for purposes of this appeal, we need not distinguish between the 87 Gangsters and the 97 Gangster sects. We refer to all of them as 87 Gangsters.
Davis either had a gun or was handed one by Michelle Wyley, another member of Raymond. Davis approached G.P., put a gun to his neck, and threatened to kill G.P. Davis also threatened N.L. with a gun, ordering N.L. out of the neighborhood. Davis pointed the gun at D.B. Davis repeatedly ordered the 87 Gangsters he threatened to "get outta my hood."
Reed then asked Davis for the gun. Davis gave the gun to Reed, and Reed fired at the 87 Gangsters. After hearing the shots, the assembled group started fleeing. Reed hit Raymond Requena, who was running. Requena died of multiple gunshot wounds. After Requena fell to the ground, appellants fled together towards Vermont Avenue. Evans turned around, shot in the direction of the 87 Gangsters, and told them to get out of his neighborhood. Evans then ran away with Reed and Davis.
Meanwhile, Johnson, G.P. and N.L. had fled in a car shortly after Davis threatened G.P. Appellants shot at the car and hit Johnson, killing him. No eyewitness saw appellants shoot at Johnson, but appellants were seen running in the same direction as the shooting near Vermont Avenue, and bullet fragments from both Johnson and Requena were consistent with a .45-caliber gun.
D.B., G.P., and N.L. refused to identify anyone in court. G.P. testified that the penalty for "snitch[ing]" or testifying against a gang member was an "early grave." No witness testified that he or she saw an 87 Gangster armed with a gun, and no one riding with Johnson was armed, though there was evidence that N.L. armed himself after the July 25 incident. The parties stipulated that Davis previously had been convicted of a felony.
PROCEDURAL BACKGROUND
In an amended information, appellants were charged with the murders of Raymond Requena and Daniel Johnson (Pen. Code, § 187, subd. (a)). Multiple murder and criminal street gang special circumstances were alleged (§ 190.2, subd. (a)(3) & (22)). Davis was charged with two counts of assault with a firearm (G.P. and D.B.) and one count of possession of a firearm by a felon (§§ 245, subd. (a)(2), 12021, subd. (a)(1)). Reed was charged with one count of assault with a firearm (§ 245, subd. (a)(2)). With respect to the two murder counts, it was further alleged that a principal personally discharged a firearm causing death to Requena and Johnson and personally used a firearm (§ 12022.53). With respect to the three assaults, it was alleged Davis and Reed personally used a firearm (§ 12022.5). A gang enhancement was alleged with respect to all counts (§ 186.22), except Davis's possession of weapon by a felon.
All further undesignated statutory references are to the Penal Code.
No witnesses testified for the defense.
The jury convicted appellants of all counts. It found all special circumstances and enhancements true, except that with respect to Davis's assault on D.B., the jury found the gang enhancement and personal use of a firearm not true. Additionally, the jury found Evans committed the second degree murder of Requena, and all other murders were of the first degree.
Evans was sentenced to two consecutive life terms without the possibility of parole. He was sentenced to an additional term of 50 years to life. Davis was sentenced to two consecutive terms of life without the possibility of parole plus two 25-year-to-life terms for the firearm enhancements. Davis was also sentenced to a total of 39 years eight months for the two assaults, the possession and the enhancements linked to those charges. Reed was sentenced to two consecutive terms of life without the possibility of parole for the murders, plus two 25-year-to-life terms for the firearm enhancements. He was also sentenced to a total of 12 years for the assault with a firearm and section 12022.5, subdivision (a) enhancement. This appeal followed.
DISCUSSION
1. Sufficiency of the Evidence
Davis and Evans challenge the sufficiency of the evidence to support their murder convictions and the special circumstance indicating they had the intent to kill. Evans and Davis also challenge the sufficiency of the evidence to support an instruction on murder based on the natural and probable consequences doctrine. As we explain, none of their arguments has merit.
In evaluating the sufficiency of the evidence, we consider the record in the light most favorable to the judgment to determine whether it discloses "evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume "in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (Kraft, at p. 1053.)
