Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeals from judgments of the Superior Court of Orange County, Super. Ct. No. 05CF0277, William R. Froeberg, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Raymond Dwight Graham.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Dashawn Graham.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Wyron Jerome Oard.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Lee Thomas.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
In a joint trial, a jury found defendants Raymond Dwight Graham (R. Graham), Dashawn Graham (D. Graham), Wyron Jerome Oard (Oard), and Johnny Lee Thomas (Thomas) guilty of three counts of home invasion robbery, two counts of residential burglary, one count of unlawfully taking a vehicle, and one count each of street terrorism. The jury also found Thomas guilty of forcible oral copulation and forcible rape. On the robbery, burglary, and vehicle taking counts, the jury returned true findings on enhancement allegations for criminal street gangs and vicarious use of a firearm in gang crimes. The trial court imposed 47-years-to-life terms on Oard, R. Graham, and D. Graham. Thomas received the same sentence, plus an additional life term with a 15-year minimum sentence for the sexual assault.
On appeal, defendants individually assert numerous claims of error, involving jury selection, admission of evidence, procedural and substantive defects concerning the street terrorism and criminal street gang enhancements, and sentencing. While we discuss the merits of each argument in reference to the defendant asserting it, we recognize that, under California Rules of Court, rule 8.200(a)(5), each defendant joins in the arguments raised by other defendants to the extent it applies to him.
We affirm defendants’ convictions on all of the charges, plus the true findings on the related allegations. However, since the Attorney General concedes some of defendants’ sentencing error claims have merit, we remand the matter for resentencing.
FACTS AND PROCEDURAL BACKGROUND
Armed with a handgun, defendants entered the home of Ms. S. in the early morning hours. Three of them ransacked the home, taking Ms. S.’s purse, a television, video cassette recorder, jewelry, and cash. Thomas ordered Ms. S. to orally copulate him, then forced her to undress, and raped her. Ms. S. later discovered her van was missing. Shortly thereafter, defendants broke into the home of Mr. and Mrs. Shih. They took cash, jewelry, cell phones, video game equipment, and a ceremonial sword.
In support of its case, the prosecution presented the testimony and prior inconsistent statements of James Johnson, Thomas’s cousin and an acquaintance of all four defendants, plus Felicia Peterson, Oard’s cousin. Johnson testified he went to a party with all four defendants earlier on the night of the break-ins. While there, Oard showed him a gun. Johnson left the party with the four defendants and they dropped him off at his home. During the ride home, Johnson heard the defendants “talk of . . . robbery, and . . . thought that they were going to jack someone[.]” The next day, Johnson visited Oard’s residence. All four defendants were present. He admitted “they said . . . they robbed somebody . . . .” The defendants showed Johnson things they had taken, including jewelry, money, and a camera. Oard also showed Johnson a sword. Either D. Graham or R. Graham said that Thomas raped an elderly woman and that defendants claimed they also took her vehicle.
According to Peterson, Oard returned home around 4:00 a.m. on the morning after the break-ins. Later that day, Oard said he and the other defendants had broken into two homes and stolen property. She saw Oard with electronic equipment, jewelry, and approximately $400 in cash.
The police discovered R. Graham’s fingerprint on a closet door in a bedroom of Ms. S.’s home, and found her vehicle in Compton with items taken from both homes inside of it. A search of Oard’s Compton residence four days later resulted in the discovery of items taken from the Shih’s home, including the ceremonial sword.
After their arrests, each defendant was advised of and waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] and spoke to the police. R. Graham and D. Graham admitted being members of a criminal street gang named the Mona Park Crips. Thomas admitted belonging to another criminal street gang named the East Coast Q-102 Crips. Oard belongs to a criminal street gang named the Rollin’ Sixties Neighborhood Crips. During the interrogations, each defendant admitted committing the break-ins.
DISCUSSION
1. Prosecution’s Peremptory Challenges
Oard and R. Graham contend the trial court erred by denying two motions attacking the prosecutor’s exercise of peremptory challenges during impaneling of the jury. They claim the prosecutor employed the peremptory challenges to remove persons of color from the jury.
a. Background
The first group of prospective jurors questioned during voir dire included two Hispanic jurors, Y.T. and A.V. Y.T. testified she had previously served on a jury that failed to reach a verdict, explaining “[t]hey were trying to persuade us to go the other way” but “I stuck to my guns . . . .” She also admitted her nephew was incarcerated in Los Angeles for drugs. A.V. works as a buyer for the county’s Social Services Agency.
When the first round of questioning ended, the prosecutor exercised peremptories against three Caucasian prospective jurors and accepted the panel. Defendants exercised another joint peremptory, the prosecutor then excused Y.T.
P.W., an African American, and M.C., an Hispanic, were then added to the panel. P.W. described herself as an aerospace industry retiree holding a masters degree in business administration. Her husband serves as the pastor of a church in which she is also involved. Her brother is an attorney handling probate matters. She served on juries in two prior cases, one civil and one criminal, with each jury reaching a verdict. Her grandson is in prison and she has visited him, but she did not know why he is incarcerated. P.W. testified that on one occasion she wore a red blouse during a visit to Los Angeles. A woman told her, “you better not be in this area . . . because there are Crips in the area. . . .”
M.C. works as a vice-president of a manufacturing company. He has an uncle, now a federal judge, who worked as a public defender, a cousin currently employed as a public defender, and three other relatives in law enforcement. He holds a bachelor’s degree in criminal justice. M.C. had planned on attending law school, but after watching his uncle try a case, he decided not to do so.
At the completion of the second round of questioning, the prosecutor struck one Caucasian prospective juror and then accepted the panel for the second time. When defendants excused additional prospective jurors, the prosecutor exercised three more peremptories, excusing two Caucasian panel members and A.V.
The prospective jurors added to the panel before the third round of questioning included two more Hispanic jurors, G.R. and L.C. G.R. testified she was currently unemployed, but previously worked for a mortgage company. She had no previous jury experience. G.R. was the only prospective juror who had never heard of the Crips street gang. L.C. testified she works in Target’s personnel department and had not previously served on a jury.
When the third round of questioning ended, the prosecutor excused M.C. The defense exercised a joint peremptory and then the prosecutor excused P.W.
