Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD178797 Peter C. Deddeh, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Demetrius Gater appeals from a judgment of conviction and sentence. A jury convicted Gater of murder, two counts of attempted murder, assault with a firearm, and carrying a loaded firearm, based on four separate incidents. The trial court sentenced Gater to 75 years to life plus an additional 20 years.
On appeal, Gater contends (1) that the trial court abused its discretion in denying his motion to sever the murder charge from the other charges, and/or that the joinder of the murder charge with the other charges denied him his right to a fair trial; (2) that his right to a fair trial was violated when the trial court admitted in evidence statements Gater and a fellow Skyline gang member made during wiretapped telephone conversations; (3) that the trial court improperly admitted statements Gater's brother made during a "free talk" interview with law enforcement officers; (4) that the trial court erred in admitting a photograph of the murder victim's body at the scene of the crime; (5) that the trial court erred in admitting in evidence a portion of witness Allan Reddick's police interview in which Reddick said a prayer; (6) that the trial court erred in admitting evidence that Reddick's house had been fire-bombed, as evidence tending to explain why Reddick recanted prior statements in which he had implicated Gater; (7) that the cumulative effect of the errors requires reversal; and (8) that the trial court violated Penal Code section 654 in imposing both a four-year firearm enhancement and a ten-year gang enhancement related to Gater's conviction for assault with a semi-automatic firearm. We conclude that the majority of Gater's assertions of error are without merit. With regard to Gater's challenge to the admission of the statements Gater's brother made during his interview with police and Reddick's prayer at the end of his interview, even if we were to presume that the trial court should not have admitted in evidence either of these statements, we would conclude that the admission of the statements does not constitute reversible error. We therefore reject Gater's assertion of cumulative error.
With regard to the issue of the application of section 654 to the firearm and gang enhancements, we conclude that the trial court did not err in imposing both the firearm enhancement and the 10-year gang enhancement related to the charge of assault with a firearm, without staying the gang enhancement. Consequently, we affirm the judgment and sentence of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's case
The charges against Gater arose from four different incidents, three of which involved Gater shooting at rival gang members. In one of those incidents, Gater's victim died. In another, the victim was injured in the groin area, and in the third, the victim escaped without injury. While the final incident did not involve Gater shooting at anyone, police found a loaded semi-automatic firearm in Gater's possession. The prosecution alleged that Gater was a member of a criminal street gang and that he committed the charged crimes for the benefit of his gang.
a. Gang evidence
San Diego Police Detective Andrew Spear testified as a gang expert regarding Gater's affiliation with the Skyline-Piru (Skyline) gang. Detective Spear's primary area of expertise relates to the Skyline and O'Farrell Park (O'Farrell) street gangs. According to Spear, the Skyline and O'Farrell gangs are allies. Their mutual enemies include the Emerald Hills Blood Gang, the Lincoln Park Bloods, and the 59 Brims. Spear testified that the relationship between Skyline and O'Farrell is extremely close, and that disrespect shown toward one gang would be considered disrespect to the other. Spear identified Gater as a member of Skyline. According to Spear, Gater's moniker is "D." Gater and his brother, Marcus, are also called the "Gater Boys." Spear identified a photograph he confiscated during a probation search of another individual as depicting Gater, his brother, and other documented Skyline and O'Farrell members "throwing up" gang signs, meaning that they were displaying hand signs that represent gang affiliations.
Spear explained the meaning of a number of statements Gater made in a letter he wrote from jail to a girl who was apparently a Skyline affiliate. Spear understood Gater to be asking the girl to keep other Skyline members motivated to continue committing crimes so that rival gangs would know that "Skyline's out there, they're a factor, they're out there, they're putting in work . . . they're actively trying to shoot other gang members and kill them."
b. The Alexander murder
Eager Alexander was shot in the back of the head late on November 15, 2002, or early the following morning, on a sidewalk on C Street in downtown San Diego. An ambulance arrived at the scene and transported Alexander to the hospital, where he later died.
In the early morning of November 16, 2002, San Diego Police Detective Bruce Pendleton found two .45-caliber shell casings just southeast of the area where Alexander was found. Pendleton also noticed a bullet hole in a small window of a nearby hotel. He found a .45-caliber bullet inside the hotel, in a rug that was rolled up. Later testing established that the bullet and casings had been fired from the same gun.
Deputy medical examiner Christopher Swalwell conducted an autopsy on Alexander's body on November 17, 2002. Swalwell determined that a gunshot wound to the head caused Alexander's death. The bullet entered above Alexander's left ear and exited through his right eyebrow. Alexander did not die immediately upon being shot, but was declared brain dead several hours after the shooting. Alexander had a few superficial scrapes around his right eye and on the right side of his face. He also had scrapes on the back of his left hand and knee.
Denton Capell, a member of Skyline at the time of Alexander's death, was present at the scene. After Alexander was killed, Capell entered into an agreement with the district attorney's office pursuant to which Capell would receive relocation expenses in exchange for his truthful testimony. Capell testified that members of the Skyline and O'Farrell gangs were present at the scene of the Alexander shooting. Capell said that he did not remember Gater being there. Capell heard two shots that night, and witnessed Alexander fall to the ground, but did not see who shot Alexander. After Alexander was shot, everyone left the scene. Capell acknowledged that he was reluctant to testify as to everything he knew about the Alexander shooting because he feared for his family's safety.
The jury also heard an interview that Detective Pendleton conducted with Capell in February 2005. Capell was in custody at that time for giving false information to a police officer. During the interview, Capell told Pendleton that he saw Gater fire a gun at Alexander twice as Alexander tried to run away from the group of Skyline and O'Farrell members. After the shooting, Capell asked Gater why he had shot Alexander, and Gater replied that he did not know.
Allan Reddick, a friend of Gater's and a Skyline member, was also present at the scene of the Alexander murder. At the time of Gater's trial, Reddick was on probation for having falsely identified himself to a peace officer. Reddick admitted that he did not want to testify against Gater. Reddick claimed that he could not remember many details of the Alexander shooting, including whether Gater had been present at the scene that night. When faced with prior statements he had made to the effect that Gater and his brother Marcus had been present that night, Reddick acknowledged having said that, but ultimately stated that he did not in fact know whether Gater had been there, after all. Although Reddick did not acknowledge that he was afraid to testify, he did admit that he had previously cooperated with police in another matter, and that his house had been burned down afterward.
The jury heard a recording of an interview between Detective Pendleton and Reddick that occurred in October 2003. During that interview, Reddick said that a member of O'Farrell had instigated a fight on the night of the Alexander shooting, and that a group of people had "jumped" Alexander. When Alexander tried to run away from the group, he was shot. Reddick initially told Pendleton that an individual named "Ricky" was the person who instigated the fight and shot Alexander. Reddick subsequently told Pendleton that he had not seen the shooter. When Pendleton told Reddick that he had heard that one of the "Gater boys" was the shooter, Reddick acknowledged that he had heard this, too, and claimed, at first, that he had heard that Marcus Gater was the shooter. After Pendleton told Reddick that he had heard that Demetrius Gater was the shooter, Reddick admitted that he, too, had heard this. When Pendleton asked Reddick whether he had witnessed either of the Gater brothers involved in the fight, Reddick responded, "[M]an I don't want to put my life in danger." Reddick then stated that Demetrius was the shooter, but later qualified his statement, claiming that he knew that the shooter was one of the Gater brothers, but that he did not know which one. Reddick knew that the shooter had been wearing a black hoodie, and that Demetrius had been wearing a black hoodie on the night Alexander was shot, while Marcus had been wearing a gray hoodie.
Gater's brother, William Trice, testified that Gater admitted months after the shooting that he was the one who had shot Alexander. Trice said that he was not present at the scene when the shooting occurred, but that Gater had described to him what had happened. According to Trice, Gater explained that Alexander was "trying to be a bad ass" and was "[t]rying to start shit." Alexander had been "[t]hrowing up gang signs," so Gater and "his homeys" beat up Alexander. Alexander apparently ran off, but then returned. Trice said he guessed that Alexander "wanted more problems." As Alexander tried to run off again, Gater chased him down and shot at him twice. Gater told Trice that he shot Alexander in the back and in the head.
Another Skyline member, Jimmie Lee Hunter, testified that Gater told him about Alexander's murder while they were incarcerated together. Gator explained to Hunter that he and some other Skyline and O'Farrell members had gone downtown on the night of the murder and had run into Emerald Hills members, including Alexander. When Alexander approached them, they "jumped" him. Alexander then ran away. As Alexander was running, Gater shot him twice in the head with a .45-caliber gun.
Detective Spear testified that in his opinion, a hypothetical crime based on the facts of Alexander's murder would have been committed for the benefit of a criminal street gang. According to Spear, because the victim was a member of a rival gang, his death would benefit the shooter's gang by demonstrating that the gang's members are willing to perpetuate violence on their rivals. The murder would also bolster a gang's reputation by causing rival gang members and community members to be in fear, which would mean in turn that people would be less willing to call the police to report crimes and/or testify against a gang member in court.
c. The Roberson attempted murder
Fredrick Roberson was shot by a suspected Skyline or O'Farrell member on the night of April 18, 2003, in Emerald Hills. Roberson suffered a gunshot wound to the groin area. The bullet damaged his femoral vein and artery. He was hospitalized for five days and underwent surgery.
San Diego Police Officer John Cochran responded to the scene of the Roberson shooting. Cochran collected four nine-millimeter shell casings from ammunition for a semi-automatic firearm in the street near where Roberson was shot.
At trial, Roberson could not recall much of what happened on the night he was shot, or what he had told officers after the shooting. He remembered that he had tried to pull a gun out of his pocket, but that he was hit by a bullet before he could get a shot off. Roberson knew Gater from school. Roberson testified that Gater was not the person who shot him and said that he had not seen Gater on the night of the shooting.
