Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Riverside County No. RIF119755, Roger A. Luebs, Judge.
IRION, J.
In a trial involving multiple defendants and arising out of two separate shootings on the same day, a jury convicted appellants Jerry Adams, Jr., Everett Lee Gholston IV, and Correyon Devon Jefferson.
Adams, who was charged only in the first shooting, was found guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and one count of shooting at an inhabited dwelling (§ 246). Jefferson, who was charged in both shootings, but convicted only of charges arising out of the second shooting, was found guilty of the attempted murder of Anthony M. (§§ 187, subd. (a), 664) and one count of assault with a firearm (§ 245, subd. (a)(2)). Arising out of both of the shootings, Gholston was found guilty of three counts of assault with a firearm (§ 245, subd. (a)(2)); one count of shooting at an inhabited dwelling (§ 246); and the attempted murder of Felton Young III (§§ 187, subd. (a), 664). With respect to all three defendants, the jury made true findings on gang and firearm allegations. (§§ 186.22, subd. (b), 12022.53, subds. (d) & (e), 667, 1192.7, subd. (c)(8).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
The trial court sentenced Adams to an indeterminate prison term of 15 years to life and sentenced both Jefferson and Gholston to indeterminate prison terms of 30 years to life. All three of the defendants appeal.
Adams contends that the trial court improperly denied his motion to sever and his motion for mistrial. Adams and Gholston argue that insufficient evidence supports the true findings on the gang enhancements associated with the first shooting. Gholston argues that the trial court erred in not admitting, on due process grounds, a purportedly exculpatory statement made by an unavailable witness. All three of the defendants argue that the trial court improperly denied their Wheeler/Batson motion alleging racial animus by the prosecutor during jury selection. Jefferson contends that the abstract of judgment must be corrected to properly reflect the sentence imposed by the trial court. We conclude that only Jefferson's argument for correction of the abstract of judgment has merit and direct the trial court to correct the document. In all other respects, we affirm the judgments.
People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 97 (Batson).
I
FACTUAL AND PROCEDURAL BACKGROUND
Around noon on October 7, 2004, 16-year-old Lamar Lee and Anthony M. were in the garage of a house owned by the Young family on Sweeney Drive in Moreno Valley. Their friend Felton Young III was in the backyard of the house. The garage door was open, and Lee and Anthony M. watched as a car drove by and fired two guns at the garage. Lee and Anthony M. told the police that the shooters were Gholston and Adams and that they believed Jefferson was also in the car.
Young's father, Felton Young, Jr., often referred to as "Pops, " arrived home shortly after the shooting. Lee and Anthony M. told Pops that Gholston and Adams shot at them. Pops was familiar with Gholston and Adams, as his sons were friends with them, and Pops had started a competitive hip hop dance group called the Cali Clowns, in which Gholston had participated.
For the sake of clarity, we will refer to Felton Young, Jr., as "Pops" and intend no disrespect by doing so. We will refer to Felton Young III as "Young."
Around 2:30 p.m., two vehicles headed out from the Young family's house to look for the perpetrators of the drive-by shooting. Pops drove a Mercedes with two passengers. Young drove a van with Anthony M. among his passengers. Nearby at Pattilynn Drive, in front of Moreno Valley High School, they located a group of people including Gholston and Jefferson. Adams was not present.
Pops exited his car and questioned Gholston about the drive-by shooting. When the occupants of the van joined the confrontation, tensions escalated. Several members of the group that included Gholston and Jefferson pulled out guns and started shooting. Anthony M. was shot in his buttocks, with the bullet exiting his left hip. Young was shot in the back near the top of his tailbone. According to Pops's testimony, immediately after being shot Young identified Gholston as his shooter, and Anthony M. identified Jefferson as his shooter. A few days after the shooting, Young told the police that five different people were shooting at them, Gholston shot him, and Jefferson shot Anthony M.
Anthony M. was treated in the hospital and released the same day.
As a result of the shooting, Young had some of his intestines removed.
A shell casing from a.45 caliber gun found at the scene of the Sweeney Drive shooting matched shell casings found at the scene of the Pattilynn Drive shooting.
A second amended information charged crimes arising out of the Sweeney Drive shooting and the Pattilynn Drive shooting. For the Sweeney Drive shooting, Adams, Jefferson and Gholston were charged in counts 1 and 2 with the attempted murder of Lee and Anthony M. (§§ 664, 187, subd. (a)) and in count 3 with shooting at an inhabited dwelling (§ 246). For the Pattilynn Drive shooting, Gholston and Jefferson were charged with the attempted murder of Young and Anthony M. (§§ 664, 187, subd. (a)) in counts 4 and 5. Count 6 charged Adams with active participation in a criminal street gang (§ 186.22), but that charge was later dismissed by the prosecutor during trial. The second amended information also contained gang and firearm allegations in counts 1 through 5.
The case proceeded to a jury trial at which the defendants were Adams, Jefferson, Gholston and Jacob Allen Rogers. The jury heard an expert testify that the defendants were associates of the Sex Cash Money (Sex Cash) gang at the time of the shootings, but they were not confirmed members. Adams presented an alibi defense through witnesses who testified that he was at home when the Sweeney Drive shooting occurred.
Rogers was alleged in counts 4 and 5 to have committed attempted murder during the Pattilynn Drive shooting. The jury returned guilty verdicts as to Rogers, convicting him of lesser included offenses in counts 4 and 5, but he is not a party to this appeal.
On counts 1 and 2, the jury convicted Adams and Gholston of the lesser included offense of assault with a firearm (§ 245, subd. (a)(2)), and on count 3 convicted Adams and Gholston of shooting at an inhabited dwelling (§ 246). It also found true the allegations on counts 1, 2 and 3 that Adams and Gholston committed the crimes for the benefit or, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)), and on count 3 that Adams and Gholston personally used a firearm (§ 667, 1192.7, subd. (c)(8)). The jury acquitted Jefferson on counts 1 through 3.