At that point, D. Graham’s attorney declared, “we would be making a Wheeler [People v. Wheeler (1978) 22 Cal.3d 258] motion at this time.” Counsel noted P.W. is “the only African American that we have had on the panel thus far” and, “[g]iven her answers,” argued no basis existed to “excus[e] her other than her heritage . . . .” The court found “a prima facie case ha[d] been stated” and asked the prosecutor to explain why she struck P.W. The prosecutor cited P.W.’s testimony that she “has visited her [grand]son in prison,” and said “I am uncomfortable with anyone who has been on the inside of a prison.” The prosecutor also mentioned P.W.’s testimony her “brother . . . is an attorney, and her husband, . . . a pastor. I asked her about her involvement in the church, and she says she is very involved . . ., and it has been my experience that people who are associated deeply in a church are too forgiving of criminal conduct.” The court denied the motion. While it agreed the prosecutor’s reasons for excusing P.W. were not “very good,” if found she had nonetheless “stated sufficient race neutral reasons.”
Thereafter, the prosecutor excused another Caucasian prospective juror and accepted the panel a third and a fourth time.
Voir dire continued into a fourth and a fifth round. At the end of the fourth round, the prosecutor excused four more prospective jurors, including two Caucasians, plus G.R., and L.C. Before the fifth round of questioning began, the clerk placed J.C., another Hispanic juror, in the box. J.C. testified that she “work[s] in retail.” After the fifth round of questioning, the prosecutor initially accepted the panel. When the defense exercised their final joint peremptory, the prosecutor excused J.C.
At this point, Oard moved to strike the jury panel, arguing “the prosecutor seems to be systematically excusing Hispanics as well as Blacks on the jury.” After reviewing the peremptories exercised by the parties, the court asked the prosecutor to explain her reasons for excusing six Hispanic prospective jurors.
As for J.C., the prosecutor cited her employment in retail and claimed that in her “experience,” persons in that line of work “[h]ave not been jurors that I have related to.” She also cited J.C.’s “very quick answers” to questions and “the vibration that I got from her body language . . . .”
Concerning L.C., the prosecutor noted that “in talking with other people,” L.C. “wouldn’t return eye contact.” The prosecutor said she “had attempted to make further eye contact with [L.C.] in . . . discussions” with the panel, citing, in particular, a hypothetical fact pattern she presented involving a Target store, but noticed L.C. “didn’t look at me at all during my discussion of that . . . example.”
Next, the court inquired about the striking of Y.T. The prosecutor cited her prior experience on a hung jury and claimed, “I [have] found that people who aren’t able to deliberate to verdict are people that are troublesome.
As for A.V., the prosecutor noted she works for the Orange County Social Services Agency and claimed “[m]y experience has been that individuals . . . associated with social services, or social workers, tend to view the world a little bit differently, and are sometimes more forgiving due to their occupation.”
Concerning M.C., the prosecutor said she initially “thought . . . he would . . . be a good juror based on his background,” but became concerned by his “facial expression[s]” to “almost every comment any one of us made, including the defense or . . . the court . . . . [He] either winced or raised his eyebrows. He had an immediate reaction to almost everything somebody said . . . .”
Finally, the prosecutor said she “found” G.R. to be “either . . . insincere or just not credible” because, “while unemployed, and ostensibly able to know what’s going on in the world,” G.R. claimed to “ha[ve] never heard of the Crips, when there has been so much press . . . dealing with the Tookie Williams matter . . . .”
After listening to argument, conducting some legal research, plus making its own independent review of the prosecutor’s exercise of peremptory challenges to that point, the court denied the motion. It found “it does appear that each person involved in . . . social services . . ., and each person involved in a retail business has been excluded. [¶] The reasons given by the People seem to comport with reasons that the courts have found to be acceptable, that is, body language, and although I will say personally that I don’t feel the explanations are particularly persuasive or plausible, I cannot say, based on my analysis of the . . . peremptories, that they have been inherently discriminatory. And at this point I am not willing to say that I find there has been purposeful discrimination.”
b. Analysis
An advocate’s use of peremptory challenges to strike prospective jurors because they are members of a cognizable group, such as a particular race or ethnic background, violates both the United States Constitution’s Equal Protection Clause and the California Constitution’s right to be tried by a jury drawn from a representative cross-section of the community. (Batson v. Kentucky (1986) 476 U.S. 79, 97 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Lenix (2008) 44 Cal.4th 602, 612.)
When a defendant challenges the prosecution’s use of peremptory strikes on the ground they involve group bias, the trial court employs a three-step procedure to decide the motion. First, the defendant must show “‘“the totality of the relevant facts gives rise to an inference”’ that the prosecutor exercised one or more peremptories for a ‘“discriminatory purpose.”’” (People v. Lewis (2008) 43 Cal.4th 415, 469, quoting Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410, 162 L.Ed.2d 129].) If the defendant satisfies this burden, the prosecutor must “‘“offer[] permissible race-neutral justifications for the strikes. [Citations.]”’” (People v. Lewis, supra, 43 Cal.4th at p. 469.) Finally, “‘“[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citations.]” (Ibid.)
Here, the court either expressly or impliedly found defendants satisfactorily made a prima facie showing on both motions. (People v. Hayes (1990) 52 Cal.3d 577, 605 [“By requesting the prosecutor to explain his reasons for these challenges, the trial court impliedly found that defendant had established a prima facie case”].) Nor is there any serious claim the prosecution failed to present clear and reasonably specific group-neutral reasons for striking each of the prospective jurors cited in defendants’ motion. (Purkett v. Elem (1995) 514 U.S. 765, 767-768 [115 S.Ct. 1769, 131 L.Ed.2d 834] [since this “‘step of the inquiry’” focuses on “‘the facial validity of the prosecutor’s explanation,’” not whether it “is persuasive, or even plausible,” a proffered reason “‘will be deemed race neutral’” “‘unless a discriminatory intent is inherent in the prosecutor’s explanation’”]; see also People v. Reynoso (2003) 31 Cal.4th 903, 916-917.)
But defendants claim the evidence fails to support the trial court’s rulings on the third step. “At the third stage of the . . . 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 who employs him or her. [Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
When, as here, an adequate record of the jury voir dire exists a court should employ “a comparison of panelists’ responses.” (People v. Lenix, supra, 44 Cal.4th at p. 621.) “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step. [Citation.]” (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [125 S.Ct. 2317, 162 L.Ed.2d 196].)
“Review of a . . . denial of [the] motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review [the] 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. [Citation.]’ [Citation.]” (People v. Lenix, supra, 44 Cal.4th at pp. 613-614, fn. omitted.)
The record contains sufficient evidence supporting the trial court’s rulings on both motions. The prosecutor accepted the panel once with P.W., the African-American prospective juror, as a member, and several times when one or more of the named Hispanic jurors remained. As noted in People v. Reynoso, supra, 31 Cal.4th 903, “Although not a conclusive factor, ‘the passing of certain jurors may be an indication of the prosecutor’s good faith in exercising his [or her] peremptories, and may be an appropriate factor for the trial judge to consider in ruling on a Wheeler objection . . . .’ [Citation.]” (Id. at p. 926; see also People v. Lenix, supra, 44 Cal.4th at p. 629 [“The prosecutor’s acceptance of the panel containing a Black juror strongly suggests that race was not a motive in his challenge”].)