A. Davis -- Aiding and Abetting
Davis argues there was insufficient evidence to show he aided and abetted either the murder of Requena or the murder of Johnson. Davis emphasizes that his codefendants shot the gun and claims his only intent was to "survive in the face of attackers who had invaded his neighborhood looking to reek violence on him and his fellow gang member[s]."
Sufficient evidence supports the finding that Davis aided and abetted both murders. Although presence alone is insufficient to show accomplice liability, "it is a circumstance which will tend to support a finding that an accused was a principal." (People v. Laster (1971) 18 Cal.App.3d 381, 388.) Davis's conduct before and after the shootings is also relevant. (People v. Campbell (1994) 25 Cal.App.4th 402, 409 ["'companionship, and conduct before and after the offense'" are relevant to determine whether a defendant aided and abetted a crime].)
Davis started the altercation when he swung at D.B. and threatened to kill D.B.'s grandmother. Davis also ordered L.W. to move out of the neighborhood because it was claimed by Raymond. Then, immediately prior to the shootings, Davis was present with Evans and Reed, pointed the gun at rival gang members while threatening them, and handed the gun to Reed. This evidence supports the reasonable inference that Davis aided and abetted the Requena shooting. Davis's argument that he intended only to scare rival gang members ignores the appropriate standard of review and instead is based on a version of the facts rejected by the jury.
Sufficient evidence also supports the finding that Davis aided and abetted the Johnson killing. After Requena fell to the ground, appellants ran away together in the direction of the vehicle in which Johnson, G.P and N.L. fled. Davis previously had threatened both G.P. and N.L., ordering them out of the neighborhood and placing a gun to G.P.'s neck. A reasonable jury could infer that Johnson was shot with the same gun Davis handed Reed. A reasonable jury also could infer that in shooting Johnson, appellants were following through on Davis's threats to G.P. and N.L., who were seated next to Johnson.
B. Davis -- Intent to Kill
Davis argues the special circumstances must be reversed because the record lacks sufficient evidence that he harbored the intent to kill. Contrary to the argument, substantial evidence supports that finding. Davis threatened to kill G.P. and N.L. and put a gun to G.P.'s neck. That evidence alone supports the finding that he harbored the intent to kill. Additional evidence shows that Davis handed a gun to Reed in the midst of a gang confrontation. The fact that Davis's threats ultimately were carried out by his fellow gang members does not show that Davis lacked the intent to kill.
C. Evans -- Aiding and Abetting
Evans argues that there was insufficient evidence that he aided and abetted the murders of Requena and Johnson. We disagree.
Sufficient evidence supports the finding that he aided and abetted the murder of Requena. Evans fired at the rival gang and told them to get out of his "hood." There was also evidence that immediately after Requena was shot, Evans ran with Davis and Reed down the street. This evidence is sufficient to show that Evans was not only present during the murder of Requena but intended to encourage the killings.
With respect to the Johnson murder, a reasonable jury could infer that one of the appellants shot Johnson and the others aided and abetted the crime. The bullet that killed Johnson was consistent with the bullet that killed Requena. The shot was fired shortly after appellants ran from Laconia Boulevard and shortly after Johnson left the area in a car with G.P. and N.L., the very persons Davis had threatened. Evans shot at the 87 Gangsters supporting the inference that he intended to assist in the killing of 87 Gangsters including Johnson.
D. Evans -- Intent to Kill
Evans argues that the special circumstances for multiple murder and for killing while being an active participant in a street gang must be reversed because he lacked the intent to kill. A reasonable jury could have found that Evans had the intent to kill from Evans's act of shooting directly at the 87 Gangsters.
E. Davis and Evans -- Natural and Probable Consequences
"[U]nder the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' . . . [I]f a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault." (People v. McCoy (2001) 25 Cal.4th 1111, 1117, quoting People v. Prettyman (1996) 14 Cal.4th 248, 260, 267 (Prettyman).)
For a defendant to be convicted under the natural and probable consequences doctrine, "the trier of fact must find that the defendant, 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 a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (Prettyman, supra, 14 Cal.4th at p. 262, fn. omitted.)