Detective Jeff Johnson interviewed Roberson on April 19, 2003 at Mercy Hospital. Roberson told Johnson that just before he was shot, he had been walking home when three cars drove by him and caught his attention. As the cars passed, he heard someone yell, "Fuck Emerald Hills." Roberson started to run and heard a gunshot. The shot hit Roberson. Roberson did not identify the shooter.
Detective Patrick Murphy interviewed Roberson in October 2003. Roberson told Murphy that a line of cars had driven past him on the night he was shot. Someone in one of the cars said, "Fuck Emerald Hills," and someone in another car threw a Skyline gang sign. Roberson said that the shooter was a dark skinned Black male who was riding in a Camaro. Roberson was shown a photographic lineup, which included a picture of Gater. Roberson did not identify any of the individuals in the lineup as having been involved in the shooting.
Detective Murphy interviewed Capell, who told Murphy that he was present when Roberson was shot. Capell said that he had been driving one vehicle in a convoy of about six vehicles. Gater and Reginald Moore were in a blue Camaro. Capell also said that he saw Gater shoot four or five rounds from a .38-caliber revolver. At trial, Capell denied that he was present when Roberson was shot. He also denied having made the statements that Murphy attributed to him.
Trice testified that Gater told him about Gater's involvement in the Roberson shooting. Gater told Trice that he fired between two and four shots, and that he hit Roberson in the stomach.
Detective Spear opined, based on a hypothetical scenario, that a crime like the Roberson shooting would have been committed for the benefit of a criminal street gang, for the same reasons he cited with regard to the Alexander shooting.
d. The Hardy Smith shooting
On September 8, 2003, Hardy Smith, a 59 Brims gang member, was standing outside his home in Paradise Hills when a tan car drove up to the house and stopped. One of the passengers in the car got out and fired two shots toward the house. One shot hit a car and another hit a wall of the house. Smith was not injured.
Eduardo Arreguin testified that he was the person who was driving the car that day, and that Gater was the shooter. According to Arreguin, he was with Gater at Morse High School on the day of the shooting. Arreguin agreed to give Gater and two other individuals a ride in his car. Arreguin drove the group to Moonlight Liquor store. Everyone except Arreguin got out of the car and went into the store. Upon returning to Arreguin's car, Gater got in the front passenger seat and told Arreguin to follow another car that had also been parked at the liquor store.
As Arreguin drove through the neighborhood, Gater pointed to someone and called him "Hardy." As Arreguin and his passengers drove by Hardy Smith's house, someone in front of the house yelled, "Fuck Skyline." Arreguin stopped the car and Gater got out. Arreguin thought that Smith had a gun in his pants, but he never saw Smith display a gun. Arreguin heard arguing and then heard two or three shots. He thought that the gunshots had come from behind him, going toward Smith's house. Gater ran back to the car. Arreguin did not see a gun in Gater's possession.
Ernest Alexander was called to testify at Gater's trial. Ernest said that he did not know anything about the September 8 shooting. Ernest's mother, Vaneisha Haggerty, also said that she knew nothing about the shooting. However, Detective Brian Pendleton had interviewed Haggerty on the day of the shooting. At that time, Haggerty told Pendleton that her son, Ernest, had said that he and a friend had been driving home on the day of the shooting when they noticed that they were being followed by another car. When they arrived home and got out of the car, they noticed that the other car had stopped. Ernest saw the front passenger get out of the car. He told his mother that the "Gater boys" were responsible for the shooting. Haggerty did not allow Pendleton to speak with her son.
On the afternoon of September 8, 2003, 14-year-old Anthony Gonzalez and a friend were in Gonzalez's garage. Gonzalez lived on the same street as Smith. The two boys saw a beige Nissan Maxima pull up and stop in front of Smith's house while Smith was outside washing his car. Gonzalez watched as someone got out of the front passenger seat and said something to Smith. The man lifted his shirt, and Gonzalez could see that he had a gun tucked into his pants. The man walked back to the car, leaned into the car, then turned around and fired two shots toward Smith's house. He then got into the car and the car drove away. Gonzalez could not identify the shooter, but described him as an African-American male, in his 20's.
Smith testified that he remembered washing his car in front of his home on September 8, 2003, but said he remembered nothing about a shooting on that date. Smith had previously told Detective Johnson that he had been washing his car in his driveway when a car pulled up in front of the house. A passenger got out of the car and said, "[W]hat's up." Smith understood this to be a challenge to fight. The passenger then pulled a nine-millimeter handgun from the car. Smith ran back toward his house and heard two gunshots. Smith showed Johnson the bullet holes in his car and house. However, Smith refused to identify anyone who participated in the shooting. Smith told Detective Johnson that he did not want to be a "snitch," and said he was worried about what would happen to his mother if something were to happen to him.
Officer Scott Christie responded to the Smith residence on the day of the shooting. Christie recovered two nine-millimeter shell casings near Smith's car, and noticed a bullet hole in the driver's door of Smith's car and another bullet hole in a wall of Smith's house.
Trice testified at trial that Gater admitted that he had been in a car that was chasing another car away from the Moonlight liquor store. As they approached Smith's house, he saw a group of men from another gang. Gater "called them out," but apparently none of them wanted to fight. Gater told Trice that he acted as if he was going to get back into the car, but instead turned around and started shooting at the men.
Hunter also testified that Gater told Hunter that he participated in the shooting at Smith's house. Gater told Hunter that he and three others drove to Smith's house. Smith was with two other members of the 59 Brims. Gater wanted to fight Smith, but Smith refused. Gater told Hunter that he shot a nine-millimeter gun into the air to scare the men. According to Gater, he wasn't aiming at anyone in the group.
Gang expert Detective Spear was presented with a hypothetical example based on the facts of the Smith shooting. Spear opined that such a shooting would have been committed for the benefit of a criminal street gang.
e. Gater's possession of a weapon
On September 27, 2003, LaQuisha Rodgers and her boyfriend, Lorenzo Peay, were sitting in Peay's car talking to Gater in front of Gater's house on Manzana Drive in San Diego. Gater noticed a police vehicle coming toward them. He leaned toward Peay's car and attempted to throw a gun that he had been carrying in his waistband into the car. As the police officers grabbed Gater and pulled his hands behind his back, the gun fell into Peay's car through the open window.
Officer Frank Wilson arrested Gater. Wilson found a nine-millimeter semi-automatic handgun on the floor of Peay's car near Rodgers's feet. The handgun was loaded with one round in the magazine.
2. The defense
Megan Brown testified that Gater was at a football game with her on the night Alexander was killed. She said that he showed up at her house sometime after 9:30 that evening, and that he was still there when she fell asleep at around 11:30. She testified that Gater was at her house two to three hours after 11:30 p.m. Brown also saw Gater on the day after the shooting and said that Gater was not behaving any differently from the way he usually did. Brown's friend Brittany White testified to similar events. However, White stated that she did not know whether Gater had spent the night at Brown's house.
Tracey Wheeler, one of Trice's ex-girlfriends, testified that Trice lied and abused drugs, and said that he would do or say anything to stay out of jail.
Gater's mother, Pamela Gater, testified that Trice (who is also her son) had a reputation for being untruthful and for using drugs. Pamela Gater testified that Trice told her that he had lied to police officers about Gater's involvement in the crimes because he was facing 15 years in prison and did not want to go to prison.
Gater's counsel questioned San Diego Police Detective D'Ann Carter about an incident in which she responded to Skyline Park on May 16, 2003. During that incident, Carter contacted a group of men, including Thomas Lindsay. Another detective found a nine-millimeter semi-automatic gun in a garbage can near where Lindsay was standing. The San Diego Police Department firearms unit tested the gun and determined that the four casings found at the scene of the Roberson shooting had been fired from that gun.
B. Procedural background
Gater was originally charged with five offenses in two separate cases. On March 3, 2006, the San Diego County District Attorney filed a document entitled "Consolidated Amended Information and Indictment." The consolidated charging document charged Gater with one count of murder (§ 187, subd. (a) (count 1)); two counts of attempted murder (§§ 664, 187, subd. (a) (counts 2 and 3)); one count of assault with a semi-automatic firearm (§ 245, subd. (b) (count 4)); and one count of carrying a loaded firearm (§ 12031, subd. (a)(1) (count 5)).
On August 11, 2006, a jury convicted Gater on all five counts. Specifically, the jury found Gater guilty of first degree murder with regard to Alexander's death. The jury also found that in the commission of the murder, Gater personally used a handgun (§ 12022.53, subd. (b)), personally discharged a handgun (§ 12022.53, subd. (c)), and personally discharged a handgun proximately causing the death of another (§ 12022.53, subd. (d)). The jury also found true the allegation that Gater committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
The jury convicted Gater of premeditated attempted murder as to Roberson (§§ 664/187, 189). With regard to that offense, the jury found that Gater personally used a handgun (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and personally discharged a handgun (§ 12022.53, subd. (c)). The jury determined that Gater was a principal in the offense, and that at least one principal used a firearm (§ 12022.53, subds. (b), (e)(1)), at least one principal discharged a firearm (§ 12022.53, subds. (c), (e)(1)), and at least one principal used a firearm proximately causing great bodily injury to another (§ 12022.53, subds. (d), (e)(1)). The jury also found true the gang enhancement allegation (§ 186.22, subd. (b)(1)).
The jury also found Gater guilty of the attempted voluntary manslaughter of Smith, a lesser included offense of the attempted murder charge (§§ 664/192, subd. (a)). With regard to this count, the jury found that Gater personally used a firearm (§ 12022.5, subd. (a)) and that he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury also convicted Gater of assaulting Smith with a semi-automatic firearm (§ 245, subd. (b)), and found true the allegations that Gater personally used a handgun (§ 12022.5, subd. (a)) and that he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
With regard to count 5, the jury found Gater guilty of carrying a loaded firearm (§ 12031, subd. (a)(1)). The jury also found that Gater was an active participant in a criminal street gang at the time he committed the offense (§ 12031, subd. (a)(2)(C)).