The record reflects the trial court conducted a comparative juror analysis of the prosecutor’s use of peremptories in deciding the second motion, but not the first. However, the California Supreme Court has now recognized “evidence of comparative juror analysis must be considered . . . even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons.” (People v. Lenix, supra, 44 Cal.4th at p. 622.)
Employing a comparative juror analysis of the prosecutor’s decision to strike P.W., we conclude the record supports the trial court’s ruling on the first motion. The prosecutor cited the fact P.W.’s grandson was in prison and that she had visited him. Before striking P.W., the prosecutor struck two other prospective jurors who admitted having close relatives currently incarcerated; Y.T. (nephew) and a Caucasian juror, S.M. (daughter). Oard cites the fact the prosecutor did not excuse one juror who admitted suffering a drunk driving conviction “about 20 years ago,” and another juror who stated his “ex-roommate,” who “now is my wife’s cousin, . . . goes back and forth to prison.” The first juror’s conviction was very old and nothing indicates the juror actually served time in prison for the crime. The second juror’s relationship with the incarcerated family member is not as close as the relationships between the prospective panel members and incarcerated family members struck by the prosecutor. On balance, it does not appear the latter two jurors were “similarly situated” to P.W., Y.T., and S.M. (People v. Lenix, supra, 44 Cal.4th at p. 630.)
P.W. also testified her brother was an attorney. Again, the record reflects the prosecutor struck three other jurors, M.C., and two Caucasian jurors, M.M. and J.L., who also admitted they either had relatives who were attorneys or were close friends with attorneys. Of the jurors ultimately chosen to decide the case, only Juror No. 1, born on the Island of Fiji, testified he knew an attorney. That lawyer was not a relative or friend, but someone who had once represented his son.
Oard argues P.W.’s involvement in her husband’s church “has nothing to do with regard to whether she could be fair.” But “[t]he proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]” (People v. Reynoso, supra, 31 Cal.4th p. 924.) Consequently, “the proper function of the reviewing court in a case such as this is not to objectively validate or invalidate such a broadly stated premise” but rather “to determine whether the trial court’s conclusion—that the prosecutor’s subjective race-neutral reasons for exercising the peremptory challenges at issue here were sincere, and that the defendants failed to sustain their burden of showing ‘from all the circumstances of the case’ [citation] a strong likelihood that the peremptory challenges in question were exercised on improper grounds of group bias—is supported by the record when considered under the applicable deferential standard of review.” (Ibid.)
Defendants’ attack on the trial court’s denial of the second motion fare no better. This time the trial judge employed a comparative juror analysis in concluding the prosecutor properly exercised her peremptory challenges to the named Hispanic prospective jurors. Two of them, A.V. (social work) and J.C. (retail) were struck on the basis of their occupations. This is a permissible reason for exercising a peremptory challenge. “If a prosecutor can lawfully peremptorily excuse a potential juror based on a hunch or suspicion, or because he does not like the potential juror’s hairstyle, or because he observed the potential juror glare at him, or smile at the defendant or defense counsel, then surely he can challenge a potential juror whose occupation, in the prosecutor’s subjective estimation, would not render him or her the best type of juror to sit on the case for which the jury is being selected.” (People v. Reynoso, supra, 31 Cal.4th at pp. 924-925, fn. omitted.) The record reflects the prosecutor’s reasons were sincerely held because she also struck two Caucasian jurors, one who worked as a social worker and a second working in retail.
The prosecutor struck L.C. and M.C., citing their avoidance of eye contact or facial expressions. A sincerely held “demeanor-based justification” for peremptorily challenging a prospective juror is permissible. (People v. Reynoso, supra, 31 Cal.4th at p. 926.) “A prospective juror may be excused based upon facial expressions[ or] gestures . . . .” (People v. Lenix, supra, 44 Cal.4th at p. 613.) “It is well settled that ‘[p]eremptory challenges based on counsel’s personal observations are not improper.’ [Citation.] . . . ‘[N]othing . . . disallows reliance on the prospective jurors’ body language or manner of answering questions as a basis for rebutting a prima facie case’ of exclusion for group bias. [Citation.]” (People v. Reynoso, supra, 31 Cal.4th at p. 917.) Because “the trial court was in the best position to observe the prospective jurors’ demeanor and the manner in which the prosecutor exercised [her] peremptory challenges, [its] implied finding, that the prosecutor’s reasons . . . were sincere and genuine, is entitled to ‘great deference’ on appeal. [Citations.]” (Id. at p. 926.)
The prosecutor struck Y.T. because she had previously served on a jury that failed to reach a verdict in a criminal case. Prior service on a hung jury constitutes a permissible basis for peremptorily challenging a prospective juror. (People v. Turner (1994) 8 Cal.4th 137, 170, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Finally, the prosecutor struck G.R. because she claimed to have never heard of the Crips, a statement the prosecutor found lacking credibility. Absence of life experience (People v. Perez (1994) 29 Cal.App.4th 1313, 1328) or a “‘mistrust of a juror’s objectivity’” (People v. Reynoso, supra, 31 Cal.4th at p. 917) are also proper race-neutral grounds for a peremptory challenge.
Since, as in People v. Lewis, supra, 43 Cal.4th 415, “[t]he trial court denied the motions only after observing the relevant voir dire and listening to the prosecutor’s reasons supporting each strike and to any defense argument supporting the motions,” plus the fact “the record suggests that the trial court” understood “its duty to evaluate the credibility of the prosecutor’s reasons [and] that it . . . fulfill[ed] that duty” (id. at p. 471), defendants have failed to establish the trial court erred by denying their motions challenging the prosecutor’s exercise of peremptory challenges during jury voir dire.
2. Evidentiary Rulings
a. Background
Over objections and a motion to sever the trials, the court allowed the prosecution to introduce redacted summaries of each defendant’s postarrest statements concerning the break-ins and their gang involvement, plus prearrest statements one or more of the defendants made to James Johnson and Felicia Peterson about the crimes.
b. Use of Redacted Versions of Defendants’ Postarrest Statements
Before trial, the prosecution sought permission to introduce redacted summaries of each defendant’s postarrest statements presented through the testimony of police officers that participated in the interrogations. Citing the restrictions imposed by the Aranda/Bruton rule (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476]), defendants claimed the prosecutor’s proposed question and answer procedure would unduly restrict their right to cross-examine the officers, violate Evidence Code section 356, and provide a misleading impression of the defendant’s interrogations.