Challenging the last factor, Davis and Evans argue that the Requena and Johnson shootings were not natural and probable consequences of the target offenses of brandishing a firearm or assault with a firearm. Evans argues that the evidence showed that the shootings were only possible outcomes of the target offenses.
Our Supreme Court has recently clarified the standard for determining whether one crime is a natural and probable consequence of another. "'[A]lthough variations in phrasing are found in decisions addressing the doctrine—"probable and natural," "natural and reasonable," and "reasonably foreseeable"—the ultimate factual question is one of foreseeability.' [Citation.] Thus, '"[a] natural and probable consequence is a foreseeable consequence" . . . .' [Citation.] But 'to be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . ." [Citation.]' [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury." (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina).)
Here, substantial evidence supported the finding that the murders were natural and probable consequences of the target crime that the appellants aided and abetted. Wyley testified that gang members earn stripes by killing members of another gang. According to Wyley, by killing the 87 Gangsters, the Raymonds taught the gangsters not to come into a neighborhood claimed by Raymond. She testified that "disrespect[ing]" a gang leads to fighting "most of the time." In addition to Wyley, the prosecution's gang expert Detective Kerry Tripp testified that when a gun is introduced in a gang confrontation, "somebody can get shot, somebody can get killed, somebody can be robbed, somebody can be carjacked. [¶] All these are possibilities." Tripp also testified that when a person pulls out a gun it could lead to murder. In the cases Tripp personally investigated, the introduction of a gun led to a shooting, killing, robbery, and carjacking. Tripp testified that a gang member would expect a shooting possibly resulting in death as a result of brandishing a weapon. Tripp further opined that a gang member expects a person to be seriously injured or killed as a result of an assault with a firearm. The foregoing evidence amply supports a finding that murder was "a possible consequence which might reasonably have been contemplated," which our Supreme Court has held is all that is required. (Medina, supra, 46 Cal.4th at p. 920; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 11 [subsequent murder was natural and probable consequence of assault by gang members].)
Evans argues that Medina was wrongly decided. We need not dwell on this argument because we are required to follow our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. Alleged Instructional Error
A. Imperfect Self-defense
Davis argues that the jury should have been instructed on imperfect self-defense with respect to both murders. Reed and Evans argue that an imperfect self-defense instruction should have been given with respect to the Requena murder. We disagree.
The doctrine of imperfect self-defense applies when there is evidence a defendant actually in good faith but unreasonably believed he was in imminent danger of death or great bodily injury. (People v. Breverman (1998) 19 Cal.4th 142, 153-154.) A trial court is required to instruct on imperfect self-defense if substantial evidence supports that theory. (Id. at pp. 148-149.)
Here, no evidence supported the theory that Davis believed he was in imminent danger of death or great bodily injury. The evidence showed that Davis was armed and was threatening the 87 Gangsters. No evidence showed that an 87 Gangster either was armed or similarly threatened Davis. The evidence that the 87 Gangsters entered an area Davis claimed for his gang does not support the inference that Davis believed he was in imminent danger. Although prior to the shooting, Requena had said he wanted to fight, Requena was running away when he was shot, contradicting the inference that Requena placed any appellant in imminent danger. With respect to Johnson's killing, Davis's argument claiming that an imperfect self-defense instruction was required is spurious as Johnson was in a car, driving away from the scene when he was shot. Johnson's effort to flee could not have placed Davis or any other appellant in danger of death or great bodily injury.
Reed argues that his conviction for the first degree murder of Requena must be reversed because the trial court erred in failing to instruct the jury on imperfect self-defense. He claims there was evidence that he actually but unreasonably believed he was in imminent danger of death or great bodily injury. Reed emphasizes evidence that rival gang members challenged his gang to a fight. He argues that case law shows that a gang challenge is a dangerous situation that may lead to assaults and murders, and when viewed objectively may show violence is foreseeable. Reed, however, identifies no evidence indicating that he personally believed he was in danger of great bodily injury or death. His subjective view is the relevant question for purposes of the imperfect self-defense instruction. (People v. Oropeza (2007) 151 Cal.App.4th 73, 82 [to require imperfect self-defense instruction "'there must be evidence from which the jury could find that appellant actually had such a belief'"].) For the same reason, gang expert testimony that such challenges may escalate into violence does not show Reed's state of mind and does not support the claim that Reed believed in good faith that he was in imminent danger. No witness testified that Reed was fearful. As to Reed, the imperfect self-defense instruction was properly denied.