On April 16, 2007, the trial court sentenced Gater to an indeterminate term of 75 years to life, plus a determinate term of 20 years. The sentence consisted of (1) 25 years to life on count 1, plus an additional, consecutive sentence of 25 years to life for the enhancement for intentional and personal discharge of a firearm proximately causing death; (2) life with the possibility of parole, to run consecutively to the sentence on count 1 (count 2), plus an additional consecutive sentence of 25 years to life for the enhancement for personal discharge of a firearm by a principal causing great bodily injury; (3) the midterm of six years, stayed pursuant to section 654 (count 3); (4) the midterm of six years, consecutive (count 4), plus an additional consecutive sentence of 10 years for the gang enhancement and a consecutive sentence of four years for the enhancement for personal use of a handgun; and (5) the midterm of two years, concurrent (count 5).
Gater filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court did not err in denying Gater's motion to sever the murder charge from the remaining charges
1. Additional background
The prosecutor moved to consolidate the Alexander murder case with the cases involving the charges of attempted murder, assault with a firearm, and possession of a loaded firearm. Gater opposed the motion. The trial court granted the prosecutor's motion and consolidated the cases. The court found that joinder of the offenses "would not be unduly inflammatory."
Gater subsequently moved to sever the murder charge from the remaining charges. Defense counsel argued that because the other two shootings occurred after the Alexander shooting, evidence of the other shootings could not establish Gater's motive or intent at the time Alexander was killed. Defense counsel also argued that the issues of motive and intent were not going to be at issue at trial, and that only the identity of the shooter was in dispute. He further contended that the evidence was not cross-admissible on the issue of identity because the crimes were not sufficiently similar to prove the identity of the perpetrator.
The prosecutor asserted that evidence pertaining to the murder charge would have been admissible in separate trials on the other charges because the offenses were similar enough to support a rational inference as to motive and intent.
The trial court denied Gater's motion to sever the murder charge from the other charges. The court concluded, however, that Gater was entitled to a limiting instruction regarding the cross-admissibility of the evidence as to each of the charges.
Before the presentation of evidence, the trial court gave the jury the following limiting instruction:
"Four separate and distinct incidents will be presented to you during the course of this trial. It is up to you to consider the evidence on each of the four incidents separately and to decide the charges related to each incident separately.
[¶] . . . [¶]
"You may consider the evidence from one incident in relation to another incident for the limited purpose of determining whether the defendant, Demetrius Gater, had a motive [or] the required intent to commit each charged crime.
"A finding of guilty or not guilty on one count does not automatically mean that you find the same way on the other counts. Judge each count separately.
"You may not conclude that because more than one incident has been charged that the defendant has a bad character or is disposed to commit crime."
The court instructed the jury in a similar manner at the close of evidence.
2. Analysis
a. The law governing joinder of criminal charges
Section 954 permits the joinder of different offenses under certain circumstances: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."
In a situation in which the statutory requirements for joinder are satisfied, a defendant seeking severance must make a clear showing in the trial court of the potential prejudice that could result from joining the charges. (People v. Bradford (1997) 15 Cal.4th 1229, 1314-1315 (Bradford).) This court reviews a trial court's ruling on a motion to sever for an abuse of discretion. (Id. at p. 1315.)
"'"The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]' [Citations.]" (Bradford, supra, 15 Cal.4th at p. 1315.)
These criteria "are not equally significant." (Bradford, supra, 15 Cal.4th at p. 1315.) "'[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others.'" (Bradford, supra, 15 Cal.4th at pp. 1315–1316.) If evidence on each of the joined charges would have been admissible in separate trials on the charges, any likelihood of prejudice in the denial of a motion to sever is dispelled. (People v. Maury (2003) 30 Cal.4th 342, 393.)
b. Trial court did not abuse its discretion in permitting the charges to be tried together
(i) Evidence of the offenses was cross-admissible
"Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or a poor character. '[B]ut evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. . . .' [Citation.]" (People v. Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart).)
"To be relevant to prove identity, the uncharged crime must be highly similar to the charged offenses, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent. [Citations.]" (Lenart, supra, 32 Cal.4th at p. 1123.) "'[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . ' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) In addition, evidence of an uncharged crime is admissible only if it has "substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence. [Citations.]" (Lenart, supra, 32 Cal.4th at p. 1123.)
"'On appeal, the trial court's determination of th[e] issue [of the admissibility of other uncharged crimes], being essentially a determination of relevance, is reviewed for abuse of discretion.' [Citation.]" (Lenart, supra, 32 Cal.4th at p. 1123.)
Gater does not dispute that the crimes meet the statutory requirements for joinder. He also does not specifically challenge whether the crimes were sufficiently similar to be cross-admissible on the issue of intent. Rather, Gater asserts that evidence of the charged crimes was not cross-admissible because "motive and intent were not disputed issues." He contends that the prosecution presented "ample evidence that the various crimes alleged against appellant were all gang-related," and "[t]hus the issue of motive was well-established and not disputed by the defense." Gater further asserts that "[t]he issue of intent to kill was also not contested in the Alexander murder case."
Although Gater's primary defense at trial was that he was not the person who shot Alexander, this fact did not take the issue of intent out of contention. The prosecution still had to prove that Gater intended to kill Alexander. Further, the fact that the prosecution presented other evidence that the crimes were gang related does not mean that the trial court abused its discretion in determining that evidence of the various crimes was cross-admissible for purposes of proving Gater's intent to commit any one of those crimes.
(ii) There was no prejudicial "spillover" effect
We reject Gater's contention that the trial court's refusal to sever the charges created an unfairly prejudicial "spillover" effect, such that the cumulative impact of the evidence of all of the crimes may have caused the jury to believe that Gater was guilty of each individual crime. There was not a charge as to which the evidence was particularly weak. Rather, there was abundant evidence presented to demonstrate Gater's guilt as to each offense. Considering the fact that the evidence of the other crimes was cross-admissible, we are not persuaded that the result of the trial would have been different if these charges had been tried separately.
(iii) None of the charges was unusually inflammatory
Gater contends that joining the Alexander murder charge with the other charges was particularly unfair because the murder charge was highly inflammatory and may have altered the jury's decisions on what he calls "the less inflammatory alleged attempted murder cases." We disagree. Although Alexander died as a result of being shot while Roberson and Smith did not, the facts of all three shootings were similar. None of the shooting incidents was particularly more violent than the others. Gater asserts on appeal that the facts of the Alexander murder were more inflammatory than the facts of the other shootings because Alexander was not armed and was outnumbered by rival gang members. However, although Gater's other victims may have been armed, there was no evidence that either of them displayed a weapon or had the opportunity to draw a weapon. In addition, in those incidents, Gater arrived at the scene flanked by friends. For example, in the Roberson case, Gater shot from one car in a lengthy procession of cars. Because the facts of the Alexander murder are not more inflammatory than those of the other shootings, the trial court did not abuse its discretion in concluding that the charges should be tried together.
b. Joinder of the charges did not result in a denial of due process
Gater asserts that the trial court's denial of his motion to sever amounts to a denial of due process. "'[E]rror involving misjoinder "affects substantial rights" and requires reversal . . . [if it] results in actual prejudice because it "had substantial and injurious effect or influence in determining the jury's verdict."' [Citations.]" (People v. Grant (2003) 113 Cal.App.4th 579, 587.) "In other words, the defendant must demonstrate a reasonable probability that the joinder affected the jury's verdicts. [Citation.]" (Id. at p. 588.)
In light of the fact that evidence as to each shooting was cross-admissible and that the evidence was more than minimally relevant to establishing Gater's intent, Gater has not established that the joinder of counts rose to the level of a constitutional violation. (See People v. Sapp (2003) 31 Cal.4th 240, 259–260 ["Having concluded that defendant suffered no prejudice from the joint trial of the three murder counts, we also reject his contention that the joint trial violated his due process rights"], citing United States v. Lane (1986) 474 U.S. 438, 446, fn. 8 ["'Improper joinder does not, in itself, violate the Constitution' but rather 'rise[s] to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial'"].)
B. The wiretapped telephone conversations
Gater asserts that his due process right to a fair trial was violated when the trial court admitted evidence that was obtained through wiretaps of another Skyline member's home and cellular telephones. The challenged evidence includes conversations between Gater and Larry Jones in which the two men discussed the shooting death of an affiliate of the Skyline gang and their reactions to that event, including their desire to commit further violence in retaliation for the death.
1. Additional background
In April and May 2003, officers wiretapped the home and cellular telephones belonging to Larry Jones, a Skyline member. At trial, the prosecution introduced recordings of some intercepted telephone calls between Jones and Gater.
Defense counsel objected to the admission of the intercepted conversations on the ground that the evidence was more prejudicial than probative, and was likely to confuse the issues and mislead the jury. Specifically, defense counsel objected to certain conversations in which Gater and Jones discussed the shooting death of someone who Gater and Jones referred to as Maximilian, an affiliate of Skyline. Maximilian's true name was Melvin Patterson. According to defense counsel, there was an alleged agreement between some Skyline members to go to Oceanside to try to find and shoot members of the gang responsible for killing Patterson. Gater was not charged with any crime related to the Patterson shooting or with any actions taken in response to that killing.
The prosecutor responded that Gater's discussion of Patterson's death was relevant to Gater's motive with regard to the gang, as well as to demonstrate for the jury both Gater's demeanor and his voice. The court admitted the evidence for the purposes the prosecutor identified, and offered to give a limiting instruction to the jury. When asked by defense counsel if the court was ruling that the evidence was relevant, the court stated, "I think it's relevant to show – well, look. This is – all these crimes are done in furtherance of a criminal street gang. And I suppose that it is, therefore, relevant that he's committed to a criminal street gang, and also that you have proven that Skyline is a criminal street gang, [and] his level of commitment to it and – I think is [sic] relevant and his willingness to act on behalf of the criminal street gang is relevant and probative." The court also noted that admitting the conversations in evidence would give the jury an opportunity to hear what Gater's voice sounds like.