On count 4, the jury convicted Jefferson of the attempted murder of Anthony M. (§§ 664, 187, subd. (a)) and convicted Gholston of the lesser included offense of assault with a firearm on Anthony M. (§ 245, subd. (a)(2)). On count 5, the jury convicted Gholston of the attempted murder of Young (§§ 664, 187, subd. (a)) and convicted Jefferson of the lesser included offense of assault with a firearm on Young (§ 245, subd. (a)(2)). On counts 4 and 5, the jury made a true finding on the allegation that Jefferson and Gholston committed the crimes for the benefit or, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)); and with respect to the attempted murder convictions in counts 4 and 5, it made true findings on the firearm allegations (§ 12022.53, subds. (d) & (e)).
II
DISCUSSION
A. Adams's Contention That His Trial Should Have Been Severed from His Codefendants to Prevent Prejudice to Him
1. The Issue Is Forfeited Because It Was Not Raised in the Trial Court
We first consider Adam's argument that the trial court abused its discretion and violated his constitutional right to a fair trial and due process when it denied his motion to sever his trial from that of his codefendants.
Adams contends that the trial court should have severed his trial because of "the prejudicial association with co-defendants Jefferson and Gholston who hours after the Sweeney [Drive] shooting perpetrated another shooting with one of the weapons used during the Sweeney [Drive] shooting." According to Adams, a joint trial "prejudicially associated [him] with two gun-wielding associates of the Sex Cash gang who shot at the same people who were involved in the Sweeney drive-by shooting." Adams also argues that joinder was improper under section 1098, which governs mandatory joinder, because he was not jointly charged in any count with one of his codefendants - Rogers - as Rogers was charged only with crimes arising from the Pattilynn Drive shooting, and Adams was charged only with crimes arising from the Sweeney Drive shooting. (See People v. Ortiz (1978) 22 Cal.3d 38, 43 [§ 1098 means "that a defendant may not be tried with others who are charged with different crimes than those of which he is accused unless he is included in at least one count of the accusatory pleading with all other defendants with whom he is tried"].) The Attorney General contends that Adams did not preserve these arguments for appeal. As we will explain, we agree.
Section 1098, which governs mandatory joinder, also gives the trial court the discretion to order separate trials. It provides in relevant part: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials." (§ 1098.)
Adams moved on three occasions to sever his trial from that of his codefendants. Each of the motions was premised solely on the fact that Adams objected to the continuances requested by the codefendants, and he did not want to defer to his codefendants' scheduling delays. The first motion, filed early in the case in April 2006, cited section 1098, and was made as part of a motion for severance or in the alternative for dismissal for lack of a speedy preliminary hearing. In that motion, Adams argued that a defendant has a statutory right to have a preliminary examination conducted within a certain time frame, absent good cause (§ 859b), but "the attorneys in this case will never all be available at the same time for a joint preliminary hearing." In response to the motion, a joint preliminary hearing was set, and the motion was apparently denied. The second motion, filed in December 2007, as part of a motion for bail reduction, was also premised on scheduling delays. Citing "the regular unavailability of the Co-Defendant's [sic] attorneys, " Adams sought a severance along with a bail reduction or release on his own recognizance, arguing that "the attorneys in this case will never all be available at the same time for a joint trial." The motion was denied. The third motion, made orally in June 2008, was based on the fact that Adams was "objecting to any continuance" of the trial to August 2008, as requested by some of his codefendants. The trial court denied that motion as well, and trial eventually commenced in September 2008.
The record contains no indication that Adams ever sought to have his trial severed from that of his codefendants on the ground that it would be prejudicial to him to be associated with them or because he was not charged in any of the same counts as Rogers. It is clear that he sought severance only because he was concerned about the delays caused by the logistical problems of coordinating the schedules of several different attorneys. Accordingly, the trial court was never called upon to decide whether, as Adams now argues on appeal, that (1) to avoid the danger of prejudice from association with his codefendants the trial court should have ordered separate trials under section 954, which governs joinder of counts, or (2) the trial court should have found joinder to be improper under section 1098 because Adams was not charged in any of the same counts as Rogers.
At oral argument Adams argued that his two written motions to sever were sufficient to raise the issues he now pursues on appeal because those motions cited section 1098 and People v. Massie (1967) 66 Cal.2d 899, 917. We disagree. The motions stated that section 1098 "gives the court the authority to order separate trials, " and they cited Massie for the proposition that "[t]he exercise of this authority is within the sound discretion of the court." Specifically, the motions excerpted the following quotation from Massie: "Although we need not decide whether the court was required to grant a severance under the circumstances, or that such denial of the motion after proper consideration of its grounds would have been an abuse of discretion, the court erred in refusing to exercise its discretion." (Massie, at pp. 917-918.) Although Massie contains a list of the possible grounds on which a court may order severance, including "prejudicial association with codefendants, " Adams did not cite that portion of the opinion or provide citation to any case granting severance on the ground of prejudicial association. (Massie, at p. 917.) Thus, we conclude that the motions cited section 1098 and Massie only to establish that the trial court possesses the authority to order a severance, not to advance either of the arguments that Adams now makes on appeal.
Section 954 provides in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated...; 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." When considering "joinder of counts under section 954, our Supreme Court set out four criteria to guide trial court discretion: (1) whether evidence of the crimes would be cross-admissible; (2) whether some charges are likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a strong one, or with another weak case; and (4) whether any of the charges is a potentially capital offense." (Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 939, citing People v. Marshall (1997) 15 Cal.4th 1, 27.)