Finally, Evans argues that his liability was derivative of Reed's state of mind. Assuming Evans can rely on Reed's state of mind, as we have explained there was no evidence Reed believed he was in imminent danger.
B. Murder Instruction
Reed argues that CALCRIM No. 521 erroneously instructed the jury that a defendant may be found guilty of first degree murder as long as all of the jurors agree that the People have proven the defendant committed murder. Reed argues the instruction should have instead informed the jury that it had to agree the defendant committed first degree murder.
Following CALCRIM No. 521, the jury was instructed: "If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant has been prosecuted for first degree murder (1) under the theory that 'the murder was willful, deliberate, and premeditated.' [¶] You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
When the entire instruction is considered, the jury could not have convicted Reed of first degree murder unless it found that the People proved beyond a reasonable doubt the murder was willful, deliberate, and premeditated. The last sentence states the People have the burden of proving beyond a reasonable doubt that the killing was first degree. It follows that if jurors had a reasonable doubt Reed committed first degree murder it would have had to convict him of second degree murder. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.)
C. Nontarget Offense
Appellants argue the trial court erred in failing to instruct the jury that they could be found guilty of second degree murder under the natural and probable consequences doctrine even if the shooter were guilty of first degree murder. They argue that the court erred in failing to instruct the jury that it had to determine whether the nontarget crime was first degree or second degree murder. Appellants rely on People v. Hart (2009) 176 Cal.App.4th 662 (Hart), in which the appellate court reversed a conviction for attempted premeditated murder because it found the instructions insufficient to inform the jury that to convict the defendant of attempted premeditated murder under the natural and probable consequences doctrine it would have to find that attempted premeditated murder was a natural and probable consequence of the target offense. (Id. at p. 665.) The key issue in Hart was whether the jury understood it could determine that attempted murder as opposed to attempted premeditated murder was a natural and probable consequence of the target crime. (Id. at p. 670.) Under the facts of Hart, a reasonable jury could have concluded that although the perpetrator premeditated the attempted murder, such premeditation was not a natural and probable consequence of the target offense. (Id. at p. 672.)
In contrast to Hart, in People v. Cummins (2005) 127 Cal.App.4th 667, 681, the court affirmed an attempted murder conviction when the jury was "properly instructed on the elements of attempted premeditated murder" notwithstanding the defendants argument that the court "failed to inform the jury it had to find that a premeditated attempted murder had to be a natural and probable consequence of the" target offenses. (Cummins, at p. 680.) Following Cummins, People v. Curry (2007) 158 Cal.App.4th 766 reasoned that an aider and abettor may be convicted of premeditated attempted murder under the natural and probable consequences doctrine even if "he or she did not personally act with willfulness, deliberation and premeditation." (Curry, at p. 791.) The Supreme Court has granted review of this issue. (People v. Favor, review granted March 16, 2011, S189317.)
No appellant explains how jurors in the present case could find that premeditated murder was not a natural and probable consequence of the target offenses in this case. Evans argues that "a properly instructed jury could reasonably conclude that although a codefendant intentionally and deliberately shot [Johnson,] the victim in count two, appellant's personal mens rea made him guilty of a lesser crime [second degree murder]." Evans's argument, however, is irrelevant because the natural and probable consequences doctrine is not based "'on the defendant's subjective state of mind, but [on] whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted . . . . [Citations.]' [Citation.]" (Hart, supra, 176 Cal.App.4th at p. 668.) Similarly, Davis argues that the jury "never properly considered whether, individually [he] premeditated the crime, or crimes." Davis's mens rea is also irrelevant to the natural and probable consequences doctrine.