The trial court granted the prosecution’s request, but acknowledged that it would “give counsel an opportunity to go through what is being offered and see what counsel wish to produce under [Evidence Code section] 356 and any other objections you may have in terms of whether or not the proffered evidence is misconstrued[ or] taken out of context . . . .”
Before presentation of this evidence, the trial court instructed the jury “[a]ny statements that allegedly were made by an individual defendant in this case during a police interview can only be used as to that particular defendant.” The court repeated this instruction at the end of the case.
Defendants’ first argument is that, because their codefendants did not testify, the procedure denied them the constitutional right to cross-examine witnesses against them. This contention lacks merit.
To protect a criminal defendant’s constitutional right to confrontation, “[t]he Aranda/Bruton rule bars admission in a joint trial of one defendant’s [otherwise inadmissible] out-of-court confession that powerfully and facially incriminates a codefendant, even if the court instructs the jury to consider the confession only against the declarant. [Citations.] The rule recognizes the jury may struggle to obey such a limiting instruction when both defendants are in the courtroom, tried for the same crime, and an unfair danger exists the jury will improperly consider the hearsay confession against the non-declarant codefendant. [Citation.] To avoid this danger, the court must either sever the trials or redact the statement to avoid references to the codefendant. [Citation.]” (People v. Smith (2005) 135 Cal.App.4th 914, 921-922.)
Redaction is permissible when a “confession [is] not incriminating on its face, and [becomes] so only when linked with evidence introduced later at trial . . . . [¶] Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.” (Richardson v. Marsh (1987) 481 U.S. 200, 208, fn. omitted [107 S.Ct. 1702. 95 L.Ed.2d 176]; see also People v. Lewis, supra, 43 Cal.4th at p. 454.) Thus, “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Richardson v. Marsh, supra, 481 U.S. at p. 211, fn. omitted.)
As noted, the trial court instructed the jury that each statement could only be used against the defendant who purportedly made it. The opening briefs suggest the statements of one defendant implicated the others in some way, but none of them cite to any portion of any statement to support this claim. The mere fact that other properly admitted evidence reflecting defendants were acquaintances and had been together on the night of the break-ins does not render the redacted statements inadmissible under the Aranda/Bruton rule.
Defendants argue the manner in which the statements were introduced precluded effective cross-examination. Not so. The trial court acknowledged each one could cross-examine the interrogating officer about what else he said or did. Defendants’ real complaint is that they could not cross-examine in a manner that would allow them to elicit “other parts” of a statement “where blame is laid on other . . . codefendants.” But as the trial judge noted that objection would be valid only if a codefendant’s statements could be introduced in “a severed trial . . . .” Clearly, testimonial statements by a codefendant who has not been cross-examined and is unavailable as a trial witness could not be introduced even if that defendant was tried separately. (Crawford v. Washington (2004) 541 U.S. 36, 68-69 [124 S.Ct. 1354, 158 L.Ed.2d 177].)
Defendants rely on People v. Archer (2000) 82 Cal.App.4th 1380 where the defendant and Baserga were jointly tried for murder of Pate. The prosecution introduced Baserga’s postarrest confession. Baserga told the police “‘[t]he plan was to attack . . . Pate by surprise as he walked into the back yard,’” and “Baserga . . . knew that bringing [the victim] to that address ‘was gonna set him up.’” (Id. at p. 1388.) Baserga also told the police that, upon reaching the place where the murder was to occur, he “opened the gate and walked into the patio area; ‘Pate was behind me, and then Pate was stabbed.’ Pate ‘tried to escape, but I didn’t know what to do, so I held him.’ Baserga stated that he stabbed Pate in the arm, ‘maybe twice . . . .’ Baserga believed . . . Pate was stabbed more than 10 times, ‘mostly in the chest or in the stomach.’” (Ibid.)
The Court of Appeal reversed the defendant’s conviction, finding Baserga’s statement inadmissible. “While appellant’s name is not mentioned in the statement, the existence of another participant is obvious from the statement itself. This distinguishes our case from Richardson. Moreover, appellant’s home address and car license plate number figure prominently in the description of the commission of the crime. A juror who wonders who the other participant is ‘need only lift his eyes to [appellant], sitting at counsel table, to find what will seem the obvious answer, . . .’ [Citation.] The statement, even with redaction, facially incriminates appellant. . . . Admission of the statement in this form was a violation of appellant’s Sixth Amendment right of confrontation.” (People v. Archer, supra, 82 Cal.App.4th at p. 1390.)
This case is distinguishable. None of the victims identified the number of intruders that entered their homes, and none of the statements elicited from defendants contained information directly identifying a particular codefendant, absent the use of other properly admitted evidence. Furthermore, even where a codefendant’s statement implies the existence of other perpetrators, the California Supreme Court has recognized that, “when a redacted confession, as here, avoids a ‘one-on-one correspondence’ between the confession and an easily identifiable defendant, the confrontation clause is not violated. [Citations.]” (People v. Lewis, supra, 43 Cal.4th at p. 467; see also People v. Fletcher (1996) 13 Cal.4th 451, 466 [“a confession that is redacted to substitute . . . nonidentifying terms for the name of a codefendant will be sufficient if the codefendant was just one of a large group of individuals any one of whom could equally well have been the coparticipant mentioned in the confession”].)
Finally, defendants claim the use of their redacted statements violated Evidence Code section 356, which provides, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” Defendants asserted this objection before the trial court and it agreed to “give counsel an opportunity to go through what is being offered and see what counsel wish to produce under [Evidence Code section] 356 and any other objections you may have in terms of whether or not the proffered evidence is misconstrued[ or] taken out of context . . . .”
We review the trial court’s ruling under an abuse of discretion standard. (People v. Parrish (2007) 152 Cal.App.4th 263, 274.) Section 356 of the Evidence Code “permits the introduction of statements that are necessary for the understanding of, or to give context to, statements already introduced. [Citations.] But limits on the scope of evidence permitted under Evidence Code section 356 may be proper when, as here, inquiring into the ‘whole on the same subject’ would violate a codefendant’s rights under Aranda or Bruton. [Citation.] Here, the trial court did not prevent defendant from cross-examining the witnesses to bring out his own hearsay statements that exculpated him or lessened his own role in the crimes. Nor . . . did the trial court prevent defendant from presenting nonhearsay testimony or evidence that implicated his codefendants. [Citation.] Rather, the trial court precluded defendant only from bringing out his own hearsay statements that expressly inculpated his codefendants. These limits were permissible notwithstanding Evidence Code section 356.” (People v. Lewis, supra, 43 Cal.4th at p. 458.) A defendant could establish error only if he could show “the editing of his statement distort[ed] his role or ma[de] an exculpatory statement inculpatory. [Citation.]” (Id. at p. 457.) Defendants have failed to do so here.