Because Adams did not move for a severance on the grounds that he now asserts, he has forfeited the right to make the argument on appeal. (People v. Jenkins (2000) 22 Cal.4th 900, 949 [specific argument for severance was forfeited on appeal because it was not raised in the trial court]; People v. Mitcham (1992) 1 Cal.4th 1027, 1049 [rejecting argument that the trial court erred in denying a severance, as "[d]efendant did not raise the arguments he now makes, nor does he presently claim that the trial court abused its discretion in rejecting his prior arguments"].) There is no merit to Adams's attempt to distinguish Mitcham and Jenkins on the ground that that motions to sever in his case were "sufficient to alert the trial court to his claim, and this is the same claim he raises on appeal." Adams did not alert the trial court to the claims that he would be prejudiced by association with his codefendants or that joinder was improper. His argument for severance in the trial court, based on the delays occasioned by a multiparty trial, is in no way related to the ground for severance that he now advances on appeal. We therefore reject Adams's appellate challenge regarding severance on the ground that it has not been preserved for appeal.
Adams argues that he should be excused from his forfeiture because "the trial court denied [his] two motions to sever made before trial" and "[a]ny objections to consolidation or renewal of the motion would have been futile." We reject the futility argument, as the trial court never indicated how it would rule on a severance motion premised on the argument that Adams would be prejudiced by association with his codefendants or that joinder was improper.
2. Adams Has Not Established Ineffective Assistance of Counsel
Adams contends that to the extent he forfeited his severance arguments because defense counsel did not raise them at trial, he received ineffective assistance of counsel. We conclude that Adams has not established ineffective assistance of counsel.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.) A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); Ledesma, at pp. 216, 218.) Prejudice is shown when "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." (Strickland, at p. 694.)
Further, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442 (Lucas); see also People v. Anderson (2001) 25 Cal.4th 543, 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation."].)
We are not able to conclude that "there simply could be no satisfactory explanation" for defense counsel's failure to seek severance on the ground that Adams would be prejudiced by association with his codefendants. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) The record indicates that defense counsel's sole reason for bringing the severance motions was to avoid the delay caused by the codefendants. Once delay was no longer an issue and trial was set to start, defense counsel could have decided against severance because Adams would benefit by being tried together with his codefendants in a trial where the jury would hear extensive evidence about the Pattilynn Drive shooting and learn that Adams was not present. Adams's main defense was that he was mistakenly identified as having been in the car during the Sweeney Drive shooting and was instead at home during that shooting where several witnesses testified that they saw him. Evidence that Adams was not with Gholston and Jefferson at the Pattilynn Drive shooting less than three hours later, would lend credibility to his defense theory. Therefore, Adams's argument for ineffective assistance of counsel fails because the record on appeal does not demonstrate that "there could be no rational tactical purpose for counsel's omissions." (Lucas, supra, 12 Cal.4th at p. 442.)
B. The Trial Court Did Not Err in Denying the Wheeler/Batson Motion During Jury Selection
Adams and Jefferson, joined by Gholston, argue that the trial court violated their state and federal constitutional rights by denying defense counsel's motion alleging racial animus in the prosecutor's exercise of peremptory challenges against two Black jurors: E.H. and P.B.
The challenge was asserted by counsel for Adams, Jefferson and Gholston. Appellants are Black.
1. Factual Background
E.H. was part of the original group of prospective jurors questioned on the first day of jury selection. During voir dire, E.H. stated that her father was incarcerated in 1996, and he passed away in 2004. She thought her father was treated fairly by the system, and she was not angry at the police, court or lawyers, as her father told her "it was something he did" and "it was basically his choice and the consequences he had to pay." The prosecutor asked E.H. about a tattoo on the back of her ear and whether it symbolized anything in particular. E.H. stated that the tattoo represented her son's astrological sign. The prosecutor exercised a peremptory challenge against E.H.
P.B. later was added to the panel of prospective jurors to fill an empty seat. When questioning the group of prospective jurors that included P.B., the prosecutor asked a question about circumstantial evidence, giving a hypothetical about a bank robbery in which the police caught a suspect "just down the street" who was "wearing similar clothes" and "holding a bag of money in their hands that came from that bank." The prosecutor explained that "those little pieces of evidence build up to say that you guys could come to the decision that person was the one that did it." After stating that circumstantial evidence is "just as good as if somebody actually saw the person, or could identify the person, " the prosecutor asked, "Is everybody comfortable with that?"
Turning to P.B., the prosecutor said, "[P.B.], you['re] kind of giving a little bit of a grimace there. What does that mean?" P.B. responded, "That could be a false witness. I don't think so, simply because the bank robbers were running through [the] neighborhood where lots of people are dressing the same and dropped their money, and a kid happened to pick it up and policem[e]n drive up on them, we see it happens all the time." The prosecutor pursued the issue with P.B., giving the example of a residential burglary. She stated that "very rarely do victims of that crime see the person that actually broke into their house, " but if a suspect "is caught down the street holding a ring that looks just like the person's in the house, " then "those little bits and pieces can be used to say he was the one." The prosecutor asked "Can you see that situation where you could use other evidence besides actual direct evidence?" P.B. answered affirmatively. However, when the prosecutor followed up by asking P.B. "Do you feel comfortable with that?" he responded "No, I disagree with you. No, simply because there should still be some facts, I think to it. I mean after all again if the kid is running through the neighborhood and happened to stumble upon those things. And if the person in the bank says, well, he was 6'5", and this kid they just happen to pick is only 5'10". You have to have more facts, I think."