The prosecutor added that he intended to use the intercepted telephone conversations to demonstrate that as a result of Patterson's death, Skyline had "taken a loss, one of their members has been killed," and that this event had "stir[red] them into activity," leading to the Roberson shooting a day and a half later. Defense counsel objected to the use of the evidence for this purpose. The court eventually ruled that the prosecutor could not argue that the evidence demonstrated that the Roberson shooting occurred in direct retaliation for Patterson's death. The court reiterated its prior decision that the prosecutor could use the wiretapped conversations to argue that "Mr. Gater's a motivated street gang member that wants to act on behalf of his gang, for the benefit of his gang, and then after this conversation, two days later, he does."
The jury heard several of the intercepted telephone conversations, including two that took place on April 17, 2003. In the first conversation, Gater asked Jones whether he had heard that Patterson had been killed by members of a rival gang. Later in that conversation, Gater said that he needed to get a pistol because the rival gang members had pistols. In another telephone conversation between Gater and Jones that same night, Jones said, "We got to go up there," meaning that they should go to Oceanside, where Patterson had been shot and killed. Gater responded, "For real, tear them niggas' asses up."
The jury also heard a recording of a telephone conversation between Gater, Jones, and Gregory Fulgham, another Skyline gang member, that took place on April 20, 2003. During that conversation, Gater asked Fulgham if he had heard what Gater had done a couple nights before. Fulgham guessed that Gater had shot someone, and Gater told Fulgham that he had shot "Fred Rabbit." Roberson testified that his nickname was "Little Fred Rabbit."
The trial court admonished the jury regarding the wiretap evidence after the prosecutor played the recordings and again at the conclusion of the presentation of all of the evidence. The court instructed the jury:
"Up to this point you have heard a number of voice recordings in this case. You are only to consider these recordings as possible evidence of Mr. Gater's involvement in a criminal street gang, for motive and for voice recognition. [¶] You are specifically instructed not to consider these recordings as evidence that Mr. Gater had any involvement in the Melvin Patterson/Maximilian shooting or any possible retaliation related to it.
During closing argument, the prosecutor argued that the wiretapped conversations demonstrated that Gater was motivated to shoot and kill other gang members. The prosecutor noted that Gater had talked about his desire to obtain guns, and also commented on Gater's "[c]onstant use of gang terms." According to the prosecutor, the intercepted calls were "hard core gang conversations and gang conduct." The prosecutor also mentioned Gater's discussion regarding the Patterson killing: "And, of course, you also heard the call regarding the Patterson shooting where he and Larry Jones were talking about a fellow Blood who was murdered up in Oceanside, and they both were deciding together we got to do something about that. 'Even the squares got pistols now. We got to do something about that.'"
Later, the prosecutor argued "Why do you know defendant shot Mr. Roberson, the second case? Of course, he had the motive. Emerald Hills-Skyline. It happened the day after Mr. Patterson, Melvin Patterson, is murdered up in Oceanside. You heard him on the phone, hey, we got to do something. He's at least stirred up. Stirred into activity by the Melvin Patterson murder." Defense counsel did not object.
2. Analysis
Gater contends that the conversations between Jones and Gater concerning Patterson's death were irrelevant to any material issues in the case, were unduly prejudicial to him, and confused the issues for the jury. "The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. [Citation.] This standard is particularly appropriate when . . . the trial court's determination of admissibility involved questions of relevance . . . and undue prejudice. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra).) A proper exercise of discretion is "'neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Exercises of discretion must be "'grounded in reasoned judgment and guided by legal principles and legal policies appropriate to the particular matter at issue." [Citation.]" (Ibid.) Thus, although the abuse of discretion standard is deferential, "it is not empty." (People v. Williams (1998) 17 Cal.4th 148, 162.) The standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts. [Citations.]" (Ibid.)
Gater cites Evidence Code section 1101, subdivision (b) to support his assertion that evidence of uncharged crimes is inadmissible to show the defendant's disposition to commit a particular crime, suggesting that evidence concerning the Patterson shooting was inadmissible to show that Gater was disposed to shoot anyone. Evidence Code section 1101, subdivision (b) provides in pertinent part: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act." Evidence of the Patterson shooting was not admitted for the purpose of showing that Gater was disposed to commit the Roberson shooting. In fact, the evidence of the "uncharged crime" to which Gater is objecting concerns a crime that Gater is not alleged to have committed. It is thus unlikely that the jury could have used knowledge of the Patterson shooting to infer that Gater was disposed to commit any particular crime.
Gater further contends that the statements he made to Jones during their telephone conversations, and in particular, the discussion of the Patterson shooting, were far more prejudicial than probative. Gater complains that there was "no evidence of any connection between the shooting of Fred Roberson . . . and the shooting of Melvin Patterson," and that the mere fact that the two shootings occurred just days apart "is not dispositive." He claims that "[e]vidence of the Patterson shooting was not relevant as to any of the issues for which it was admitted – appellant's involvement in the Skyline gang, his motive, and for 'voice recognition.'"
As the trial court found, however, this evidence was particularly relevant to the question whether Gater committed the Roberson shooting for the benefit of a criminal street gang. Further, contrary to Gater's implied suggestion on appeal, the evidence was not introduced "only to show [Gater's] criminal disposition or bad character . . . ." Rather, it was introduced to show that Gater was motivated to act on behalf of his gang, and it was evidence from which the jury could reasonably infer that Gater shot at Roberson with the specific purpose of benefiting Skyline, a criminal street gang. That issue was clearly in contention at trial. The evidence was also relevant to the prosecution's claim that the Roberson shooting was a willful and premeditated attempted murder.
We reject Gater's contention that the intercepted telephone conversations were substantially more prejudicial than probative. "'Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." [Citation.]' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 805.) The content of the conversations was not unduly prejudicial. Although Gater and Jones were clearly discussing gang-related issues, their statements were not particularly inflammatory. The trial court did not abuse its discretion in determining that admitting this evidence would not pose an "intolerable" risk that Gater would not receive a fair trial. Additionally, the court's limiting instruction to the jury mitigated the potential prejudice to Gater that could occur as a result of the introduction of this evidence. The court specifically instructed the jury not to consider the intercepted telephone calls "as evidence that Mr. Gater had any involvement in the Melvin Patterson/Maximilian shooting or any possible retaliation related to it."
Gater further asserts that the admission of recordings of the intercepted telephone calls "created the additional substantial danger of confusing the issues and misleading the jury." Although he does not expressly say so, Gater suggests that the jury might have been confused about whether he had something to do with the Patterson shooting, in light of the fact that he was charged with a number of other shooting-related crimes. It is not likely that the jury was confused about whether Gater was involved in the Patterson shooting, since it was clear from the conversation between Gater and Jones that they were angered by the shooting. Their discussion centered around their desire to retaliate for the Patterson shooting. In addition, the trial court gave a clear admonition to the jury that the jury was not to consider telephone recordings as evidence that Gater was in any way involved in the Patterson shooting, thus dispelling any concern that the jury would be confused about Gater's possible involvement in the Patterson shooting.
C. The recording of Trice's "free talk" with the prosecutor and a detective
Gater contends that Trice's statement about why appellant shot Alexander constitutes inadmissible hearsay. He further contends that this evidence was not properly admissible to bolster Trice's credibility because the statements were admitted as prior consistent statements, which are admissible to prove a witness's credibility only under certain circumstances that Gater contends do not exist here. (See Evid. Code, § 791.) According to Gater, the admission of Trice's opinions as to why Gater shot Alexander "served only to inflame the passions of the jury," resulting in undue prejudice to Gater.
1. Additional background
During the prosecutor's case-in-chief, Trice explained on direct examination that he had signed a cooperation agreement with the district attorney's office. In exchange for his cooperation and truthful testimony at Gater's trial, Trice hoped to be allowed to withdraw his previously entered guilty plea to a robbery charge, for which he was facing 15 years in state prison, and instead enter a plea to a non-strike offense. At trial, Trice implicated Gater in the Alexander, Roberson, and Smith shootings.
On cross-examination, Trice acknowledged that he had provided information about Gater's participation in the offenses only after he, Trice, was arrested for robbery. Trice explained that he was taken to the district attorney's office where he engaged in a "free talk," which he described as an interview that took place after the prosecutor promised that he would not use the information obtained during the interview against Trice. Trice understood that after the prosecutor heard the information, the prosecutor would determine whether to offer Trice a deal with respect to the sentence he was facing. Trice agreed to cooperate with the prosecutor and signed a cooperation agreement.
Pamela Gater, Trice and Gater's mother, testified that Trice had a reputation for being dishonest. She further testified that Trice had told her that he had lied when he implicated Gater in the murder because he wanted a sentence shorter than the 15 years he was otherwise facing.
During rebuttal, the prosecution introduced in evidence a transcript of Trice's "free talk." The transcript included the following colloquy:
"[Trice]: Will I see my brothers anymore? I can't see my mom? Nah, I'm not doing it. I'll go and if you put me in as a witness I'll go and say I lied just to get out of jail or some bullshit.
"[Prosecutor]: Right. Right.
"[Trice]: I'm not doing this against my brothers. Anybody else, I tell you anything and everything.
"[Prosecutor]: I got you.
"[Trice]: But as far as my brother, I'm not going to do that."
After a detective reminded Trice that he had already implicated Gater in previous statements and suggested that Trice could improve his own situation by cooperating, Trice answered the detective's questions about the Alexander murder in a manner consistent with his testimony at trial. When the detective asked Trice why Gater had shot Alexander, Trice said, "Cause he's that way. He always wanted to be the one who has the gun. He always wants to be the one who shoots." When Trice was asked why Gater did "stupid stuff," Trice responded that Gater "[d]oesn't care." In response to being asked whether Gater thought that nothing would happen to him, Trice said, "Yep. Pretty much."