Therefore, the trial court did not err in admitting defendants’ redacted postarrest statements.
c. Admission of Johnson’s and Peterson’s Testimony and Prior Statements
As noted, the prosecution also supported its case by presenting the testimony and prior inconsistent statements of Johnson and Peterson. The trial court admitted this evidence on the basis the statements were either adoptive admissions or statements against defendants’ interests.
D. Graham cites the vague nature of Johnson’s testimony and statements to the police, generally referring to the defendants by the collective term “they” and failing to ascribe a particular statement to a specific person, and argues the statements lacked the indicia of reliability to be admissible. Oard contends the statements were testimonial because Johnson and Peterson repeated them in response to police questioning “in the course of a police investigation,” and “without [the] opportunity to cross-examine the codefendant declarants” his Sixth Amendment right to confrontation was violated.
First, contrary to defendants’ claims, admission of the statements they made, either collectively or individually to Johnson and Peterson, do not violate the Aranda/Bruton rule. “Bruton does not stand for the proposition that all statements of one defendant that implicate another may not be introduced against all defendants in a joint trial. . . . Bruton . . . itself stated that the offending hearsay statement in that case was clearly inadmissible against the nondeclarant under traditional rules of evidence, and that there was no recognized exception to the hearsay rule for its admission.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 332.) “The rule thus presumes the statement is an admissible admission by the declarant and inadmissible hearsay against the codefendant. [Citation.] On the other hand, if the statement is admissible against the codefendant under a hearsay exception, and its admission otherwise survives confrontation analysis, then the jury may consider it against the codefendant; no reason exists for severance or redaction. [Citation.]” (People v. Smith, supra, 135 Cal.App.4th at p. 922.)
Second, Crawford v. Washington, supra, 541 U.S. 36 is inapplicable in this context. “Prior to Crawford . . . ‘the Supreme Court had held that an unavailable witness’s out-of-court statement against a criminal defendant could be admitted consistent with the [Sixth Amendment’s] confrontation clause if it bore “adequate ‘indicia of reliability.”’ [Citation.] To qualify under that test, evidence had either to fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” [Citation.]’ [Citations.] Crawford abandoned this approach to such statements, however, and held that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination. [Citation.] [¶] Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial.” (People v. Geier (2007) 41 Cal.4th 555, 597, quoting People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, ___, fn. 22 [2009 WL 18142, p. 16].) “A statement is testimonial if it was made in a formal proceeding or in response to structured police questioning. [Citations.]” (People v. Smith, supra, 135 Cal.App.4th at p. 924; see also Crawford v. Washington, supra, 541 U.S. at p. 68 [“Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations”].)
The statements defendants made to Johnson after leaving the party and the next day while the five of them were conversing at Oard’s residence, plus Oard’s statements to Peterson, clearly do not fall within any definition of testimonial. “The right of confrontation is not violated when the jury hears evidence, from a witness subject to cross-examination, relating a defendant’s own out-of-court statements and adoptive admissions. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 117.) While it is true that Johnson’s and Peterson’s answers when later questioned by the police constitute testimonial statements, both Johnson and Peterson testified at trial and were subject to cross-examination. Thus, the prior inconsistent statements by them were also properly admitted. (Evid. Code, §§ 770, 1235.)
As a result, the statements defendants made to Johnson and Peterson are admissible if they fall within a recognized hearsay exception and satisfy the confrontation clause restrictions on the use of nontestimonial statements. The two hearsay exceptions applied in the trial court were adoptive admissions (Evid. Code, § 1221) and statements against interest (Evid. Code, § 1230). The record supports the trial court’s finding the statements were admissible under both exceptions.
“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.) “‘A statement by someone other than the defendant is admissible as an adoptive admission if the defendant “with knowledge of the content thereof, has by words or other conduct manifested his adoption [of] or his belief in its truth.” [Citations.]’” (People v. Lewis, supra, 43 Cal.4th at p. 497; see People v. Jurado, supra, 38 Cal.4th at p. 116 [declarant’s statement “‘We took care of the problem and we dumped the body . . . ’” while she and the defendant were sitting next to each other “was admissible as an adoptive admission”].)
People v. Osuna (1969) 70 Cal.2d 759 presents an analogous situation. There witnesses testified to conversations they had with the two defendants shortly after they committed a murder. The Supreme Court rejected the claim the statements were inadmissible in a joint trial. “During each conversation both defendants recounted various details of the crimes. Had one disagreed with what the other said, it is reasonable to assume that he would have said so. Under these circumstances the statements of each were common admissions of both and therefore admissible against both. [Citations.]” (Id. at p. 765.) As for compliance with the confrontation clause requirement that this hearsay exception carry an indicia of reliability, case law has recognized that adoptive admissions constitute “a firmly rooted hearsay exception.” (People v. Jennings (2003) 112 Cal.App.4th 459, 472.)
Concerning statements against interest, “Only those statements or portions of statements that are specifically disserving of the penal interest of the declarant [are] deemed sufficiently trustworthy to be admissible. Statements not specifically disserving [are] characterized as ‘collateral’ statements and inadmissible.” (People v. Greenberger, supra, 58 Cal.App.4th at p. 328.) “In order for a statement to qualify as a declaration against penal interest the statement must be genuinely and specifically inculpatory of the declarant; this provides the ‘particularized guarantee of trustworthiness’ or ‘indicia of reliability’ that permits its admission in evidence without the constitutional requirement of cross-examination. Therefore, the determination that the statement falls within this hearsay exception also satisfies the requirements of the confrontation clause. [Citations.]” (Id. at pp. 329-330.)
D. Graham contends the foundation for admitting the statements was not satisfied, again relying on the vague nature of the statements and noting the speakers would likely have a motive to fabricate claims of criminal activity. “‘To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1189-1190.) We review the trial court’s decision to admit statements against interest under an abuse of discretion standard. (People v. Brown (2003) 31 Cal.4th 518, 536.) The trial judge’s evaluation of the defendants’ relationship to each other, the circumstances under which they spoke, and possible motivations for doing so support its ruling.
Finally, citing Johnson’s claim one of the Graham brothers first mentioned his sexual assaults on Ms. S., Thomas argues “this was a statement of . . . an accomplice implicating [him],” and “he was entitled to an accomplice instruction . . . direct[ing] the jury to view that accusation with caution and not to accept it without corroborating evidence. [Citation.]” We disagree. Penal Code section 1111 declares “[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” Neither of the Graham brothers testified. Rather Johnson, who was not an accomplice, testified to an out-of-court statement by the Grahams concerning Thomas’s perpetration of the sexual assaults. Thus, no basis existed for giving accomplice testimony instructions in this case.
d. Oard’s Miranda Claim
After being advised of his Miranda rights and agreeing to speak with the police, Oard initially denied engaging in the break-ins. The interrogators then mentioned the sexual assault charges and Oard appeared surprised, exclaiming, “How did I get involved in this?” One officer told him, “it’s all in your head,” and “you know exactly what happened.”