Upon further questioning, P.B. agreed with the prosecutor's statement that "a little discrepancy... doesn't necessarily mean that the crime didn't happen." The prosecutor then returned to the circumstantial evidence issue. She asked, "So, [P.B.], I just want to be clear, are you saying unless somebody specifically saw the person do it with their own eyes that that would be the only evidence that you would be able to accept?" P.B. answered, "Well, along with the facts. You have fingerprints, and you got to have something in concrete in that area when you are identifying them. I mean, you just can't assume anything." The prosecutor then asked, "So the circumstantial evidence, that type of evidence you don't think that would be enough even if that is all I have, that is all I got is that circumstantial evidence?"
At that point, the trial court intervened, stating: "Well, it depends on what it is, counsel. I think he is saying it depends on how much it is, how you weigh it, how credible it is, whatever. And to tell him you got to find him guilty because there is some circumstantial evidence I think is an unfair inference to expect him to agree to. I think we have belabored this issue enough. Let's move on."
2. The Trial Court's Ruling
When the prosecutor exercised a peremptory challenge against P.B., defense counsel made a motion objecting to the alleged systemic exclusion of two Blacks from the jury, namely E.H. and P.B.
The trial court found facts sufficient to create "an inference that the challenges may have been exercised for improper motive" and asked the prosecutor to explain the basis for excusing E.H. and P.B.
Regarding E.H., the prosecutor pointed to E.H.'s tattoo and the fact that her father was convicted in 1996. The prosecutor explained that "if there is a tattoo showing on a person's body, I systematically do kick them off because... the tattoo, I feel, ... is something outside of societal norm. I want to have people within the norm." She also explained that if prospective jurors "have a family member arrested recently, I do kick them off the jury because of their close ties to the system."
The trial court expressed some skepticism as to both grounds. With respect to the tattoo, the trial court took note of the "amount of tattoos in our society now, " including among prosecutors in the district attorney's office. The prosecutor responded, "Your Honor, it is my personal belief that if someone has a tattoo showing, they don't respect or don't have the respect for society." With respect to the fact that E.H.'s father was convicted in 1996, the trial court asked, "You are going to kick everybody up there who has had some family member that had some negative contact with law enforcement?" The prosecutor said that she was planning to challenge the jurors who fell into that category, including S.S., who had incurred an arrest for a misdemeanor, but that she would not be challenging one prospective juror - a Black woman, who ended up being impaneled as a juror - because her husband was arrested over 20 years ago.
The prosecutor initially did not follow through on excusing S.S., and defense counsel brought that fact to the trial court's attention. However, the prosecutor stated that she had forgotten to challenge S.S., and when voir dire was reopened before the jury was sworn because one of the final jurors was excused for cause, the prosecutor took the opportunity to exercise a challenge against S.S.
Regarding P.B., the prosecutor stated that she "felt that he would have a difficult time with the concept of circumstantial evidence." The prosecutor explained that "he gave multiple answers that said that the person who actually saw it, unless there is some kind of concrete evidence like that, he wouldn't be able to vote guilty.... The reason why I focused on him is because I wanted to see where he was at." The trial court stated that "I guess I would have made a different judgment than you did" about P.B., but "I can see that where you asked the questions and responses he gave that you might think that he has some difficulty with the concept of aiding and abetting, and natural and probable consequences, and circumstantial evidence." The trial court observed P.B.'s responses were "largely... in my opinion a product of the way you asked the questions, " but it commented, "I can see where you may have come to that conclusion."
After considering the prosecutor's credibility, the trial court denied the motion. It stated, "Well, at the end of the day I'm supposed to assess your credibility, decide what is in your heart and mind. Whether I would make decisions different than you isn't really the issue. The issue is whether your explanations are credible to me.... [G]iven the way you've managed the case so far, the decision you've made with respect to these various jurors, and the explanation you've given me, evaluating your tone and demeanor, I'm going to find that you're credible; that you're making those decisions for reasons other than racial bias."
Later during the trial, counsel for Gholston brought to the court's attention that one of the jurors had a tattoo on the back of his neck. The prosecutor stated that she had not seen the tattoo because the juror had been wearing collared shirts. At that point, the trial court also pointed out for the record that two of the jurors and one of the alternate jurors were Black.
3. Applicable Legal Standards
Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race or ethnicity. (See Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at p. 97.) "A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias - that is, bias against 'members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds' - violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution." (People v. Avila (2006) 38 Cal.4th 491, 541.)
A Wheeler/Batson motion to challenge the use of peremptory challenges initiates a three-step process. "First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).)
At the first step, "[t]o make a prima facie showing of group bias, 'the defendant must show that under the totality of the circumstances it is reasonable to infer discriminatory intent.' " (People v. Davis (2009) 46 Cal.4th 539, 582.) At the second step, "[a] prosecutor asked to explain his conduct must provide a ' "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' [Citation.] 'The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' " (Lenix, supra, 44 Cal.4th at p. 613.) "At the third stage of the Wheeler/Batson inquiry, 'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.] In assessing credibility the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (Ibid., fn. omitted.)
"Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges " 'with great restraint.' " [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' " (Lenix, supra, 44 Cal.4th at pp. 613-614.) "The best evidence of whether a race-neutral reason should be believed is often 'the demeanor of the attorney who exercises the challenge, ' and 'evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." ' " (People v. Stevens (2007) 41 Cal.4th 182, 198 (Stevens).)
4. The Trial Court's Decision Is Supported by Substantial Evidence
The trial court expressly determined that defense counsel had made a prima facie case of group bias, and thus proceeded to the second and third steps of the inquiry, in which it asked for and evaluated the prosecutor's explanations for excusing E.H. and P.B. to determine the ultimate factual issue of whether the challenges were motivated by purposeful discrimination. We, too, focus on that ultimate finding, to determine whether it is supported by substantial evidence. (See Lenix, supra, 44 Cal.4th at p. 613, fn. 8 ["Here, the trial court requested the prosecutor's reasons for the peremptory challenges and ruled on the ultimate question of intentional discrimination. Thus, the question of whether defendant established a prima facie case is moot."].)