2. Analysis
The People contend that Gater waived his challenge to the admission of Trice's out-of-court statements. Generally, a defendant fails to preserve a claim for review if trial counsel fails to object to the admission of evidence on the ground raised on appeal. (People v. Dennis (1998) 17 Cal.4th 468, 530 ["The general rule . . . precludes review of questions on admissibility of evidence absent a timely and specific objection in the trial court on the ground urged on appeal"].) However, Gater also argues that his trial counsel was ineffective for failing to object to the introduction of Trice's free talk interview. We therefore consider the merits of the claim. (See People v. Marlow (2004) 34 Cal.4th 131, 150.)
Gater asserts that the statements Trice made during his free talk interview constitute inadmissible hearsay to which no legal exception applies. According to Gater, Evidence Code section 791, which permits the admission of out-of-court statements that constitute prior consistent statements, is not applicable here. Gater argues that subdivision (a) of Evidence Code section 791 does not apply because no inconsistent statement had been introduced for the purpose of attacking Trice's credibility. Gater further contends that subdivision (b) of the provision does not apply because "[t]here was also no express or implied charge by the defense that Trice's testimony was recently fabricated or influenced by bias or improper motive and the statement was made before the fabrication, bias or improper motive." (Italics omitted.)
As Gater explains, "the defense implicitly charged that Trice had an improper motive to testify against appellant to avoid a lengthy prison sentence for the felony charges pending against him." Because Trice made the prior consistent statements at a time when he was facing a lengthy prison sentence, the statements were not made before the "motive for fabrication" or "other improper motive" arose. Evidence Code section 791 thus does not provide a basis for admitting Trice's prior consistent statements. Nevertheless, we conclude that the erroneous admission of Trice's free talk interview was harmless. Although Gater suggests that the appropriate harmless error standard is that provided in Chapman v. California (1967) 386 U.S. 18, 24, we disagree. "[S]tate law error in the admission of hearsay" is reviewed under the standard provided in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Under Watson, reversal is required only if it is "reasonably probable that a result more favorable to defendant would have been reached" absent the error. (Watson, supra, 46 Cal.2d at p. 837.)
It is not reasonably probable that Gater would have received a better result if evidence of Trice's free talk interview had not been presented to the jury. The jury heard a great deal of evidence of Gater's guilt with regard to the Alexander shooting. The jury heard Capell's interview in which Capell told Detective Pendleton that he saw Gater fire a gun at Alexander twice as Alexander tried to run away from the group of Skyline and O'Farrell gang members. Capell also said that he had asked Gater why Gater shot Alexander, and Gater replied that he did not know. The jury also heard a recording of Reddick's interview with investigators in which Reddick said that he witnessed Gater shoot Alexander. Reddick's version of the events that night corresponded with Capell's account. Hunter, also a Skyline member, testified that while he and Gater were incarcerated together, Gater recounted to him a similar story about how the group of Skyline members had come across Alexander, and how Gater had shot Alexander in the head. Further, Trice testified at trial in a manner consistent with what he told detectives during his free talk interview. The jury would thus have heard this evidence even if the court had excluded Trice's free talk statements. Additionally, Trice's account of what occurred on the night of the Alexander shooting corresponded with other witness accounts of the events of that night.
Gater contends, however, that the prejudice he suffered as a result of the admission of Trice's free talk interview resulted not simply from the fact that the jury heard Trice say that Gater had told him how Gater had shot Alexander, but from the fact that evidence of the free talk interview improperly bolstered the credibility of Trice's trial testimony. One could argue, however, that the admission of Trice's free talk interview highlighted the defense theory that Trice was testifying out of self-interest. If the jury believed that Trice was testifying against his brother in order to serve his own interests, the admission of the free talk interview would not have altered this view, since Trice would have had the same improper motive when he participated in the free talk interview. There is no reason to believe that the jury found Trice more credible than it would have if jurors had not been exposed to Trice's free talk statements. Finally, the admission of Trice's free talk interview was insignificant in the context of the entire trial.
Although evidence from Trice's free talk interview may have been inadmissible, we conclude that defense counsel's failure to object to the admission of Trice's statements does not amount to ineffective assistance. "The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to the defendant." (People v. Stanley (2006) 39 Cal.4th 913, 954 (Stanley), citing Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) Gater not has demonstrated either that his attorney's actions fell below an objective standard of reasonableness or that there is a reasonable probability that the result of the proceeding would have been more favorable to Gator if defense counsel had objected to the admission of Trice's free talk interview.
With regard to the reasonableness of defense counsel's performance, it is possible that defense counsel had a strategic reason for not objecting to the admission of Trice's free talk interview. "'"Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decision making must be evaluated in the context of the available facts." [Citation.]' [Citation.]" (Stanley, supra, 39 Cal.4th at p. 954.)
Generally, "[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence. [Citations.]" (People v. Hayes (1990) 52 Cal.3d 577, 621.) Gater's counsel could reasonably have determined that allowing the jury to hear the free talk interview of Trice might bolster the defense contention that Trice was under pressure to tell investigators what they wanted to hear, and that he made the statements at issue to serve his own self-interest. As Gater points out in appellate briefing, Trice's free talk interview occurred at a time when Trice was facing a lengthy prison sentence; he thus may have had a motive to fabricate evidence against Gater. Gater's counsel could reasonably have decided that it would help the defense position if the jury could hear Trice initially refusing to implicate his brother, and then doing so only after being reminded that he could improve his personal situation if he cooperated with police.
Even if we were to conclude that in failing to object to the admission of Trice's free talk interview, defense counsel failed to meet an objective standard of reasonableness, Gater has not established that there is a reasonable probability that the result of his trial would have been different if his counsel had raised this objection. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. (Strickland, supra, 466 U.S. at p. 693.) The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "Specifically, 'When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.' [Citation.]" (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
As we concluded above, there is no reasonable probability that the result of this trial would have been different if the court had excluded the recording of Trice's free talk interview. There is thus no reasonable probability that the result of the trial would have been more favorable to Gater if defense counsel had objected to the admission of that evidence.
D. The photograph of Alexander's body at the scene
Gator contends that the trial court erred in admitting in evidence a photograph of Alexander's body lying on the sidewalk after he had been shot. According to Gater, this photograph was "particularly gruesome" and was "not relevant to any disputed issue in [the] case."
1. Additional background
Prior to trial, Gater moved to exclude certain photographs that showed Alexander's body, both at the scene of the murder and from the autopsy. Defense counsel argued that the photographs—in particular a photograph of Alexander lying on the ground in a pool of blood—were extremely graphic and would be unfairly prejudicial. Defense counsel also argued that because there was no dispute as to how the murder had occurred, but only as to who committed it, the victim's injuries could be explained through testimony, and no photographs were needed.
Defense counsel offered to stipulate that Alexander died from a bullet wound to the head. The prosecutor rejected this offer, and asserted that the photographs were relevant both to establish the existence of an intent to kill, and to corroborate witnesses' descriptions of what had occurred, including the fact that Alexander had been running away from Gater when he was shot. The prosecutor also pointed out that the photograph that showed Alexander's body in a pool of blood was the only photograph of the body at the crime scene.
The trial court ruled that the photograph was probative as to the direction in which Alexander had been moving when he was shot, and also noted that the photograph could corroborate witness accounts. The court concluded that the probative value of the photograph outweighed its potential prejudicial impact.
After the prosecutor's closing argument, defense counsel reiterated his objection to the prosecution's use of the photograph of Alexander's body at the crime scene. Defense counsel noted that the prosecutor had displayed the photograph to the jury three times, including during closing argument. The trial court did not respond to defense counsel's renewed objection, implicitly reaffirming its prior ruling as to the admissibility of the photograph.
2. Analysis
On appeal, Gater asserts that even if the photograph of Alexander's body at the crime scene corroborated the testimony of witnesses, the facts as to what had occurred at the scene were not in dispute, and thus, the photograph was only marginally relevant. According to Gater, the marginal relevance of the photograph did not outweigh the prejudice he suffered as a result of the court's admission of the photograph. Gater further suggests that the trial court's error in admitting the photograph was compounded by the manner in which the prosecutor used the photograph during trial (i.e., displaying it three times, including once during closing argument). Gater contends that the prosecutor's use of the photograph was not necessary to corroborate witness testimony, but rather, served "only to inflame the jury's emotions."
"'The admission of allegedly gruesome photographs is basically a question of relevance over which the trial court has broad discretion. [Citation.] "A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value."' [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 896.)
We conclude that the trial court did not abuse its discretion in permitting the prosecution to introduce in evidence a single photograph of Alexander's body at the crime scene. We have examined the photograph in question. Although the photograph depicts a bloody scene, the photograph is not unduly gruesome, and is relevant to show how Alexander was killed. As the Supreme Court has observed, "'"[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant."' [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 713.)
Even if we assume, as Gater suggests, that the photograph simply corroborated witness testimony as to how the Alexander murder occurred, this does not establish that the trial court abused its broad discretion in admitting the photograph in evidence. "'[P]rosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case.' [Citation.]" (People v. Roldan, supra, 35 Cal.4th at p. 713.)
E. The admission of Reddick's prayer at the end of his police interview was not unfairly prejudicial
Gater contends that the trial court erroneously admitted in evidence a prayer Reddick said at the end of his interview with Detective Bruce Pendleton. According to Gater, the statements Reddick made during the prayer were irrelevant to any material issue in the case. Gater contends that the prayer was improperly admitted to bolster Reddick's credibility, in violation of Evidence Code section 789 's prohibition against using evidence of a witness's religious beliefs to support his or her credibility. Gater also asserts that the introduction of Reddick's prayer constitutes prosecutorial misconduct, and that Gater's trial counsel provided ineffective assistance by failing to move, in limine, to exclude the prayer.