Reed argues that a reasonable juror could have determined that a premeditated murder was not a foreseeable consequence of the initial assault because it was a chaotic situation and the identity of the shooter was unknown. Given that the jurors found each appellant harbored an intent to kill when it found true the special circumstances, the fact that the scene was chaotic and that any appellant could have fired the shot that killed Johnson does not show prejudice even under the strict beyond a reasonable doubt standard in Chapman v. California (1967) 386 U.S. 18, 23-24. Confusion over which appellant shot Johnson is not probative of whether a reasonable person in Reed's position would have known that the commission of a premeditated murder was a natural and probable consequence of the commission of the target offenses. This case is distinguishable from Hart because the jurors could not have found on the facts presented at trial that second degree murder, and not first degree murder, was a natural and probable consequence of the target offenses. (See Hart, supra, 176 Cal.App.4th at p. 672.) Thus, even assuming the court should have clarified the degree of murder for the nontarget offenses, appellants demonstrate no prejudice (under any standard) from the alleged error.
D. Identifying Target Offense
Evans argues that the instruction on natural and probable consequence failed to instruct the jury "that the murder must be a natural and probable consequence of the crime appellant aided and abetted." Evans claims that jurors could have found that murder was a natural and probable consequence of assault with a firearm and concluded that he aided only in the crime of brandishing a weapon. Evans focuses on the following jury instruction, which tracked CALCRIM No. 403: "The defendant is guilty of Murder if you decide that the defendant aided and abetted one of these crimes and that Murder was the natural and probable result of one of these crimes. However, you do not need to agree about which of these two crimes the defendant aided and abetted." (Italics added.)
As Evans points out, the italicized language could have more precisely stated "the crime aided and abetted." However, when the entire set of jury instructions are considered, the jury could not have interpreted the portion emphasized by Evans in the manner he suggests. The instruction on murder, CALCRIM No. 402, based on assault with a firearm required jurors to find "the People have proved that the defendant aided and abetted in Assault with a Firearm and that Murder was the natural and probable consequence of Assault with a Firearm." Thus, the target offense was linked to the crime aided and abetted. When the instructions are considered in their entirety as required, Evans demonstrates no error. (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074 [instructions must be considered in their entirety].)
3. Prosecutorial Misconduct
Appellants raise several claims of prosecutorial misconduct. "'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill), overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; see also People v. Carter (2005) 36 Cal.4th 1215, 1263.) When prosecutorial misconduct is shown, a judgment will be reversed only if there is a miscarriage of justice. (Hill, at p. 844.)
"'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.]" (Hill, supra, 17 Cal.4th at p. 820.) However, there are "exceptions to the forfeiture rule in cases of pervasive prejudicial prosecutorial misconduct . . . ." (People v. Dykes (2009) 46 Cal.4th 731, 775, fn. 8.)
A. Leading Questions
Appellants argue that the prosecutor improperly asked leading questions, and the violation was so egregious that it rose to the level of prosecutorial misconduct. Appellants raised this claim of error in the trial court and sought a mistrial. The trial court denied the motion for a mistrial but agreed with appellants' counsel that the prosecutor improperly asked numerous leading questions during her direct examination of witnesses, and the record supports the trial court's finding. (People v. Williams (1997) 16 Cal.4th 635, 672 [leading questions generally may not be asked on direct or redirect examination of a witness].) Even if we assume that such conduct constituted prosecutorial misconduct, appellants fail to show prejudice under any standard. Appellants identify no evidence that was improperly admitted as a result of the prosecutor's leading questions. Nor do they show that the prosecutor used leading questions as a guise to elicit inadmissible evidence. Although the form of several questions was improper, appellants demonstrate no resulting harm.
B. Closing Argument
Appellants argue the prosecutor committed numerous additional incidents of misconduct during her closing argument. Although appellants objected to some of these, they did not object on the ground of prosecutorial misconduct and did not request a curative instruction. The appellate arguments on the ground of prosecutorial misconduct are therefore forfeited. As we explain, even if we consider the arguments on the merits, appellants fail to show reversal is required.
Evans argues that the trial court's comments reflected that additional objections would have been futile. The record does not support this assertion. The trial court sustained many of defense counsels' objections and warned the prosecutor about asking leading questions in response to defense counsels' argument.