In their appellate briefing, Jefferson and Adams argue that the prosecutor's explanations for challenging E.H. and P.B. were not credible, and thus substantial evidence does not support the trial court's finding regarding the lack of racial animus. We now turn to an examination of that issue.
a. Challenge to the Credibility of the Explanation Regarding E.H.
Appellants' first argument regarding E.H. focuses on the trial court's observation that because tattoos are increasingly common in society, it was finding it "very difficult to find that explanation credible" when the prosecutor relied on E.H.'s tattoo as the motivation for exercising a peremptory challenge. Appellants argue that because of this observation by the trial court, substantial evidence does not support its ultimate decision that the prosecutor's motives for challenging E.H. were legitimate. We are not convinced by appellants' argument.
As we have explained, "[t]he best evidence of whether a race-neutral reason should be believed is often 'the demeanor of the attorney who exercises the challenge, ' " which the trial court is uniquely qualified to assess. (Stevens, supra, 41 Cal.4th at p. 198.) Although the trial court initially commented that it found it "very difficult" to credit the prosecutor's focus on the tattoo as a basis for her challenge of E.H., the prosecutor then elaborated on why she had focused on the tattoo. Having considered those comments, the trial court evaluated the prosecutor's "tone and demeanor" and found that she was credible. The trial court was uniquely situated to make the evaluation, and we find no basis to question that assessment with respect to the explanation about E.H.'s tattoos, regardless of whether the trial court first reacted to the prosecutor's explanation with skepticism.
Further, we attach no significance to the fact that one of the impaneled jurors apparently had a tattoo on the back of his neck. As the prosecutor explained when the tattoo was brought to her attention during trial, she had not noticed it during voir dire because the juror was wearing a collared shirt.
Appellants also take issue with the credibility of the prosecutor's explanation that she also relied on the incarceration of E.H.'s father as a ground to excuse her from the jury. Appellants point out that the prosecutor did not strike other jurors who had family members who had been arrested, and they point out that the prosecutor initially forgot to exercise a challenge to S.S., who herself had been arrested for a misdemeanor. According to appellants, these actions show that the prosecutor was not in fact concerned about the fact that E.H.'s father had been incarcerated, but challenged E.H. because of her race.
At the outset, we do not find it significant that the prosecutor initially neglected to exercise a challenge against S.S. When the oversight was brought to the prosecutor's attention, she took the next opportunity to exercise the challenge.
With respect to the seated jurors with family members who were arrested, appellants point out that juror No. 1 had a son who was arrested, juror No. 6 had a father-in-law arrested for driving under the influence, and juror No. 12 had a brother who was arrested "a few times" for driving under the influence." In essence, appellants ask us to perform a comparative juror analysis to determine whether the prosecutor's stated reason for challenging E.H. was credible. "Comparative juror analysis must be performed for the first time on appeal on review of claims of error at Wheeler/Batson's third stage... when the defendant relies on such evidence, and when the record is adequate to permit the comparisons." (People v. Hamilton (2009) 45 Cal.4th 863, 902, fn. 12.) "[C]omparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination." (Lenix, supra, 44 Cal.4th at p. 622, italics added.) " '[A]ll of the circumstances that bear upon the issue of racial animosity must be consulted.' " (Ibid.)
Looking at the totality of the circumstances, a comparative juror analysis does not lead us to question the credibility of the prosecutor's explanation that the incarceration of E.H.'s father was a genuine basis for the exercise of her challenge against E.H. Significantly, the prosecutor explained that it was not solely the incarceration of E.H.'s father, but also the presence of E.H.'s tattoo, that convinced her to challenge E.H. The other jurors who had family members with an arrest history did not possess that additional factor. It is also significant that a fourth juror -juror No. 7, who was Black - had a family member with an arrest history. Specifically, her husband had been arrested over 20 years earlier. The prosecutor did not challenge juror No. 7, despite her race and her husband's arrest history. That fact undermines any inference that the prosecutor was using the arrest history of Black prospective jurors' family members as a pretext for challenging them based on racial animus. (See People v. Turner (1994) 8 Cal.4th 137, 168 (Turner) ["While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection."].)
In conducting a comparative juror analysis to determine whether the prosecutor's challenges were based on racial animus toward having Blacks serve on the jury, we also find generally significant, as did the trial court, that two of the impaneled jurors were Black, as was one of the alternates. While not dispositive, this fact further supports a conclusion that the prosecutor was not motivated by racial animus in exercising her peremptory challenges. (Turner, supra, 8 Cal.4th at p. 168.)
b. Challenge to the Credibility of the Explanation Regarding P.B.
Appellants claim that the prosecutor's reason for challenging P.B. was not credible because "the prosecutor used her voir dire to manufacture a spurious reason to excuse P.B." According to Jefferson, the prosecution "badgered P.B. into appearing to disagree with her on the question of the import of circumstantial evidence." We do not agree.
The dialogue between the prosecutor and P.B. shows that the prosecutor could reasonably have concluded that P.B. may have had trouble applying the concept of circumstantial evidence. First, we note that the prosecutor singled out P.B. because, as she stated, he was grimacing when she asked whether the prospective jurors were comfortable with the concept that circumstantial evidence is "just as good as if somebody actually saw the person, or could identify the person." Thus, instead of the prosecutor manufacturing a dialogue with P.B., it appears that P.B. invited the dialogue by grimacing in response to the prosecutor's question. Second, P.B. gave the prosecutor a reason to continue her dialogue with him after the first questions. When the prosecutor followed up with the burglary hypothetical, P.B. again stated that he was uncomfortable with the concept of circumstantial evidence as she described it. Third, based on what P.B. stated, we can understand - as the trial court did - why the prosecutor would view P.B. as an unfavorable juror, regardless of his race. P.B.'s expressed skepticism toward circumstantial evidence and his insistence on corroborating facts could reasonably have led the prosecutor to believe that he would be more likely to favor a defense verdict than other jurors.