1. Additional background
At trial, the jury heard a recording of Detective Pendleton's October 2003 interview of Reddick concerning the Alexander shooting. The jury was also provided with a 54-page edited transcript of the interview.
Near the end of the recording, Reddick can be heard saying a prayer, after Pendleton left the interview room. The transcript of this portion of the interview states:
"(SOUND OF DOOR OPENING AND CLOSING)
AR (PRAYING) Dear Lord (Unin) . . . you know I know that I have to get right but (unin) get me through this (unin) keep ─ keep me in the right direction Lord or keep me walking towards that (unin). You know help me for ─ for I need help. You know. To give me (unin) really don't know what they're doing. You know. (unin) angel (unin) good Lord help me not turn my back towards (unin). I know you're out there to help me, you know. (Unin) 'cause there's no one better than you. (Unin). You know, forgive me and teach me, you know. Just don't punish me, teach me. Help me learn more for what ─ what I did. How can I help make it better Lord. You know. My life is rough Lord. It got bumpy roads. With your help we can just smooth them out a little bit. You know it's just hard right now Lord. I just need your guidance and your help and . . . everything is not gonna come easy in life Lord I understand, but you know . . . as long as I stick by you Lord it should be all right. Just keep your angels over my shoulders Lord, you know. You know if I die tomorrow I just want to know that I ─ I'm at peace Lord with ─ with you Lord. You know . . . (unin) I'm, I understand you Lord. You're-you're always in my heart. I'm one of your children Lord. Just ─ just help me keep faith you know. Help me stay strong Lord. You know help me not (unin). You know it's only so far (unin) . . . "
"(DOOR OPENS)
"----------------------------------------EDIT
"(PRAYING)
"AR Dear Lord . . . keep-keep me going towards (unin). I know that you're out to help me Lord."
"(END OF INTERVIEW)" (Grammar, punctuation and capitalization in original.)
Defense counsel objected to allowing the jury to hear Reddick's prayer. The court overruled the objection and allowed the jury to hear the rest of the tape recording that included Reddick's prayer. At the end of the court session that day, after the jury had been released, defense counsel renewed his objection, stating that the prayer was not part of the interview, that it was irrelevant to the case, that it caused the jury to sympathize with Reddick's "allegiance to religion," and that allowing the jury to hear the prayer impermissibly bolstered Reddick's credibility.
It appears that at some point, the prosecutor momentarily stopped playing the tape recording of the interview and at that time defense counsel interjected, "I'm going to object to this last part because I don't think it's relevant." Although defense counsel does not identify the prayer as the portion of the tape to which he is objecting, it appears from the context that this is the case. The court and attorneys discussed the matter off the record. Afterward, the court permitted the prosecutor to continue playing the tape recording of the interview.
The prosecutor initially responded by noting that the prayer was part of the recording, and that defense counsel had never requested that the prayer be excised from the recording. The prosecutor also argued that the prayer was relevant to demonstrate that Reddick was taking the interview very seriously.
Although it is not clear from the record, the prosecutor's comment suggests that defense counsel was given a copy of the tape recording of Reddick's police interview prior to trial.
The trial court ruled that Reddick's final statements from the interview were relevant to show that Reddick took the interview seriously. In making its ruling, the court stated,
"Well, frankly I think the fact that he was praying is admissible in the sense that he takes it seriously and this was not a conversation that he took lightly and the information that he provided was information that – I mean just from the flavor of the entire tape, the information was information that was – that he found to be pretty significant. [¶] And I don't – I mean I don't think that it's – should be considered from whether or not he's a religious person. [¶] But I think that it can be considered by the jury to show that he felt that this conversation he had with Detective Pendleton was a life-changing event for him at the time. And so I think that, therefore, the jury could look at it as bolstering his credibility.
[¶] . . . [¶]
"This is not – this is not using – Mr. Hickey, I suspect – well, I won't allow Mr. Hickey to use the fact that he's praying to vouch for the credibility of the conversation. [¶] But I think that it's part and parcel of his entire behavior during the conversation where at first he wasn't giving up very much, and then he's giving up a lot, and at the end he's going man, I need to change my life because I've basically snitched on guys and that's against the code, and I better change my life and move out of the gang life. I mean, that's kind of the way I took that prayer. [¶] So looking at it that way, I think that the jury's entitled to consider it."
"And if you want – if you want to draft a limiting instruction, that's fine, to say that whether or not he's a religious person is not to be considered by [the jury], but this evidence was offered to show that Mr. Reddick took his conversation with Detective Pendleton pretty seriously. Or we can just leave it."
After additional discussion, defense counsel noted that he did not think that a limiting instruction would solve the problem. Defense counsel moved for a mistrial, and the court denied the motion.
With regard to the prayer portion of Reddick's taped interview, the prosecutor stated during closing argument,
"And at the end of that tape, you guys heard this, so significantly, he sat there and prayed. Let me find the right path. Let me find the right way to go. [¶] What does that tell you? That tells you this was a life-changing moment for him. This was profound. I've done bad things, but please keep me in the right direction. This is a life-changing moment for him. It was momentous. He knows at that point he had turned his back on the gang lifestyle. He'd done the right thing. He's changing his life."
2. Analysis
a. The admissibility of the evidence
Gater contends that the recording of Reddick's prayer was inadmissible, pursuant to Evidence Code section 789. That section provides, "Evidence of [a witness's] religious belief or lack thereof is inadmissible to attack or support the credibility of a witness." Gater also asserts that the prayer was inadmissible under Evidence Code section 352 because, he contends, evidence of the prayer was more prejudicial than probative. According to Gater, the admission of the prayer created "an impermissible inference that Reddick feared retaliation for testifying against appellant in the instant case." We disagree that the trial court abused its discretion in implicitly determining that the prayer was more probative than prejudicial. Further, although evidence of the prayer may fall within the scope of Evidence Code section 789's prohibition regarding the use of evidence of a witness's religion to support that witness's credibility, we need not decide that issue because even if the court should have excluded the prayer portion of Reddick's taped interview, Gater has not demonstrated that the fact that the jury heard those statements affected the outcome of the trial.
Again, there was strong evidence of Gater's guilt in the Alexander shooting. There was similarly strong evidence that Gater was guilty of the Smith shooting ─ the other incident that Reddick discussed with Pendleton. To the extent that the jury may have found Reddick's statements to Detective Pendleton more credible than his trial testimony, this was more likely attributable to the fact that Reddick's trial testimony consisted predominately of Reddick claiming a failed memory and offering nothing of substance, while his statements to Detective Pendleton about what occurred on the night of the Alexander shooting were consistent with the details other witnesses had given. In addition, the jury gave no indication that it was having any difficulty deciding the issue of Gater's guilt on the Alexander murder charge. The jury sent eight notes to the judge, and asked for a read-back of witness testimony in five of those notes. The great majority of the witness testimony that the jury requested referred primarily—if not exclusively—to the Roberson and Smith shootings. The jury did not request a readback of any of Reddick's testimony, or any testimony related to statements Reddick made to Pendleton. The jury also asked two questions of the judge in two separate notes, neither of which indicated that the jury was having any difficulty deciding the issue of Gater's guilt with respect to the Alexander murder. In another note, the jury informed the court of a typographical error in the listing of the victim associated with count 3, the Smith shooting allegation.
The witness testimony that the jury sought to have read back included: (1) the testimony of Eduardo Arreguin, a witness to the Smith shooting; (2) the testimony of Anthony Gonzalez, a witness to the Smith shooting; (3) the testimony of Detective Jeff Johnson, who testified regarding the Roberson shooting; (4) the testimony of Detective D'Ann Carter, who testified about finding the gun that was used in the Roberson shooting; (5) the testimony of Detective Andrew Spear when he was recalled to the stand immediately after Detective Carter testified, during which Spear testified predominantly about his knowledge of the gang members present at the location where Detective Carter found the gun used in the Roberson shooting; (6) the testimony of Denton Cappell, who was questioned about being present at both the Alexander shooting and the Roberson shooting; (7) the testimony of Detective William Patrick Murphy when he was recalled to the stand after Denton Cappell testified, during which Murphy was asked about his questioning of Hunter, Reddick, Trice and Cappell and, in particular, about what Cappell told him about the Roberson shooting. From the content of the testimony the jury requested, it appears that the jury was having difficulty sorting out Gater's role and his potential culpability as to the Roberson and Smith shootings, not the Alexander shooting, and that the jury was not focused on Reddick's testimony or the statements he made to police.
Juror note number 4 said, "Regarding count #3 & lesser #3: [¶] If we find the defendant guilty of attempted voluntary manslaughter, do we have to find the defendant guilty of attempted murder?" Juror note number 8 said, "We would like to know if the aiding and abetting applies to all counts or just to count 2?" Count 2 was the Roberson attempted murder charge.
Under the circumstances, there is no reasonable probability that the jury's verdict would have been different if it had not heard Reddick's prayer at the end of the recording of his conversation with Detective Pendleton. Thus, Gater was not prejudiced by the court admitting the prayer in evidence.
b. The allegation of prosecutorial misconduct
Gater asserts that the prosecutor engaged in misconduct by offering Reddick's prayer as evidence because, he maintains, the evidence "was clearly inadmissible at trial, was irrelevant to any material issue in this case, and was offered solely to bolster the credibility of this witness, in a weak case in which the issue of credibility of witnesses such as Reddick was outcome determinative."
"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.' [Citation.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) "In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.'" (People v. Cole (2004) 33 Cal.4th 1158, 1202, quoting United States v. Agurs (1976) 427 U.S. 97, 108.) Misconduct that falls short of rendering a trial fundamentally unfair may nevertheless violate the California Constitution, but "'only if it "'involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 242.)
