Opinion
D057450
02-14-2012
THE PEOPLE, Plaintiff and Respondent, v. MARQUISE GRADY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD216913)
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed.
INTRODUCTION
A jury convicted Marquise Grady of first degree murder (Pen. Code, § 187, subd. (a)), three counts of willful, deliberate, premeditated attempted murder (§§ 187, subd. (a), 189, 664), conspiracy to commit murder (§ 182, subd. (a)(1)), and shooting at an occupied motor vehicle (§ 246). For each offense, the jury found true gang benefit and firearm enhancement allegations (§§186.22, subd. (b)(1), 12022.53, subds. (c), (d) & (e)(1)). The trial court sentenced him to an aggregate term of 115 years to life in prison.
Further statutory references are also to the Penal Code unless otherwise indicated.
Grady appeals, contending there is insufficient evidence to support his convictions. In addition, he contends the trial court erred by instructing the jury on the conspiracy and kill zone theories of attempted murder. He also contends the trial court erred by admitting testimony from a forensic video analyst and evidence a key witness feared retaliation. We conclude these contentions lack merit and affirm the judgment.
BACKGROUND
Prosecution Evidence
Three African-American men took a recently stolen red Honda to the parking lot of a liquor store. The liquor store was within the territory of the Lincoln Park Blood gang. The driver parked the car and the three men got out and disappeared behind a nearby wall. The driver was wearing jeans, a white shirt, a black hoodie, and light-colored gloves. The right front passenger was wearing jeans, a white-and-black checkered shirt or jacket, light-colored gloves, and a baseball cap. The third man was wearing a black hoodie with a white shirt hanging out below it.
A short time later, Martray Johnson drove a red Geo into the same parking lot and stopped two spaces over from the Honda. Johnson's girlfriend, Mercedes Davis, was sitting in the passenger seat of the Geo.
Less than a minute later, Demetrius Washington drove a black Ford into the store's parking lot. Inside the Ford were Arik Ibarra, Nicholas Westbrook, Joel Carmichael, and Wesley Dozier. Dozier sat in the front passenger seat, Carmichael sat in the left rear passenger seat, Westbrook sat in the middle rear passenger seat, and Ibarra sat in the right rear passenger seat. Some of the men were wearing colors associated with the Lincoln Park gang; however, only Carmichael was a Lincoln Park gang member.
Washington parked the Ford between the Honda and the Geo. Ibarra noticed the Geo and recognized both Johnson and Davis from school. Ibarra was surprised to see Johnson at the liquor store because Johnson was a Neighborhood Crip gang member and the liquor store was in a rival gang's territory.
Dozier got out of the car and went inside the liquor store. At about the same time, Johnson backed the Geo out of the parking lot and stopped it in the driveway. Ibarra got out of the Ford and looked over toward the Geo. Because of the circumstances, Ibarra thought Johnson likely had a gun with him and that "[s]omething's about to go down." Ibarra yelled for Dozier to hurry up and told his companions to watch the Geo as there might be a shooting. He also yelled at Davis, but she would not make eye contact with him, which increased his concern.
As the Geo started to drive away, Washington got out of the Ford and looked over at the Geo. Johnson made a Neighborhood Crip gang hand sign and then stopped the Geo right next to the wall that the three African-American men had disappeared behind a short time earlier.
Three African-American men came out from behind the wall and started shooting at the Ford, shattering the left rear passenger window. According to Ibarra, the man wearing the white-and-black checkered shirt or jacket carried a black revolver. Ibarra thought one of the men had a similar body type and build as Johnson's brother, Martrell. The three men got into the back seat of the Geo and Johnson drove off.
As Johnson and his brother share the same surname, we refer to his brother by his first name for clarity.
Ballistics evidence indicated the men fired at least five bullets from two different weapons. One of the bullets hit the left side of Carmichael's head, killing him. Another bullet wounded Ibarra's left thigh.