Because the prosecutor's reasons for challenging P.B. were reasonable and had a basis in accepted trial strategy, substantial evidence supports the trial court's conclusion that they were credible. (See Lenix, supra, 44 Cal.4th at p. 613.) We therefore reject the argument that the prosecutor challenged P.B. based on racial animus rather than because of his statements during her voir dire dialogue with him.
In sum, applying our deferential standard of review, we conclude that substantial evidence supports the trial court's ruling on the Wheeler/Batson motion.
C. Gholston's Contention That the Trial Court Violated His Constitutional Right to Due Process by Failing to Admit Out-of-Court Statements of an Unavailable Witness
1. Gholston Did Not Preserve the Issue for Appeal
We next consider Gholston's contention that the trial court violated his constitutional right to due process by not admitting a statement made to police by Leshawn Lewis after Lewis refused to testify at trial.
The statement was given to police under the name Deondre Lewis. Counsel learned that the statement was likely given by Leshawn Lewis, who used the name of his older brother Deondre, and thus Leshawn was called to testify about the statement. For the purpose of our discussion we assume that the statement was given by Leshawn, whom we will refer to as "Lewis."
According to Lewis's statement during a recorded interview with police on the day of the shootings, he was in the van driven by Young to Pattilynn Drive and viewed the shooting at that location. When asked by police whether Gholston had a gun during the shooting at Pattilynn Drive, Lewis said, "I don't know, I was running." The investigator asked again, "And you didn't see [Gholston] with a gun?" Lewis answered, "Nah. I didn't... I done... all I seen was the White dude because I remember him." A short time later in the interview Lewis volunteered, "I think [Gholston] did shoot too because [Gholston] shot at the house this morning." He explained that his statement was based on the fact that the witnesses to the Sweeney Drive shooting had identified Gholston as involved in that shooting.
Lewis was called by Gholston as a trial witness, but Lewis refused to testify, invoking his right under the Fifth Amendment to the United States Constitution. The trial court conferred use and derivative use immunity on Lewis, but he still refused to testify. The court found Lewis in contempt and imposed a monetary fine and a five-day jail term.
Counsel for Gholston sought to have Lewis's statement to the police introduced into evidence under the exception to the hearsay rule as a declaration against Lewis's penal interest under Evidence Code section 1230, but the trial court denied the request, ruling that the exception did not apply. Defense counsel did not make any other arguments for the admission of Lewis's statement.
For the first time on appeal, Gholston argues that by not admitting Lewis's statement, the trial court violated his due process rights. (See, e.g., Chambers v. Mississippi (1973) 410 U.S. 284, 302; Green v. Georgia (1979) 442 U.S. 95, 97; Holmes v. South Carolina (2006) 547 U.S. 319, 331.) Gholston argues that Lewis's statement should have been admitted to preserve his due process right to present a defense, despite the applicability of the hearsay rule. As Chambers observed, "the hearsay rule may not be applied mechanistically to defeat the ends of justice." (Chambers, at p. 302.)
To preserve the appellate argument that his constitutional right to due process compelled the admission of Lewis's statement, Gholston was required to present that argument to the trial court. (People v. Loker (2008) 44 Cal.4th 691, 729 [appellant's claim that the trial court was required to admit hearsay testimony during penalty phase was forfeited because constitutional grounds for admission were not raised at trial]; People v. Smithey (1999) 20 Cal.4th 936, 995 ["In seeking admission of [the witness's] testimony at trial, defendant did not contend that the federal Constitution compelled admission of this hearsay testimony, and he may not do so for the first time on appeal."].) Because defense counsel did not raise the constitutional issue with the trial court, the issue is forfeited and we will not consider it on appeal.
We decline to exercise our discretion to consider the issue, despite the forfeiture, on the grounds urged by Gholston, namely, "to forestall a later claim that trial counsel's failure to predicate his motion on those additional grounds reflects constitutionally inadequate representation, and because in the context of this case the new theories raise only issues of law and factual questions that this court decides independently." (People v. Mattson (1990) 50 Cal.3d 826, 854.)
2. Gholston Has Not Established Ineffective Assistance of Counsel
Gholston argues that he received ineffective assistance from his counsel, who failed to argue that Gholston's due process rights compelled the admission of Lewis's statement.
As we explained above, a defendant claiming ineffective assistance of counsel must show both (1) deficient performance by counsel; and (2) prejudice. (Strickland, supra, 466 U.S. at p. 687; Ledesma, supra, 43 Cal.3d at pp. 216, 218.) Prejudice requires "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." (Strickland, at p. 694.)
As we will explain, Gholston has not established a reasonable probability of a different result had counsel successfully obtained the admission of Lewis's statement into evidence. Lewis's statement was not strongly exculpatory of Gholston. Although Lewis stated to police that he did not see Gholston with a gun at Pattilynn Drive, the entire context of his statement reveals that this was because he was busy running away and was not looking at Gholston. Lewis never stated to the police that he saw Gholston and that Gholston did not have a gun. Indeed, as part of his statement, Lewis stated that he believed that Gholston was one of the shooters at Pattilynn Drive because Gholston had been identified as a shooter at Sweeney Drive. Had Lewis's statement been admitted at trial, the jury would have been left with the impression that Lewis simply did not know from his own observation whether Gholston had a gun at Pattilynn Drive.