At that point, the following colloquy occurred: “[Oard]: “Okay, I don’t even what [sic] talk no more. [¶] [First Officer]: Well, I mean, like I said we want to get your side of the story. [¶] [[Oard]: I gave it to you. [¶] [First Officer]: But, you gave me, going to a party . . ., . . . after that you went to [a] house, your sister . . . is there, you’re on the bus with seven guys that you’re not gonna give me their names. How we’re gonna verify your story? That’s why we’re saying it’s serious . . . . [¶] [Oard]: Uh hum. [¶] . . . [¶] [Second Officer]: We need to verify the story. [¶] [First Officer]: We can’t afford to sit here, and not give you an opportunity . . . to get out of this thing. We can’t afford to do that, that’s why we’ve persistently, and we’re constantly asking you think about, research your brain and tell us what happened. [¶] [Oard]: Okay.” Oard eventually confessed to his participation in the crimes.
Before trial, Oard move to suppress his statements, arguing his statement “I don’t even what [sic] talk no more,” constituted “an invocation of his Fifth Amendment right to remain silent” and “his Sixth Amendment right to refuse to be questioned outside the presence of counsel.” The court reviewed both the transcript and most of the videotape of Oard’s confession and denied the motion, finding “[i]t . . . pretty obvious . . . that Mr. Oard was not invoking his right to remain silent,” and “did not find any other Miranda violations . . . .” Oard attacks this ruling, and also contends his confession was involuntary because it resulted from undue psychological coercion.
All of Oard’s claims lack merit. As for the Fifth Amendment, “since the Miranda decision . . . ‘[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.’ [Citations.] Whether the suspect has indeed invoked that right, however, is a question of fact to be decided in the light of all the circumstances: ‘A desire to halt the interrogation may be indicated in a variety of ways,’ and the words used by the suspect ‘must be construed in context.’ [Citation.]” (People v. Hayes (1985) 38 Cal.3d 780, 784-785.) On appeal, “the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility,” will be upheld if “supported by substantial evidence. [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 733.) “‘“However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.]”’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 128.)
The trial court found this case analogous to People v. Musselwhite (1998) 17 Cal.4th 1216. There, during questioning about the defendant’s presence in an apartment complex where a murder occurred, the officers told him “‘we’re talking deadly serious stuff here partner. We’re through . . . bantering around. We’re going to have to get down to the facts. Okay. The fact of the matter is, you’re going to have to think very clearly right now. You got to think what’s best for me. Am I in a bind or what. Now what do these guys know and what don’t they know. If they got enough to do me, what’s my best thing to do. What’s best for me.’” (Id. at p. 1239.) In response, defendant said, “‘I don’t want to talk about this. You all are getting me confused. . . . I don’t even know what you’re all talking about. You’re . . . making me nervous . . . .’” (Ibid.)
After viewing a videotape of the interrogation, the trial court concluded the defendant’s statements did not amount to an attempt to stop the questioning. Giving “considerable weight” to the trial court’s finding, the Supreme Court affirmed the ruling. “There are a number of cases in which this court and the Court of Appeal have reviewed the findings of the trial court that what is claimed, post hoc, to be a suspect’s attempt to invoke his Miranda right to remain silent and cut off further questioning is something less or other than that. [Citations.] This is another such case.” (People v. Musselwhite, supra, 17 Cal.4th at pp. 1239-1240.)
Numerous other Supreme Court decisions have recognized ambiguous statements during an interrogation that reflect a defendant’s reluctance to answer one or more questions, when considered in context, did not amount to a clear invocation of the right to remain silent. (People v. Ashmus (1991) 54 Cal.3d 932, 968-970, disapproved on another ground as recognized in People v. Yeoman (2003) 31 Cal.4th 93, 117-118 [when told of acquaintance’s statement, the defendant said “now I ain’t saying no more”; merely an effort “to alter the course of the questioning[] . . . not . . . stop it altogether”]; People v. Jennings (1988) 46 Cal.3d 963, 977-978, fn. omitted [statements “‘You’re scaring the living shit out of me. I’m not going to talk.’ . . . [a]nd, ‘I’m not saying shit to you no more, man. . . . That’s it. I shut up[]’” held to “involve[] a few moments when defendant lost his temper and expressed anger toward” interrogating officer, not invocation of right to silence]; People v. Silva (1988) 45 Cal.3d 604, 629-630 [statement, “‘I don’t know. I really don’t want to talk about that’” deemed “an unwillingness to discuss certain subjects without manifesting a desire to terminate ‘an interrogation already in progress’”]; In re Joe R. (1980) 27 Cal.3d 496, 513-516 [minor initially gave exculpatory answers, but after police accused him of lying and confronted him with incriminating evidence, replied, “‘That’s all I have to say’”; trial court did not err by inferring minor “was saying . . . ‘[t]hat’s my story, and I’ll stick with it’”].)
Here, contrary to Oard’s assertion, the interrogating officers did not merely ignore his statement and continue questioning him about the crimes. Reviewed in context, particularly the officers’ reference to the sexual assault offenses, and considering Oard’s apparent willingness to continue answering the officers’ questions, his statement about not wanting to talk did not amount to an invocation of his right to remain silent.
Defendant relies on People v. Marshall (1974) 41 Cal.App.3d 129, where the court found an invocation of the right to remain silent when a minor twice said “No” when the interrogating officers asked, “‘So do you want to go back over the parts you left out?’” (Id. at pp. 132-133.) Marshall is clearly distinguishable from this case.
Next, Oard concedes he “did not [expressly] invoke his right to counsel,” but nonetheless conclusorily asserts the failure to stop the interrogation when he said “I don’t even what [sic] talk no more” violated his Sixth Amendment right to counsel. Not so. The purpose underlying the rule requiring an interrogation to cease once a suspect asserts a right to counsel is “‘to protect . . . the suspect’s “desire to deal with the police only through counsel,” [citation].’ [Citation.]” (People v. Gonzalez (2005) 34 Cal.4th 1111, 1123.) Therefore, an invocation of this interest “‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.’ [Citation.]” (Ibid.) Thus, a court “must ask whether, in light of the circumstances, a reasonable officer would have understood a defendant’s reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant’s subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant. [Citation.]” (Id. at p. 1125; see also Davis v. United States (1994) 512 U.S. 452, 460-462 [114 S.Ct. 2350, 129 L.Ed.2d 362].) Oard’s statement cannot suffice to support an invocation of his right to counsel and he fails to cite any other mention of a request for counsel before or during his interrogation. Thus, his argument is unavailing.