A police sergeant patrolling the area noticed the Geo parked in a red zone in front of the liquor store. He saw an African-American male run to and get into the back seat of the car. The sergeant pulled his patrol car behind the Geo and shined a spotlight through the Geo's rear window. He saw four or five young African-American men wearing dark clothing. At least two of the men were in the back seat. The car then sped away. Based on what he witnessed, the sergeant thought a robbery might have occurred at the liquor store. The sergeant followed the Geo and used his patrol car's overhead lights and sirens to signal the driver to stop.
The driver did not stop the Geo, however. It sped through neighborhoods, ran stop signs and stoplights, and drove onto the freeway. It got off the freeway at Market Street, ran another red light, abruptly turned, and struck a curb. Three African-American men wearing dark clothing and something dark, like a beanie or a ball cap on their heads, got out of the car and ran toward a pedestrian path alongside Market Street.
The Geo then started to drive away on the wrong side of the road. A short distance later, the driver got out of the Geo and ran away. A police officer in a police helicopter flying overhead saw the driver go into the back yard of a house and crawl into it through a window. The address of the house matched the address on the Geo's vehicle registration.
A short time later, in response to a police request, the occupants of the house came outside. Johnson was the first person out of the house. Police detectives later searched the house and found items indicating Johnson and Martrell lived there.
According to Davis, on the night of the incident, Johnson picked her up in the Geo. On the way to his house, someone called Johnson on his cell phone. After the call ended, Johnson told Davis he was going to pick someone up at a park and turned the car around. At Davis's request, they stopped at the liquor store, so she could get a drink. As she was about to get out of the car, a black car pulled up beside them. Dozier, Ibarra, and Washington, whom Davis recognized from school, were inside.
When she saw them, she asked Johnson to leave because she knew the three men did not like Johnson and she did not want them to jump Johnson. In addition, she was concerned because Johnson associated with the Neighborhood Crip gang, the three men associated with the Lincoln Park gang and they were in Lincoln Park territory.
After initially resisting her request, Johnson backed the car up. As they were leaving, Dozier, Ibarra, and Washington kept saying, "What's brackin?" both to greet her and to incite Johnson. Davis waved back at them. She did not see Johnson make a Neighborhood Crip gang hand sign.
When Davis heard gunshots, she ducked down. Then, three African-American men hopped in the Geo and Johnson drove away as a police car started following them.
Johnson drove down the street, made a right turn, ran some stop signs and stoplights, and then got on the freeway. He got off the freeway onto Market Street. The three men in the back of the car got out and ran. One of them ran past Davis. He wore a hat on his head and carried a silver handgun.
The man sitting in the middle rear passenger seat was wearing a black hoodie. Davis testified she did not know any of the men, but thought she heard someone refer to one of the men as "Mike." At a prior conditional examination, however, she testified Johnson's brother, Martrell, was the man sitting in the rear middle seat. In addition, she told a police detective after the incident that one of the men was Martrell and another was known to her as "Mike." She told the detective she did not know the third man, but said he wore a hat and a gray jacket and carried a gun. He sat in the back seat on the passenger side.
After the three men got out of the car, Johnson kept driving. When he got to F Street, he stopped the car, got out, and ran away. Davis then got out of the car and walked to a friend's house.
Around that time, Adrian Diaz arrived at his apartment from work. An African-American man approached him and asked to use his phone. Diaz went to get the phone and the man entered Diaz's apartment, where Diaz's wife and daughter were. Diaz let the man use the phone. The man called someone and asked to be picked up. He then asked Diaz to give him a ride, which Diaz agreed to do to get him out of the apartment.
The man asked to use the bathroom and Diaz told him to go outside. The man went outside and vomited by Diaz's door. Diaz could hear police sirens and saw a police helicopter overhead. Diaz asked the man if he was in any trouble with the police and he told Diaz the police were chasing him and three others. They all fled in different directions. Diaz took the man to an address three to four blocks away. At some point during the drive, the man told Diaz his name was "Allen."