The prosecutor's presentation of the prayer Reddick said at the end of his police interview was not egregious conduct, and did not infect the trial with unfairness rising to the level of a denial of due process. As noted above, defense counsel had apparently been provided a copy of the recording prior to trial and did not request that that portion of the recording be edited out. In addition, although the trial court's ruling may have been incorrect, the prosecutor's argument in support of admitting the prayer was not so obviously wrong that it constituted misconduct. Further, this was not a situation in which the prosecutor used deceptive or reprehensible methods to persuade the jury. Again, the prosecutor did not hide the challenged statements from defense counsel, and defense counsel did not object to admission of the prayer portion of Reddick's statement until just before the prosecutor was going to play that portion of the recorded interview for the jury.
c. Counsel did not provide ineffective assistance by failing to move in limine to exclude Reddick's prayer
Gater contends that he is entitled to relief because his trial counsel provided ineffective assistance in failing to move, in limine, to exclude the final portion of Reddick's taped interview that included Reddick's prayer. In addressing this claim, we apply the same legal standards as discussed in part III.C.2., ante. Gater's claim fails because he has not made a sufficient showing that there is a reasonable probability that, but for defense counsel's failure to move to exclude the challenged portion of Reddick's taped interview, the result of the trial would have been more favorable to Gater. (See People v. Holt (1997) 15 Cal.4th 619, 703 [An ineffective assistance claim fails if the defendant makes an insufficient showing under either prong of the test].)
As we have already concluded, there is no reasonable probability that the outcome of this trial would have been different if the jury had not heard the prayer portion of Reddick's recorded interview with Detective Pendleton. Thus, even if Gater's attorney had successfully moved in limine to exclude this portion of Reddick's interview, there is not a reasonable probability that the outcome of this case would have been different. Gater thus cannot establish that his counsel rendered ineffective assistance by failing to file an in limine motion to exclude Reddick's prayer.
F. The trial court did not err in admitting evidence that Reddick's house was firebombed after he gave information to police in another matter
Gater contends that the trial court erred in permitting the jury to hear evidence that Reddick's house was firebombed after Reddick was perceived to have cooperated with law enforcement officers in another case. According to Gater, there was no evidence linking Gater to the firebombing incident. Thus, he contends, evidence of the firebombing was not relevant to any material issue in this case. Gater further asserts that the prosecutor committed misconduct in asking Reddick about the firebombing because the prosecutor's only reason for raising the issue was to suggest to the jury either that Gater was involved in the firebombing, or that Reddick thought that Gater would retaliate against him in a similar manner for testifying in this case.
1. Additional background
During his direct examination, Reddick recanted previous statements he had made to Detective Pendleton regarding Gater's participation in the Alexander and Smith shootings. When the prosecutor asked Reddick whether he was afraid that something might happen to him because he was testifying, Reddick claimed that he was not afraid. The prosecutor then asked Reddick if his house had been burned down because he had provided information to the police in the past, and Reddick responded, "Yeah." Defense counsel objected that the testimony was speculative and lacked proper foundation, but the court overruled the objections. The prosecutor continued to question Reddick about the firebombing incident, asking him whether he had had to throw a baby out of a window during the fire. Defense counsel again objected, this time stating that he had not received discovery on the issue of the firebombing.
In response to defense counsel's objection, the court held a conference with the attorneys outside the presence of the jury. The prosecutor acknowledged that he knew very little about the firebombing incident, other than that it had occurred after Reddick had given police information about a murder in Mission Bay, and that Reddick had previously testified about the fact that his house had been burned down.
Defense counsel asserted that he had not been provided with any discovery concerning the firebombing. He also complained that the jury would now believe that everyone who was testifying at trial would have a reasonable fear of retaliation. Defense counsel asked the court to excuse the jury and empanel a new one.
The trial court declined to grant a mistrial. The court concluded that the evidence was relevant to Reddick's state of mind as he testified in court and recanted his earlier statements. In response to defense counsel's complaints regarding lack of knowledge of the firebombing, the court offered counsel more time to prepare to cross-examine Reddick. The court further noted that it is common knowledge that "people in gangs don't like people who testify."
Defense counsel argued that if he had known about the firebombing incident earlier, he could have investigated who was responsible for it and could have looked into whether there might have been other motives for it. The court offered to allow defense counsel to conduct a hearing pursuant to Evidence Code section 402 after the prosecutor completed Reddick's direct examination.
When the jury returned to the courtroom, the trial court admonished the jury, stating:
"Ladies and Gentlemen, as to the issue of the fire bombing, you're only allowed to consider that as to what impact that fire bombing may have had on Mr. Reddick's testimony today or his attitude toward coming to court today. You're not to consider any other facts surrounding the fire bombing. [¶] The issue about the baby, that's stricken. That testimony or that question is stricken. [¶] So you're not to consider anything but the fact that the house was fire bombed and what impact that may or may not have had on Mr. Reddick's testimony."
The prosecutor did not ask Reddick anything further about the firebombing. After the prosecutor finished direct examination of Reddick, the court held another hearing outside the presence of the jury to allow defense counsel to question Reddick about the firebombing incident. Reddick testified that he did not know who had firebombed his house in April 2004. Reddick explained that the incident could have been related to a shooting that occurred on Father's Day in 2003. Reddick claimed that while he had not given police a videotape of the shooting, somehow the police came to possess a videotape. According to Reddick, some people—people whom Reddick did not identify—might have believed that Reddick had given the videotape to the police. Reddick was not sure that the firebombing was related to the videotape. He speculated that the firebombing might have occurred "because I had somebody else living with me at the time," and that person "had a beef with other people." Reddick was aware, however, that police believed that the firebombing incident was related to the Father's Day shooting.
Reddick stated that he did not believe that someone was going to set his house on fire after he testified in Gater's case. He also testified that he had not received any threats regarding his testifying in the case.
2. Analysis
a. The trial court did not err in admitting evidence of the firebombing incident
Gater asserts that evidence of the firebombing of Reddick's house "was irrelevant to any material issue in this case and was unduly prejudicial because it created the unsupported and impermissible inference that appellant and/or his fellow gang members were implicated in the firebombing incident and might retaliate against Reddick in a similar manner because of his testimony . . . in the instant case."
Evidence Code section 780 provides that absent some other statutory exception, "the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing . . . ." Among other things, a jury may consider the "existence or nonexistence of a bias, interest, or other motive" on the part of a witness. The fear of retaliation clearly could provide motive for a witness to alter his or her testimony. "'Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court.' [Citations.]" (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) The fact that Reddick's house had been set on fire after he was perceived as having cooperated with police was relevant to Reddick's credibility at trial in that it could explain why Reddick's trial testimony was not consistent with what he had told Detective Pendleton during their interview. If Reddick previously suffered retaliation as a result of perceived cooperation with police, one could reasonably infer that he might be wary that something similar could happen to him if he were to testify against Gater.
Evidence Code section 780 offers a non-exhaustive list of the kinds of matters a the court or jury may consider in determining a witness's credibility:
The fact that there was no evidence that Gater was involved in the firebombing does not mean that testimony about the firebombing was irrelevant. "Indeed, it is not necessary to show the witness's fear of retaliation is 'directly linked' to the defendant for the threat to be admissible. [Citation.] It is not necessarily the source of the threat ─ but its existence ─ that is relevant to the witness's credibility." (People v. Burgener (2003) 29 Cal.4th 833, 869-870.)
Further, the trial court did not abuse its discretion under Evidence Code section 352 in determining that the probative value of the testimony concerning the firebombing outweighed the potential prejudice to Gater. Although Gater asserts that evidence of the firebombing may have led the jury to infer that he was involved in that incident or that he had threatened Reddick regarding his testimony in this case, the prosecutor did not ask any questions that suggested that possibility. In addition, the trial court mitigated potential prejudice by admonishing the jury that the jury could consider the firebombing only for the impact it may have had on Reddick's testimony at trial, and that it was "not to consider anything but the fact that the house was fire bombed." By instructing the jury to focus on the impact the firebombing may have had on Reddick's state of mind while testifying at trial, the court limited the jury to considering how the firebombing may have influenced Reddick's feelings about testifying in a manner that was helpful to the prosecution. The jury was specifically told not to consider any other facts about the firebombing, including the question of who may have perpetrated the crime. The jury was essentially left to consider only whether Reddick's experience of having had his house set on fire might have made him fearful of assisting law enforcement, even if no specific threat had been made in connection with this case.
Gater complains that the court made an unsupported assumption that gang members, as opposed to non-gang members, had firebombed Reddick's house. However, the question of who actually firebombed Reddick's house and/or why is irrelevant to whether Reddick might have feared retaliation. What mattered with regard to Reddick's credibility at trial is what Reddick may have believed about who had firebombed his house and why. If Reddick had any concerns that his house may have been firebombed in retaliation for his perceived cooperation with police in a separate incident, then that might have given him a reason not to want to assist prosecutors again, even in an unrelated case.
Gater also complains that the trial court did not explain to the jury why the firebombing incident may be relevant to Reddick's attitude about testifying against Gater, but instead, simply told the jury that it could consider the evidence only as to the impact the incident may have had on Reddick's attitude about testifying. However, the reason the firebombing incident was relevant to the jury's assessment of Reddick's attitude was clear: the prior incident may have affected how Reddick felt about being seen as cooperating with law enforcement, and thus may have influenced his willingness to testify for the prosecution at Gater's trial.
Gater did not suffer undue prejudice as a result of the admission of evidence that Reddick's house was firebombed after Reddick was perceived as having cooperated with police in a prior incident, and the trial court did not abuse its discretion in allowing the jury to hear that evidence.
b. The prosecutor did not commit misconduct in questioning Reddick about the firebombing
Gater asserts that the prosecutor committed misconduct when he elicited information about the firebombing from Reddick. He claims that "[t]he admission of this irrelevant, surprise evidence is yet another example of prosecutorial misconduct in the present case." We disagree. As discussed above, the firebombing evidence was admissible for the purpose of questioning Reddick's credibility at trial. The prosecutor did not attempt to ask questions that suggested that Gater was involved in the firebombing incident, or that Reddick had been threatened in relation to this case. There is no basis for Gater's contention that the prosecutor intentionally offered the evidence for any improper purpose. Further, if there were any question about the evidence being used for an improper purpose, the trial court's limiting instruction adequately addressed this concern.