Finally, although trial counsel declared “[t]here isn’t anything that . . . appears to be . . . physical coercive action” and “there does not appear to be a grossly mentally coercive element in the interview,” Oard now contends the admission of his confession was erroneous because the police obtained it through psychological coercion. Since a confession obtained by coercion violates a defendant’s constitutional right to due process of law, failure to timely object to its admission does not waive the right raise the issue on appeal. (In re Cameron (1968) 68 Cal.2d 487, 503; People v. Hinds (1984) 154 Cal.App.3d 222, 237.)
“A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 659.) “In deciding the question of voluntariness, the United States Supreme Court has directed courts to consider ‘the totality of circumstances.’ [Citations.] Relevant are ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’ [Citation.]” (Id. at p. 660.)
In support of his claim, Oard cites the length of the interrogation (3 hours), his age (19), and his assertion that an unnamed police officer had threatened to “destroy [his] grandmother’s house” if he did not “tell them something.” Cases have rejected involuntariness claims where even younger suspects were questioned and when the questioning lasted significantly longer than Oard’s interrogation. (People v. Hill (1992) 3 Cal.4th 959, 981, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [8 hours of questioning over a 12-hour period of time]; People v. Magee (1963) 217 Cal.App.2d 443, 452-457 [16-year-old questioned twice by police over length of afternoon].) Other than Oard’s own statement, nothing in the record supports the alleged threat and, given both the length of the interrogation plus the fact Oard continued to deny any involvement in the crimes until the very end of the questioning, the evidence fails to support a conclusion he confessed because of it. Applying a de novo review standard, we conclude Oard has failed to establish that, as a matter of law, his confession resulted from coercion.
3. The Criminal Street Gang Crimes and Enhancements
a. Background
Oard and Thomas attack the evidence and proceedings concerning the street terrorism charges and criminal street gang enhancements on several grounds. Their claims include insufficiency of the evidence to support the charges and allegations, plus trial court error in refusing to bifurcate the gang issues from the substantive crimes, allowing the gang expert to express an opinion on the ultimate issues, and in instructing the jury on the street gang enhancement. Oard further claims the prosecutor committed misconduct during her questioning of the gang expert. We reject all of their arguments.
b. The Gang Expert’s Testimony
Detective Craig Brown testified as an expert on criminal street gangs for the prosecution. He described the history and background of the Crips in general and opined that the Rollin Sixties Neighborhood Crips, East Coast Q-102 Crips, and Mona Park Crips were each a criminal street gang. Brown also identified Oard as an active member of the Rollin Sixties Neighborhood Crips, Thomas as an active member of the East Coast Q-102 Crips, and both R. Graham and D. Graham as active members of the Mona Park Crips.
The prosecutor presented a hypothetical question based on the facts of this case and then separately asked Brown whether, in his opinion, “the crimes . . . were committed for the benefit” of each of the aforenamed criminal street gangs.
As to each one, Brown said yes, stating: “Based on [each defendant’s] acts and completion of the criminal conduct with three other individuals from two other gangs, the pattern of criminal activity that they engaged in that night, the preplanning of the criminal activity that they engaged in that night, the boasting about the criminal conduct they engaged in the following day to [another] individual, the rewards that they received from it, both in monetary and property gains, the fear that they inflicted upon the individuals at both residences through the orders, the use of a weapon and through the force and the violence, through the sexual assault against the one individual in the first residence. Those acts, and the violence in itself, benefits that individual’s status as a participant of [the defendant’s particular criminal street gang] by merely engaging in those criminal acts in the presence of two other gangs, three members from those gangs. And then to [the other] individual, the knowledge of . . . that individual [that the named defendant] . . . engaged in those acts, completed those acts, and, up until being arrested, got away with those acts. The monetary profit, as well as the respect profit on the street is for the benefit of [the particular criminal street gang].”
Based on the same factual hypothetical, Brown also testified the charged crimes “promoted or furthered the criminal conduct of” each of the aforenamed criminal street gangs: “My opinion is that the individual[’s] . . . criminal conduct and his participation in the preplanning of, execution of, completion of, and, until arrest, getting away with the criminal acts in the presence of [members of the other named criminal street gangs], and sharing that knowledge with [another] individual, that furthered the criminal conduct of [the individual defendant’s criminal street gang] by his participation in those acts as a participant [of the named gang].”
c. The Street Terrorism Charge
Penal Code section 186.22, subdivision (a) makes it a crime for “[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .” This crime “has three elements. Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive . . . . The second element is ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and the third element is that the person ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas (2007) 42 Cal.4th 516, 523.)
Thomas contends the evidentiary support for “all three of these elements [is] lacking in th[is] case.” This argument lacks merit. As with all insufficiency-of-the-evidence claims, “‘we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329; see also People v. Vu (2006) 143 Cal.App.4th 1009, 1024.)
As for defendants’ active participation in their respective gangs, the prosecution introduced evidence of defendants’ admissions to Johnson, family members, and the police about their gang membership. Each defendant, including Thomas, had a gang nickname, knew gang hand signs and slang, and was aware of the gang’s affiliates and rivals. During searches of each defendant’s home, the police found photographs of them with other gang members flashing gang hand signs, gang-related writings, and clothing and other articles in the gang’s color. This evidence supports a conclusion that each defendant’s “involvement with [his] criminal street gang . . . [was] more than nominal or passive.” (People v. Castenada (2000) 23 Cal.4th 743, 747.)
Concerning the knowledge of gang criminal activity, both D. Graham and R. Graham admitted knowing about crimes committed by Mona Park gang members. Thomas described himself as being “in training” with the East Coast Q-102 Crips. When the police searched his home they found, in addition to the numerous photographs of him with other gang members wearing gang colors and flashing gang hand signs and several gang-related writings, a videotape describing the Crips way of life. Jail personnel discovered Rollin Sixties Neighborhood Crips’s graffiti in Oard’s cell and seized outgoing mail that used his nickname and referred to the details of the charged crimes and his gang. In addition, Brown testified active gang members would know about the gang’s crimes. The mere fact defendants did not sport gang tattoos or otherwise identify themselves to the victims of the home invasions does not preclude a conviction in this case. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1511.) This evidence sufficed to establish that each defendant had the requisite knowledge concerning the nature of his gang’s criminal activity.