When Diaz arrived back at his apartment, police officers were there. Diaz contacted an officer, told the officer about his encounter with Allen and pointed out the vomit. DNA obtained from the vomit matched the DNA of Michael Allen. DNA found on the interior collar of a white T-shirt or sweatshirt discarded at the complex also matched Allen's DNA. The parties further stipulated the phone number the man used Diaz's phone to call was registered to Allen's residence. In addition, the location where Diaz dropped the man off was near Allen's residence.
A police officer searched the pedestrian path the three men ran toward after getting out of the Geo. Near the entrance to the path, a police officer found a dark blue/black baseball cap with the letters SD on it. The hat was not weathered or covered with debris, and did not appear to have been on the path for a long time. DNA found on the inside front band of the cap matched Grady's DNA. DNA found on the inside label in the back of the cap contained a mixture of DNA from at least two people. Grady's DNA matched the DNA of the major contributor to the mixture. Gabriel Bidales was also a possible contributor to the mixture. The hat actually belonged to Bidales and had been in the back seat of his car, which had been carjacked by two African-American men the day before the shooting.
Grady was charged with, but acquitted of, the carjacking and related offenses.
Farther along the path, the officer found a black do-rag. It did not have any debris on it and appeared to have been tossed there recently. DNA found on the do-rag matched Grady's DNA.
In a residential area near the end of the path the officer found a crumpled, long-sleeve black T-shirt or sweatshirt hanging over the curb. The shirt had been turned inside out. DNA found on the interior collar of the sweatshirt contained a mixture of DNA from at least three people. Allen and Davis were included as possible contributors to the mixture. Johnson, Martrell, and Grady were excluded as possible contributors. DNA found on the exterior collar of the sweatshirt also contained a DNA mixture. Johnson, Martrell, and Allen were included as possible contributors to the mixture. Davis and Grady were excluded as possible contributors.
In a nearby side yard, the officer found two batting gloves. The interior cuff of the right-handed glove contained a DNA mixture from at least four people. Johnson was excluded as a possible contributor to the mixture. Davis and Martrell were included as possible contributors. Allen and Grady could not be excluded as possible contributors. The fingertips of the glove also contained a DNA mixture from at least four people. Johnson and Grady were excluded as possible contributors to the mixture. Allen and Martrell were included as possible contributors. Davis could not be excluded as a possible contributor.
DNA found on the interior cuff of the left-handed glove contained a DNA mixture from at least three people. Grady was excluded as a possible contributor to the mixture. Davis, Johnson, and Martrell were included as possible contributors. Allen could not be excluded as a possible contributor. The fingertips of the glove also contained a DNA mixture from at least four people. Johnson and Martrell were excluded as possible contributors to the mixture. Allen, Davis, and Grady could not be excluded as possible contributors.
The officer later noticed a long barrel revolver sitting on top of ice plant in the berm of the freeway between the location of the baseball cap and the do-rag. The gun was loaded and four of its bullets had been fired. Two of its bullets had not been fired, but it appeared someone had attempted to fire them. One of the fired bullets was the bullet that killed Carmichael. The gun's grips were missing and its serial number had been obliterated. A low level of a DNA mixture was found on the gun. Johnson, Grady, Martrell, Allen, and Davis were all excluded as possible contributors to the mixture; however, they might not have left any DNA if they had handled it while wearing gloves.
A police detective searched the Geo and found a cell phone in it. The cell phone had been stolen from another person several months earlier. It contained phone numbers for Martrell, Davis and Allen, but not for Grady. It also contained photos of Johnson, Martrell, and Allen, including one of Allen holding what appeared to be a revolver. The detective also found a broken blue plastic comb at the top of the front passenger seat, a black plastic comb on the front passenger floorboard between the seat and the door frame, and a black and gray baseball cap with a D-G logo on the rear passenger side floorboard.
A swab of the interior rear passenger side door handle, armrest, and window crank of the Geo contained a DNA mixture from at least four people. Johnson, Martrell, Davis, and Grady were included as possible contributors to the mixture. Allen could not be included or excluded as a contributor to the mixture.