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Appellants argue the prosecutor committed misconduct by impugning the integrity of defense counsel by asserting defense counsel would lose their bar cards if they argued in favor of voluntary manslaughter. The prosecutor's argument was improper, and the trial court sustained an objection. (See People v. Thompson (1988) 45 Cal.3d 86, 112 [improper for the prosecutor to portray defense counsel as the villain in a case or to argue defense counsel does not believe his or her client's defense]; People v. Reyes (1974) 12 Cal.3d 486, 506 [name calling of defense counsel should be avoided].) After the court sustained the objection, the prosecutor did not repeat the accusation. Appellants demonstrate no prejudice from the prosecutor's brief statement in the midst of her lengthy argument, and we find none. The gist of her argument -- that the evidence of voluntary manslaughter was weak -- was a fair comment.
Appellants argue that the prosecutor committed misconduct by arguing defense counsel would do anything to win including lie and win on a technicality. The contention is based on the prosecutor's statement that one defense counsel argued: "If I can get my guy off on a technicality, so be it." Following an objection that the argument misquoted defense counsel, the court instructed the jury that the prosecutor's argument did not constitute evidence. The passing remark could not have had any effect on the jury's verdict.
Appellants also argue that the prosecutor improperly suggested they were required to present a unified defense. The prosecutor's argument that appellants had inconsistent defenses and that the jury should reject unreasonable arguments was a proper rebuttal to defense counsel's argument. The prosecutor could legitimately point out how inconsistencies undermined the defense case. Identifying inconsistencies is not equivalent to arguing that defense counsel had a duty to create a doubt as found to constitute misconduct in People v. Coulter (1989) 209 Cal.App.3d 506, 514.
In addition to the foregoing claims, Evans argues that the prosecutor improperly argued that Evans took credit for the shooting of Requena and that as he shot at the 87 Gangsters he was trying to kill them. The prosecutor's argument that Evans took credit for the shooting of Requena was improper because it was not based on any evidence presented at trial. Although a prosecutor may comment on items that are common knowledge or illustrations from common experiences (People v. Alvarado (2006) 141 Cal.App.4th 1577), argument that Evans claimed responsibility on the street fell into neither category. Evans demonstrated no prejudice from the prosecutor's argument and the jury was instructed the prosecutor's argument was not evidence. The argument that Evans intended to kill the 87 Gangsters was an appropriate comment based on the evidence. As previously explained, the inference that Evans intended to kill the 87 Gangsters was readily available from the evidence. (People v. Wharton (1991) 53 Cal.3d 522, 567 [prosecutor argument may include inferences from the evidence].)
4. Remaining Arguments
A. Evans -- Parole Revocation Fine
Evans argues that because he was sentenced only to indeterminate terms, it was error to sentence him to a parole revocation fine. Respondent agrees. Because Evans was not sentenced to a determinate term, a parole revocation fine should not have been imposed. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1182.)
B. Reed -- Abstract of Judgment
The parties agree that Reed's abstract of judgment should be modified to reflect that his liability for direct victim restitution is joint and severable with that of his codefendants. The reporter's transcript indicates the court ordered the obligation to be joint and severable and the abstract of judgment therefore should be corrected. (See People v. Mesa (1975) 14 Cal.3d 466, 471 [oral pronouncements of court generally presumed correct].)
The parties also agree that Reed's abstract of judgment should be amended to delete a sentence of life without parole in count 3 as Reed was not convicted of any crime in count 3 (which charged only Wyley).
C. Joinder
Each appellant sought to join in arguments of the others that would inure to his benefit. As a result, we discussed several of the claims including prosecutorial misconduct as if raised by all appellants. We find no meritorious argument that would benefit an appellant who did not expressly raise it and therefore need not further consider joinder.
D. Cumulative Error
We find no cumulative error warranting reversal.
DISPOSITION
The parole revocation fine imposed on Evans is reversed. The case is remanded to the trial court to correct Reed's and Evans's abstracts of judgment. The trial court shall forward a copy of Evans's and Reed's amended abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
FLIER, J. WE CONCUR:
BIGELOW, P. J.
RUBIN, J.