Further, the other evidence that Gholston had a gun at Pattilynn Drive was strong and would have negated Lewis's relatively weak statement that he did not see Gholston with a gun. Young told Pops and the police that he saw Gholston pull a gun out of his backpack and shoot him, and Pops saw Gholston with a.45 or.44 caliber gun at Pattilynn Drive. Further, shell casings from the same.45 caliber gun that was fired at Sweeney Drive by either Gholston or Adams, were found at Pattilynn Drive, where only Gholston, and not Adams, was present.
We therefore conclude that Gholston has not established ineffective assistance of counsel, as it is not reasonably probable that the outcome for Gholston would have been more favorable had defense counsel successfully sought admission of Lewis's statement at trial.
D. Substantial Evidence Supports the Jury's True Finding That the Sweeney Drive Shooting Was Committed for the Benefit of a Criminal Street Gang
Adams and Gholston contend that insufficient evidence supports the jury's true finding on the enhancement allegations that counts 1 through 3 (i.e., the counts arising out of the Sweeney Drive shooting) were committed for the benefit of, at the direction of, or in association with a criminal street gang.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.... We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.... If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.... 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted (Albillar).)
The enhancement set forth in section 186.22. subdivision (b)(1) states that "any 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...." While the first portion of section 186.22. subdivision (b)(1) is relatively straightforward, requiring that the crime be gang related in the sense of being for the benefit of, at the direction or, or in association with a gang, our Supreme Court recently has explained that the specific intent portion of the provision "applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense sought to be enhanced." (Albillar, supra, 51 Cal.4th at p. 66.)
The prosecution's theory was that the Sweeney Drive shooting was committed for the benefit of the Sex Cash gang, and that Adams and Gholston committed the shooting with that specific intent. A gang expert, Lance Colmer, testified that Gholston and Adams were associates of Sex Cash, and he opined that the Sweeney Drive shooting was committed for the benefit of the Sex Cash gang because it would show Sex Cash's dominance in the area of the high school, and there was a turf war at the time between Sex Cash and two rival gangs - the Edgemont Criminal Gang and Dorner Blocc.
Adams and Gholston contend that insufficient evidence supports a true finding on the gang enhancement because without additional evidence that the crime was gang related, Colmer's expert opinion, standing alone, was insufficient to support a such a finding. In support of this argument, they cite case law holding that "[a] gang expert's testimony alone is insufficient to find an offense gang related.... '[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.' " (People v. Ochoa (2009) 179 Cal.App.4th 650, 657, citations omitted; see also People v. Ramon (2009) 175 Cal.App.4th 843, 851.)
At the outset, we note that our Supreme Court's recent discussion in Albillar casts doubt on the proposition that an expert's opinion is insufficient to support a finding that a crime was for the benefit of a gang. According to Albillar, "[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of... a[] criminal street gang' within the meaning of section 186.22[, subdivision ](b)(1)." (Albillar, supra, 51 Cal.4th at p. 63.) We nevertheless will discuss the evidence in the record, aside from Colmer's expert opinion, that supports a finding that Adams and Gholston committed the Sweeney Drive shooting for the benefit of the Sex Cash gang, with the specific intent to assist the gang by engaging in that criminal conduct.
The jury heard evidence that the Sex Cash gang was active at Moreno Valley High School and in the surrounding area, including Sweeney Drive, which it claimed as part of its turf. Gholston and Adams were associates of Sex Cash. At the time, Sex Cash was competing for dominance with the Edgemont Criminal Gang and Dorner Blocc, which were allied together against Sex Cash.
Colmer also stated that the Cali Clowns dance group was aligned with one of Sex Cash's rivals - the Edgemont Criminal Gang. However, the uncontested evidence at trial was that the Cali Clowns group was not a gang, and at most would participate in some street fighting at dance contests it attended. Thus, although there was evidence that Young and Anthony M. were involved in the Cali Clowns group, we do not find that fact significant in determining whether substantial evidence supports a finding that the Sweeney Drive shooting was committed for the benefit of the Sex Cash gang.
Colmer explained that one way gangs increase their membership is for someone to be "jumped in, " which is a process in which the prospective member is beaten up and intimidated every day until he agrees to join the gang. The evidence at trial was that the Sex Cash gang was attempting to intimidate the victims of the Sweeney Drive shooting, namely Anthony M. and Lee, to join the Sex Cash gang, and that Sex Cash was also intimidating their friend, Eric Young, who lived at the Sweeney Drive house. All three boys were being harassed by Sex Cash at school and chased home. Lee told police that Adams and Gholston were trying to get him to join the Sex Cash gang, and Anthony M. similarly reported being harassed to join the gang. Further, Colmer testified that Young was associated with the Edgemont Criminal Gang and Dorner Blocc, and that Anthony M. was associated with Dorner Blocc. Pops reported that members of Sex Cash often congregated at a house across the street, and on the morning of the shooting, he heard a member of Sex Cash outside yelling "Sex Cash click, bring it on out, " which he thought was directed at his children. Colmer explained that (1) associates of a gang - such as Gholston and Adams - can commit crimes on behalf of a gang, (2) those crimes could be committed for the benefit of the gang without a gang member present, and (3) one way an associate can show allegiance to the gang or willingness to be a member is to commit crimes for the benefit of the gang.
Based on this evidence, a reasonable jury could have concluded that Gholston and Adams, as associates of the Sex Cash gang, committed the Sweeney Drive shooting as part of the gang's intimidation campaign against Anthony M., Lee and Eric Young, and also generally to show Sex Cash's dominance in the neighborhood at the time of a turf war between it and its two rival gangs, with whom two of the victims were associated. We therefore find substantial evidence to support the true finding on the gang enhancement for the counts arising out of the Sweeney Drive shooting.