Another swab of the same part of the Geo contained a DNA mixture from at least three people. Martrell was included as a possible contributor to the major DNA types in the mixture, and Johnson and Davis were included as possible contributors to the mixture. Grady was excluded as a contributor and Allen could not be included or excluded as a contributor.
DNA found on the broken blue comb matched Martrell's DNA. The black plastic comb contained a DNA mixture from at least two people. Grady was included as a possible contributor to the major DNA types in the mixture.
The inside headband of the black and gray baseball cap contained a low level of DNA mixture from at least three people. Allen was included and Davis could not be excluded as possible contributors to the DNA mixture. Johnson, Martrell, and Grady were excluded as contributors. The brim of the cap contained a DNA mixture from at least three people. Davis and Johnson were included as possible contributors to the mixture. Allen could not be included or excluded as a contributor. Grady and Martrell were excluded.
There was insufficient DNA evidence found in the Honda to draw any conclusions.
A forensic video analyst used a special computer system to examine the images taken by the liquor store's 16 surveillance cameras. From his examination, he developed a description of the three males who exited the stolen Honda. According to him, the driver of the Honda had dark skin. He wore light-colored shoes, baggy jeans, and a dark-colored hoodie with a white garment extending below it. The front passenger also had dark skin. He wore a checkered jacket, faded jeans, white shoes and a dark-colored baseball cap consistent with the one found on the pedestrian path. He also had something dark, about the size of a hand or fist, near the base of his head that the analyst could not identify. The rear passenger had dark skin, light shoes, and a dark waist-length jacket with a long white garment extending considerably below it. Each of the men wore white gloves.
The analyst testified the Geo pulled into the parking lot of the liquor store approximately five and a half minutes after the Honda. The Geo pulled out of the parking lot approximately 31 seconds later. It stopped by the wall and stayed there for approximately 30 seconds. Three men came out from behind the wall and got into the Geo. The men's clothing is consistent with the clothing of the three men who got out of the red Honda.
The analyst also reviewed police helicopter video footage and made still shots from it. The still shots showed two men get out of the Geo on the driver's side and one man get out of the Geo on the passenger's side. The third man followed the first two. The Geo continued in motion briefly, then stopped again. The driver and passenger doors opened and two people got out.
Cell phone records indicate Allen and Johnson called one another at least nine times in an approximate 20-minute period before the shooting. The last three phone calls occurred in an approximate 90-second period before the shooting, with the final phone call occurring immediately before the shooting. The last three calls utilized a cell phone tower in the vicinity of the liquor store.
The prosecution's gang expert testified that the Neighborhood Crip gang was a criminal street gang. Johnson, Martrell, Grady and Allen were all documented and active members of the gang. Grady had previously been seen with Johnson and Martrell.
According to the expert, the victims in this case fit the profile of rival Lincoln Park Blood gang members. In addition, he believed killing Carmichael and shooting at Ibarra and the other victims was consistent with a planned, coordinated gang-retaliation murder. He also believed the killing was conducted to benefit the Neighborhood Crip gang.
Defense Evidence
Grady's mother testified Grady lived with her. He did not own a car, and got around by walking, bicycling, taking the trolley, or riding a bus. He and his friends wore one another's clothes. He did not own a baseball cap, but she had seen him wear one occasionally.
A defense investigator testified Grady's house is a 13 minute walk from the pedestrian path.
DISCUSSION
I
Sufficiency of the Evidence
Grady contends we must reverse the judgment against him because there is insufficient evidence he was one of the shooters. More particularly, he argues there were no eyewitness identifications of him and none of the individuals captured in the liquor store's video were identifiable as him. In addition, there were no cell phone records linking him to the incident and the DNA evidence did not establish when he was in Johnson's car. The DNA evidence also did not establish whether or when he dropped the items on the pedestrian path.