Although Gater does not expressly claim that the prosecutor's failure to provide discovery about the firebombing incident prior to the time of trial constituted prosecutorial misconduct, he suggests this in his argument. To the extent that Gater is raising a claim that it was prosecutorial misconduct for the prosecutor to elicit evidence about the firebombing without having provided defense counsel with discovery concerning the incident, Gater cannot establish that he suffered any prejudice as a result, and thus, cannot prevail on this claim. (See People v. Millwee (1998) 18 Cal.4th 96, 140.) When defense counsel raised the issue of not having been informed about the firebombing incident prior to trial, the trial court offered defense counsel additional time to prepare. The court also gave defense counsel the opportunity to question Reddick about the subject outside the presence of the jury, during an Evidence Code section 402 hearing, prior to having to cross-examine Reddick. This remedy was adequate to address any prejudice that the prosecutor's failure to disclosure information about the firebombing prior to questioning Reddick about it at trial might have caused.
G. The cumulative error doctrine does not require reversal of the judgment
Gater contends that, to the extent this court concludes that no individual error merits reversal, the cumulative error doctrine requires reversal of the judgment.
"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We have concluded that nearly all of Gater's asserted claims of error are without merit. We have further concluded that neither of the two assumed errors that the trial court may have committed requires reversal. After considering the potential prejudice from any cumulative effect of the presumed errors, we conclude that reversal of the judgment is not required under the cumulative error doctrine, given the insignificance of the possible errors in the context of the entire trial.
H. Section 654 applies to sentencing enhancements
Gater contends that the trial court erred in enhancing his sentence as to count 4 for the personal use of a firearm and at the same time, enhancing his sentence on that count for committing the offense for the benefit of a criminal street gang. According to Gator, the sentence the trial court imposed violates section 654's prohibition against double punishment for a single act.
1. Additional background
The jury convicted Gater of assaulting Smith with a firearm, and found true the allegation that Gater personally used a handgun (§ 12022.5, subd. (a)), as well as the allegation that Gater committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In sentencing Gater, the trial court imposed the midterm of six years for the assault. With respect to the jury's finding that Gater personally used a handgun, the court imposed a consecutive middle term of four years for the section 12022.5, subdivision (a) enhancement. With respect to the jury's finding that Gater committed the assault for the benefit of a criminal street gang, the court imposed an additional consecutive 10-year term under section 186.22, subdivision (b)(1)(C) enhancement.
2. Analysis
In a supplemental opening brief, Gater argues that the trial court erred in imposing both a firearm enhancement and a gang enhancement in connection with the conviction for assault with a semi-automatic firearm. Gater maintains that under section 654, which prohibits multiple punishment for the same "act or omission," the trial court should have stayed the four-year firearm enhancement under section 12022.5, because the jury's finding that Gater used a firearm within the meaning of section 12022.5 also served to increase the sentence for the section 186.22, subdivision (b)(1) gang enhancement from five to 10 years. In support of this argument, Gater relies on People v. Rodriguez (2007) 157 Cal.App.4th 14, review granted, March 12, 2008, S159497, 73 Cal.Rptr.3d 441, in which the appellate court concluded that section 654 prohibits imposition of both a section 12022.5 firearm use enhancement and a section 186.22, subdivision (b)(1)(C) gang enhancement based on the same firearm use. As the People point out, however, the California Supreme Court granted review in Rodriguez after Gater filed his supplemental brief. The case therefore may not be cited as precedent.
Section 654 provides: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
As we explain below, because language in a recent Supreme Court opinion suggests that section 654 does not apply to enhancement provisions, but rather, applies only to criminal offenses, we conclude that the trial court did not err in imposing sentences for both the section 12022.5, subdivision (a) enhancement and the section 186.22, subdivision (b)(1) enhancement.
The trial court imposed two enhancements related to Gater's conviction for assault with a semi-automatic firearm. The court first enhanced Gater's conviction pursuant to section 12022.5, subdivision (a), which provides that "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or 10 years, unless use of a firearm is an element of that offense." The court also enhanced Gater's conviction pursuant to section 186.22, subdivisions (b)(1) and (b)(1)(C), which provide in relevant part: "[A]ny person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
Although section 12022.5, subdivision (a) suggests that when the use of a firearm is an element of an offense, the section 12022.5 firearm enhancement does not apply, subdivision (d) of the same section creates an exception for violations of section 245 in which a firearm is used: "Notwithstanding the limitation in subdivision (a) related to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used . . . ." The offense for which the court imposed this particular section 12022.5 enhancement was a violation of section 245.
Among the felonies that are identified as violent felonies under subdivision (c) of section 667.5 is "any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55." (§ 667.5, subd. (c)(8).) It is clear that the trial court imposed the 10-year gang enhancement pursuant to subdivision (b)(1)(C) of section 186.22. Further, the only basis upon which the trial court could have concluded that the offense was a violent felony warranting a 10-year gang enhancement is that Gater used a firearm in the commission of the offense, and the firearm use was "charged and proved as provided in subdivision (a) of . . . Section 12022.5 . . . ." (§ 667.5, subd. (c)(8).)
The probation report establishes that this was, in fact, the basis for the 10-year gang enhancement. The report cites section 667.5, subdivision (c)(8) in relation to the appropriate punishment. Further, even though subdivision (c)(8) of section 667.5 defines a violent felony as both "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved . . .," as well as "any felony in which the defendant uses a firearm . . .," it is clear that with respect to count 4, no great bodily injury was charged or proved. Thus, the "violent felony" used for the 10-year gang enhancement had to have been based on a true finding as to a firearm, under section 12022.5.
The court enhanced Gater's sentence under section 12022.5 for his personal use of a firearm, and, on the basis of the true finding of the section 12022.5 firearm enhancement allegation, also enhanced Gater's sentence under section 186.22, subdivision (b)(1) for Gater's use of that firearm to benefit a criminal street gang. Whether the use of the section 12022.5 finding both to enhance a defendant's punishment under section 12022.5, and to increase the enhanced punishment for committing the offense for the benefit of a criminal street gang violates the rule of section 654, is an open question. Courts have disagreed as to whether section 654 applies to sentencing enhancements at all. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394-396 [discussing the division among courts of appeal as to whether section 654 applies to sentencing enhancements].) Despite the disagreement among the courts of appeal, the Supreme Court has specifically declined to address the issue. (See People v. Palacios (2007) 41 Cal.4th 720, 727-728 (Palacios).)
In Palacios, the Supreme Court concluded that section 12022.53 includes language that exempts enhancements under that provision from the reach of section 654:
"We are persuaded that, in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654. In light of this conclusion we need not address the People's argument that section 654 generally does not apply to enhancements. We leave that question for another day." (Palacios, supra, 41 Cal.4th at pp. 727-728.)
Although the Supreme Court has declined to address the question directly, in a recent case, People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), the court indicated, without deciding, that section 654 might not apply to enhancements. Specifically, in footnote 5, the Gonzalez court commented on the trial's court's decision to stay the additional firearm enhancements (the section 12022.53, subdivisions (b) and (c) enhancements, and the section 12022.5 enhancement) pursuant to section 654. (Gonzalez, supra, 43 Cal.4th at p. 1124, fn. 5.) In concluding that the trial court had been correct to stay, rather than strike, the prohibited enhancements, but that it had done so for the wrong reason, the Supreme Court explained:
"Although the trial court correctly stayed all of the prohibited firearm enhancements, it incorrectly issued those stays under section 654, which applies only to offenses punishable in different ways, not to prohibited enhancements committed in the commission of an unstayed offense." (Gonzalez, supra, 43 Cal.4th at p. 1124, fn. 5, italics added.)
Although the Gonzalez court was not deciding whether section 654 applies to limit the execution of sentencing enhancements, the court's comment suggests that it does not. By stating that section 654 "applies only to offenses punishable in different ways" (italics added), the Supreme Court lends credence to the People's contention that sentencing enhancements are distinct from substantive offenses for purposes of section 654's prohibition against double punishment for the same conduct. While it is possible that the Supreme Court intended only to express its view that section 654 does not apply to "prohibited enhancements" (i.e., additional enhancements that courts may not "impose" under the statutory language of section 12022.53), thereby leaving open the possibility that section 654 might apply to non-prohibited enhancements, we believe that the Supreme Court's choice of words indicates something more. If the Court wanted to establish only that trial courts are to stay "prohibited enhancements" pursuant to the terms of section 12022.53 and not section 654, it could have said such a thing without mentioning that section 654 "applies only to offenses . . . ." Taking guidance from this language in Gonzalez, we conclude that the trial court did not err in enhancing Gater's sentence pursuant to both section 12022.5, for his use of a firearm, and section 186.22, subdivision (b)(1)(C), for his commission of the underlying assault—which the court considered to be a "violent felony," as defined by section 667.5 because of the 12022.5 firearm use finding—for the benefit of a criminal street gang.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
I CONCUR: McCONNELL, P. J.
"(a) His demeanor while testifying and the manner in which he testifies.
"(b) The character of his testimony.
"(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
"(d) The extent of his opportunity to perceive any matter about which he testifies.
"(e) His character for honesty or veracity or their opposites.
"(f) The existence or nonexistence of a bias, interest, or other motive.
"(g) A statement previously made by him that is consistent with his testimony at the hearing.
"(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.
"(i) The existence or nonexistence of any fact testified to by him.
"(j) His attitude toward the action in which he testifies or toward the giving of testimony.
"(k) His admission of untruthfulness."