E. The Trial Court Did Not Abuse Its Discretion by Denying Adam's Motion for a Mistrial Following the Gang Expert's Statement That Adams Was a Member of the Sex Cash Gang
In a hearing held pursuant to Evidence Code section 402, the People's gang expert, Colmer, testified that he did not have the documentation to show that Adams was a member of the Sex Cash gang at the time of the shootings in 2004, but that Adams was at least an associate of Sex Cash during that time. Colmer explained that Adams was validated as a member of Sex Cash for subsequent time periods.
At trial, Colmer was asked whether, as of 2004, he knew of any Sex Cash members who lived in a specific apartment building. In response, Colmer named several individuals, including Adams. Following an objection, the trial court held a sidebar conference, during which counsel for Adams moved for a mistrial. The trial court denied the motion and stated that it would instruct the jury to disregard Colmer's statement. The trial court instructed, "Ladies and gentlemen, I'm going to give you an instruction. You heard the witness testify that Jerry Adams was an active member of the Sex Cash gang residing in the Webster Apartments. I'm going to instruct you to disregard that testimony and not consider that piece of testimony for any purpose."
Adams contends that the trial court erred in denying his motion for a mistrial. According to Adams, despite the trial court's instruction to the jury, Colmer's statement that Adams was a member of Sex Cash as of 2004 was not the type of evidence that the jury would be able to disregard, and the testimony was highly prejudicial.
"We review the denial of a motion for mistrial under the deferential abuse of discretion standard.... 'A motion for mistrial is directed to the sound discretion of the trial court.' " (People v. Cox (2003) 30 Cal.4th 916, 953, citations omitted (Cox).)
" ' "[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction..." ' " (Cox, supra, 30 Cal.4th at p. 953) so that "a party's chances of receiving a fair trial have been irreparably damaged" (People v. Bolden (2002) 29 Cal.4th 515, 555). "A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith.... It is only in the exceptional case that 'the improper subject matter is of such a character that its effect... cannot be removed by the court's admonitions.' " (People v. Allen (1978) 77 Cal.App.3d 924, 934-935, citations omitted.) " ' "Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (Cox, at p. 953.)
Adams argues that Colmer's statement was "highly prejudicial" because "the jury, untrained in these matters, would necessarily have relied on the opinion of the experienced gang investigator in deciding whether [Adams] committed the crime for the benefit of the Sex Cash gang." As we will explain, in the context of Colmer's testimony as a whole, Colmer's identification of Adams as a member of the Sex Cash gang was not incurably prejudicial. (See People v. Wharton (1991) 53 Cal.3d 522, 566 [motion for mistrial on the ground of incurable prejudice from a witness's statement was properly denied when, among other things, the remainder of the witness's testimony dispelled the possibly prejudicial impact of an earlier statement].)
The statement that the trial court instructed the jury to disregard was not Colmer's only statement about Adams's relationship to the Sex Cash gang. Colmer testified at length on that topic after the admonition. Colmer explained that he did not have sufficient evidence to validate that Adams was a member of Sex Cash in 2004, but that based on the information available to him, Adams was "at least an associate" of Sex Cash at that time. Colmer stated that "a series of crimes [were] documented in police reports, which showed [Adams] committing crimes with other members of the gang, " qualifying Adams, at the least, as an associate of the gang. As set forth during Colmer's testimony, in 2001 Adams and a Sex Cash member battered another student at school. In 2002 Adams and a Sex Cash member were arrested for assault and stealing a car at school. Also in 2002, Adams and Sex Cash members were arrested for participating in a fist fight involving rival gang members. Finally, in 2004 Adams was at a party with Sex Cash members when members of another gang arrived and fired guns at Sex Cash members. Colmer also made it very clear that an associate of a gang is someone who is "actively assisting the gang in some way, " and he explained that associates of a gang can commit crimes for the benefit of the gang.
It is probable that in light of (1) the trial court's instruction to disregard Colmer's statement; and (2) Colmer's subsequent nuanced testimony about Adams's relationship with Sex Cash, the jury would focus on that nuanced testimony rather than on the earlier statement listing Adams among the Sex Cash members who lived in a certain apartment building. Moreover, even if the jury did focus on Colmer's identification of Adams as a "member" of Sex Cash, Adams's status as a member, rather than an associate, was not essential to a finding that Adams committed the Sweeney Drive shooting for the benefit of Sex Cash. As Colmer explained, Adams was "at least an associate" of Sex Cash and had participated in several criminal activities with Sex Cash members, and gang associates can commit crimes for the benefit of a gang, especially to show their allegiance or willingness to become a member. We therefore conclude that Colmer's statement was not unduly prejudicial, and the trial court therefore did not abuse its discretion in denying the motion for a mistrial.
F. Correction of the Abstract of Judgment Regarding Jefferson's Sentence
Jefferson points out, and the Attorney General agrees, that the abstract of judgment does not properly reflect the sentence imposed by the trial court. At sentencing, the trial court stated that Jefferson's sentence on count 5, including the gang enhancement imposed pursuant to section 186.22, subdivision (b), was to be served concurrently with the term imposed for count 4. However, the abstract of judgment does not show that the gang enhancement associated with count 5 is to be served concurrently with count 4.
"Courts may correct clerical errors at any time, and appellate courts... that have properly assumed jurisdiction of cases [will order] correction of abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore order that the abstract of judgment for Jefferson be amended to reflect that the gang enhancement imposed on count 5 pursuant to section 186.22, subdivision (b) run concurrently to the term for count 4.
DISPOSITION
The trial court is directed to modify Jefferson's abstract of judgment to state that the gang enhancement imposed under section 186.22, subdivision (b) for count 5, shall run concurrently with the term for count 4. The trial court shall forward to the Department of Corrections and Rehabilitation an amended abstract of judgment. In all other respects the judgments are affirmed.
WE CONCUR: HALLER, Acting P. J., McINTYRE, J.