"When a defendant challenges the sufficiency of the evidence, ' "[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citations.] 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.(People v. Clark (2011) 52 Cal.4th 856, 942-943.) " 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Here, the evidence showed three African-American men drove into the liquor store parking lot in a recently stolen Honda. They parked the Honda in the lot, got out, and disappeared behind a nearby wall. Approximately five minutes later, Johnson drove the Geo into the same parking lot. The victims arrived in the Ford approximately 30 seconds later. Johnson then backed out of the parking lot and onto the street. After pausing to make a gang hand sign, he drove forward and stopped the Geo near the wall behind which the three African-American had previously disappeared. Three African-American men came out from behind the wall, and fired at least two guns at the victims, injuring Ibarra and killing Carmichael. The three men got into the back seat of the Geo and Johnson sped away.
A police sergeant and police helicopter pursued the vehicle until it stopped near a pedestrian path. The three men in the back of the Geo got out of the passenger seat and ran toward the pedestrian path. A short time later, police officers found a baseball cap, a do-rag, a gun, gloves and a shirt discarded along the route the men fled. Although there was debris and trash along the route, each of these items appeared out of place and none bore indications of having been exposed to the elements for any length of time.
Ballistics evidence established the gun found along the path fired the bullet that killed Carmichael. DNA found on the baseball cap and do-rag matched Grady's DNA. The baseball cap is consistent with a baseball cap worn by one of the shooters. In addition, as Grady concedes, eyewitness, cell phone, fingerprint, and other evidence conclusively established Martrell and Allen were two of the shooters. Grady, Johnson, Martrell, and Allen were all members of the Neighborhood Crip gang and Grady had previously associated with Johnson and Martrell. Grady was a possible contributor to a DNA mixture found on a comb in the GEO and he could not be excluded as a contributor to a DNA mixture found in the right rear passenger side of the GEO. The shooter who wore the baseball cap had been sitting in this location before he got out of the GEO and fled along the pedestrian path.
A jury could reasonably infer from all of this evidence that Grady was one of the shooters, notwithstanding the lack of an eyewitness identification or a clear video image of him. Accordingly, we conclude there is sufficient evidence to support Grady's convictions.
II
Instructional Error
A
Conspiracy To Commit Attempted Murder Theory
1
The trial court instructed the jury on seven separate theories upon which the jury might find Grady guilty of attempted murder. These theories were:
1. Grady directly perpetrated attempted murder.
2. Grady aided and abetted attempted murder.
3. Grady conspired to commit attempted murder.
4. Grady was guilty of shooting at an occupied motor vehicle, during the commission of that crime a coparticipant committed attempted murder, and the attempted murder was the natural and probable consequence of the shooting at an occupied vehicle.
5. Grady was guilty of assault with a firearm, during the commission of that crime a coparticipant committed attempted murder, and the attempted murder was the natural and probable consequence of the assault with a firearm.
6. Grady aided and abetted either a shooting at an occupied motor vehicle or an assault with a firearm and the attempted murder was a natural and probable consequence of those crimes.
7. Grady conspired to commit a shooting at an occupied motor vehicle or assault with a firearm, a member of the conspiracy committed attempted murder in furtherance of the conspiracy, and the attempted murder was a natural and probable consequence of the common plan or design of the shooting at an occupied motor vehicle or assault with a firearm.
Grady contends we must reverse his attempted murder convictions because one of these theories, that he conspired to commit attempted murder, is invalid under People v. Iniguez (2002) 96 Cal.App.4th 75, 77 [reversing a conviction for conspiracy to commit attempted murder after concluding the mental states required for conspiracy and attempted murder are incompatible]. Assuming, without deciding, an instructional error occurred, we conclude it does not require reversal of Grady's attempted murder convictions.
2
"When the prosecution presents its case to the jury on alternate theories, one of which is legally correct and the other legally incorrect, 'we must reverse the conviction unless it is beyond a reasonable doubt that the error did not contribute to the jury's verdict. [Citations.] Such a reasonable doubt arises where, although the jury was instructed on alternate theories, there is no basis in the record for concluding that the verdict was based on a valid ground. [Citations.]' [Citation.] 'An instructional error presenting the jury with a legally invalid theory of guilt does not require reversal, however, if other parts of the verdict demonstrate that the jury necessarily found the defendant guilty on a proper theory. ' " (People v. Calderon (2005 129 Cal.App.4th 1301, 1306-1307, fn. omitted; accord, Hedgpeth v. Pulido (2008) 555 U.S. 57, 58; People v. Farley (2009) 46 Cal.4th 1053, 1116, fn. 22.)
Here, the jury's guilty verdicts on the conspiracy to commit murder and the shooting at an occupied vehicle charges, coupled with its findings that the attempted murders were willful, deliberate, and premeditated, its findings on the firearm enhancement allegations, and its findings on the gang benefit enhancement allegations, show the jury agreed on all of the elements necessary for convicting Grady of attempted murder under any of the aiding and abetting theories as well as under the theory he conspired to commit a shooting at an occupied vehicle that naturally and probably resulted in an attempted murder. We, therefore, conclude any error in instructing Grady on conspiracy to commit attempted murder was harmless beyond a reasonable doubt.
B
Kill Zone Theory
1
As part of its instructions on attempted murder, the trial court informed the jury of the "kill zone" theory of specific intent contained in CALCRIM No. 600. Specifically, the trial court informed the jury, "A person may intend to kill a specific victim or victims and, at the same time, intend to kill everyone in a particular zone of harm or kill zone. In order to convict the defendant of attempted murder of [Ibarra, Washington, and Westbrook], the People must prove the defendant not only intended to kill [Carmichael], but also intended to kill everybody within . . . the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill [Ibarra, Washington, and Westbrook] or intended to kill [Carmichael] by killing everybody in the kill zone, then you must find the defendant not guilty of the attempted murder of [Ibarra, Washington, and Westbrook]."
2
a
Grady contends the trial court's instruction on the kill zone theory was prejudicially misleading. We disagree.
The California Supreme Court first articulated the kill zone theory in People v. Bland (2002) 28 Cal.4th 313 (Bland). The Supreme Court started from the premise that "[t]o be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Id. at p. 328.)
The Supreme Court then explained, "the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the 'kill zone.' 'The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. For example, . . . consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the fact finder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone." (Bland, supra, 28 Cal.4th at pp. 329-330.)
While recognizing the Supreme Court articulation of the kill zone theory is controlling, Grady contends the trial court's kill zone instruction was misleading because it gave the jury an improper either/or choice that allowed the jury to convict Grady of attempted murder without finding he specifically intended to kill Ibarra, Westbrook, and Washington. Grady bases this argument on a version of the instruction quoted in his brief. Grady's version states in part, "In order to convict the defendant of the attempted murder of [Ibarra, Westbrook, and Washington], the People must prove that the defendant not only intended to kill [Carmichael], but also either intended to kill [Ibarra, Westbrook, and Washington], or intended to kill anyone within the kill zone." (Emphasis in original.) Grady asserts this latter language allowed the jury to "find specific intent as to Ibarra, Westbrook, and Washington, or intent to kill all the individuals in the area, but if it chose the latter, it was not required to find [Ibarra, Westbrook, and Washington] were inside the 'kill zone.' " Thus, according to Grady, the "language improperly and unconstitutionally substitutes an inference of intent for the actual intent element."
In this case, we fathom no circumstances upon which the jury could find Grady guilty of attempted murder under a 'kill zone' theory and not find the victims were all within the kill zone, as one of the victims was inside the car Grady and his accomplices shot at and the other two were standing right next to it. More importantly, however, we have quoted the relevant portion of the trial court's kill zone instruction above. The either/or language Grady complains of is not present in the instruction. Rather, the trial court's instruction clearly informed the jury that, "[i]n order to convict the defendant of the attempted murder of [Ibarra, Washington, and Westbrook], the People must prove that the defendant not only intended to kill [Carmichael], but also intended to kill everybody within . . . the kill zone." This instruction is wholly consistent with the Supreme Court's guidance in Bland. Accordingly, Grady has not established the trial court's instruction was misleading, much less prejudicially so.
b
Grady additionally contends the trial court's instruction was biased as it improperly incorporated and endorsed argumentative terms, such as "zone of harm" and "kill zone." This same issue was addressed by the appellate court in People v. Campos (2007) 156 Cal.App.4th 1228 (Campos). The Campos court rejected the argument reasoning, "[a]n instruction is argumentative when it recites facts drawn from the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law. [Citation.] 'A jury instruction is [also] argumentative when it is " 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.' " ' (Id. at p. 1244)
"CALCRIM No. 600 merely employs a term, 'kill zone,' which was coined by our Supreme Court in Bland and referred to in later California Supreme Court cases. [Citation.] It does not invite inferences favorable to either party and does not integrate facts of this case as an argument to the jury. Other disparaging terms, including 'flight' [citation], 'suppress[ion] of evidence' [citation] and 'consciousness of guilt' [citation] have been used in approved, longstanding [jury] instructions. We see nothing argumentative in this instruction." (Campos, supra, 156 Cal.App.4th at p. 1244.) We agree with the Campos court's conclusion.
III
Admission of Forensic Video Analyst's Testimony
Grady contends the trial court prejudicially erred and deprived him of his constitutional right to a fair trial by admitting the forensic video analyst's testimony because the testimony involved matters that were not beyond the common experience of the jurors. "We review the trial court's ruling on the admissibility of expert testimony for abuse of discretion." (People v. Watson (2008) 43 Cal.4th 652, 692; People v. Dejourney (2011) 192 Cal.App.4th 1091, 1110.) We discern no abuse of discretion in this case.
"[A]lthough expert testimony is generally inadmissible on topics 'so common' that jurors of ordinary knowledge and education could reach a conclusion as intelligently as the expert, an expert may testify on a subject about which jurors are not completely ignorant. [Citations.] In determining the admissibility of expert testimony, 'the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury.' " (People v. Lindberg (2008) 45 Cal.4th 1, 45; accord, People v. Prince (2007) 40 Cal.4th 1179, 1222.)
Here, the forensic video analyst provided expert testimony in several key areas. He explained how the liquor store's and police helicopter's video systems captured images, and how he separated and sequenced the liquor store's video for easier viewing. He also explained how light and reflections influence the recording and the appearance of the people, objects, and colors in the images. He then made still shots of some of the images, highlighted certain light and dark areas, and related to the jury what he believed those light and dark areas represented. Grady disputes only the propriety of this latter testimony on appeal.
We note some of the expert's conclusions, such as that the third person who got out of the stolen Honda was wearing a black and white checkered shirt or jacket, were equally apparent on both the video and the still shots. Others of his conclusions, such as that all three men in the stolen Honda were wearing gloves and the third person who exited the car was wearing a cap consistent with the one found along the pedestrian path, were more apparent on the still shots, but also apparent on the video. Still others of his conclusions, such as that the three men who got out of the Honda and went behind the wall were wearing clothing consistent with the clothing worn by the three men who got into the backseat of the Geo, were more apparent on the video than on the still shots. This latter conclusion was also readily inferable from the sequence and timing of events. Consequently, as both parties point out in their briefs, the jury could have theoretically gleaned the same information imparted by the expert from merely viewing the video.
This does not mean, however, the trial court unreasonably determined the expert's testimony would assist the jury. As the trial court noted when it decided to allow the expert to testify, such technical matters as the influence of light, reflection, camera angles, and recording errors on video images are well outside a jury's common experience. The expert's testimony in these areas undoubtedly helped the jury to identify what portions of the video evidence required closer examination, and to interpret some of the less obvious information conveyed by the video evidence. We, therefore, conclude the trial court did not abuse its discretion in admitting the expert's testimony. (See Stevenson v. State (Tex. 2010) 304 S.W.3d 603, 623 (Stevenson) [forensic video analyst's testimony admissible to help clarify the images obtained from a poor-quality, black-and-white video]; see also United States v. Sellers (4th Cir. 1977) 566 F.2d 884, 886 [expert's testimony admissible to explain the effects of light, shadow, reflections, distortion from perspective, and other technical factors on surveillance photograph].)
The Stevenson case involved testimony from the same forensic video analyst who testified in this case. (Stevenson, supra, 304 S.W.3d at p. 609.)
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Even if the trial court had erred in admitting the expert's testimony, we agree with the People that the error was harmless. As we have noted ante, the expert's specific conclusions about the information imparted in the video were either readily apparent or readily verifiable from viewing the video. We, therefore, conclude it is not reasonably probable the verdict would have been more favorable to Grady absent the claimed error. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Hernandez (1977) 70 Cal.App.3d 271, 281 [error in admitting expert testimony is harmless if the testimony adds nothing to what is otherwise apparent to the jury].)
IV
Admission of Evidence of Witness's Fear of Retaliation
A
Near the conclusion of her direct examination testimony, Davis admitted she was worried and did not want to testify because "things happen" to people who testify against gang members. She acknowledged sometimes people who testify and their families get threatened with physical violence and she did not want anyone "messing with" her family. At first, she denied being afraid to testify. She also denied her worries affected her testimony. She said she simply could not remember many of the details of the incident. She later admitted she was "a little bit" scared of being at trial. In addition, she admitted that, after the incident, she and her mom decided it would be best if she left the state and stayed with relatives. She also admitted she did not want to return to the state to testify. She only returned because she was told if she did not obey the witness subpoena, she would be brought back to the state in custody to testify.
Before Davis left the state, and after she had talked with a police detective about the shooting, someone slashed the tires and set a fire on the windshield of her mother's car. She factored this vandalism into her decision to leave the state.
The trial court allowed the testimony about the vandalism to Davis's mother's car subject to a limited purpose instruction. The instruction informed the jury the vandalism evidence was "admitted for a limited purpose of how this evidence may affect the state of mind of [Davis] when she testified in court. You may consider that evidence only for the limited purpose and for no other purpose. As no evidence has been provided linking [Grady], to these incidents, you are not to consider this evidence as related to [Grady]."
B
Grady contends the trial court erred in admitting the vandalism evidence because Grady was not linked to the vandalism and there was no evidence Davis's equivocal testimony was based upon fear of retaliation rather than an honest lack of memory. We conclude this contention lacks merit.
" '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 [his or] her credibility and is well within the discretion of the trial court. [Citations.]' [Citations.] '[T]here is no requirement to show threats against the witness were made by the defendant personally or the witness's fear of retaliation is "directly linked" to the defendant.' " (People v. McKinnon (2011) 52 Cal.4th 610, 668.)
Moreover, in this case, there is no dispute Davis was a reluctant and uncooperative witness. She left the state after the shooting and returned to appear for trial only upon threat of being taken into custody as a material witness. At trial, as the People painstakingly describe in their brief, her testimony was marked by hesitancy, equivocation, inconsistency, and incredible memory loss. For Grady to suggest on appeal the prosecutor did not have a sufficient basis to inquire into whether and why she was afraid to testifying borders on the absurd.
Further, even if the trial court had erred in allowing the vandalism evidence, the error was harmless. The trial court specifically instructed the jury it could only consider the vandalism evidence in evaluating Davis's state of mind when she testified and could not consider it against Grady. Grady's counsel did not object to or seek modification of this instruction. In addition, "[w]e 'credit jurors with intelligence and common sense' [citation] and presume they generally understand and follow instructions." (People v. McKinnon, supra, 52 Cal.4th at p. 670.) We, therefore, conclude it is not reasonably probable the verdict would have been more favorable to Grady absent the claimed error. (People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
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McCONNELL, P. J.
WE CONCUR: ____________
MCINTYRE, J.
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O'ROURKE, J.