The final element requires proof a defendant “willfully promot[ed], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang.” (Pen. Code, § 186.22, subd. (a).) “In common usage, ‘promote’ means to contribute to the progress or growth of; ‘further’ means to help the progress of; and ‘assist’ means to give aid or support. [Citation.]” (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) It “applies to [both] the perpetrator” and “the aider and abettor” “of felonious gang-related criminal conduct.” (Ibid.; see also People v. Salcido (2007) 149 Cal.App.4th 356, 367-368.) And, unlike the enhancement in Penal Code section 186.22, subdivision (b), street terrorism “does not require the crime be for the benefit of the gang.” (People v. Martinez, supra, 158 Cal.App.4th at p 1334.)
Here, the evidence established defendants committed the crimes with three other gang members. The next day defendants told Johnson about what they had done the night before. Brown opined each defendant’s participation in this activity, planning the offenses, executing them, flight, and subsequent telling Johnson about what they did, promoted and furthered each defendant’s gang.
Thomas argues the third element is not supported because he did not commit the crimes of burglary, home invasion robbery, sexual assault, and vehicle theft “in conjunction with any East Coast Crips gang members . . . .” That was not required. The statute applies where “[a]ny person actively participates” in a gang, knowing “its members engage in or have engaged in a pattern of criminal gang activity, . . . who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . .” (Pen. Code, § 186.22, subd. (a).) Where the elements of the offense are shown a single gang member, acting alone, can be convicted of street terrorism. (See People v. Garcia, supra, 153 Cal.App.4th at pp. 1508-1511 [upholding street terrorism conviction of lone gang member carrying a loaded firearm in public].)
A similar argument was rejected in People v. Salcido, supra, 149 Cal.App.4th 356. There the defendant was convicted of two counts of street terrorism occurring on separate occasions. The first offense arose from his arrest for illegal possession of weapons, and the second offense occurred when he was arrested for possession of stolen vehicle and carrying a loaded firearm in it. Although on each occasion the defendant was accompanied by known gang members, there was no evidence the other gang members participated in the crimes. He attacked the street terrorism convictions “assert[ing] subdivision (a) imposes liability on perpetrators only if they commit the crime in concert with other gang members.” (Id. at p. 368.) The appellate court rejected this contention, noting that “[i]n each case, however, ‘[t]he evidence supports a reasonable inference that the [crimes] were intended by appellant to promote, further and assist the gang in its primary activities—the commission of criminal acts and the maintenance of gang respect.’” (Ibid.)
The same is true here. Thus, we conclude the evidence supports each defendant’s conviction for street terrorism.
d. The Criminal Street Gang Enhancement
Subdivision (b) of Penal Code section 186.22 imposes additional punishment on “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 . . . .”
Both Oard and Thomas contend the jury’s findings must be reversed because the evidence fails to support a conclusion defendants committed the substantive crimes for the benefit of a gang. Alternatively, Oard argues the trial court committed instructional error, claiming CALCRIM No. 1401, the standard instruction defining the enhancement, does not include its “requirement of specific intent . . . .” (Italics omitted.) We reject their claims.
“The substantial evidence standard of review applies to section 186.22 gang enhancements. [Citations.]” (People v. Augborne (2002) 104 Cal.App.4th 362, 371.) Thus, “[w]e view the evidence in a light most favorable to the judgment. [Citations.]” (Id. at p. 366.) “[T]o prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.)
First, we note the enhancement applies where any “person is convicted of a felony . . . .” (Pen. Code, § 186.22, subd. (b), italics added.) Thus, it applies even to someone not identified as a gang member. Second, “‘[t]he crime itself must have some connection with the activities of . . . a “criminal street gang,”’” which means the defendant “committed it ‘“‘for the benefit of, at the direction of, or in association with’ a street gang.”’ [Citation]” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.)
In challenging the true findings on the enhancement, Thomas argues “the evidence was . . . lacking” to support a “finding that the crimes were committed for the benefit of [a] gang . . . .” Oard makes a similar claim. But the street gang enhancement applies if a felony is committed either “at the direction of, or in association with any criminal street gang . . . .” (Pen. Code, § 186.22, subd. (b).) While there is no evidence the identified street gangs directed defendants to commit the substantive offenses, during closing argument, the prosecutor did contend the enhancement could be found true because “they did it in association with each other.” Since the enhancement applies if “the crime [is] committed . . . in association with a gang[]” case law has recognized “the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with [other] gang members.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Here, the evidence sufficed to establish each defendant was an active gang member of a gang and thus committed the substantive crimes “in association with a gang.”
Contrary to defendants, the prosecution did not need to show they committed the substantive crimes for the benefit of a gang to establish the requisite specific intent. (People v. Leon (2008) 161 Cal.App.4th 149, 163.) “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct. [Citation.]” (People v. Romero (2006) 140 Cal.App.4th 15, 19.) It is uncontradicted each defendant intended to promote and assist his confederates in committing the substantive crimes.
Therefore, the evidence supports the jury’s findings on the criminal street gang enhancements.
Oard’s alternative instructional error claim also lacks merit. “We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘“In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
The court gave the standard instruction, directing the jury to “[p]ay careful attention to all of these instructions and consider them together.” (CALCRIM No. 200.) It also gave CALCRIM No. 252, describing the crimes that require a finding of general criminal intent, “forcible oral copulation, rape, and attempted rape,” and then told the jury “[t]he remainder of the charged crimes and allegations require a specific intent,” meaning “a person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the intent required are explained in the instruction for each crime or allegation.”
The court also defined the terms criminal street gang and a pattern of criminal gang activity. Finally, using CALCRIM No. 1401, it instructed them on the criminal street gang enhancement, declaring: “To prove this allegation, the People must prove that: [¶] One, the defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; [¶] And, two, the defendant intended to assist, further, or promote criminal conduct by gang members.”
These instructions, construed together, adequately informed the jury of the mental state required to support true findings on the criminal street gang enhancements.
e. Refusal to Bifurcate Gang Allegations
Claiming “the gang evidence was highly inflammatory and prejudicial,” Thomas argues the trial court erred by “refusing to bifurcate the gang allegations.” Neither the record nor the law supports this contention.
Before trial began, D. Graham sought a continuance because the prosecutor had failed to identify the three Los Angeles police investigators she intended to call as gang experts. R. Graham and Oard also joined in this request. Concluding there had been a discovery violation, the trial court asked counsel, “what’s the best remedy? Continue the entire matter or bifurcate the gang allegations from the substantive crimes?” The prosecutor expressed a preference for a short continuance, while all defense counsel appeared willing to accept either solution. The court noted “[i]t doesn’t seem to make much sense [to bifurcate] because the gang evidence will probably be as long as the substantive crime evidence, which would have to be duplicated in any event . . . .”
The prosecutor then suggested the third alternative of having Brown, who testified as the gang expert at the preliminary hearing, testify as its expert at trial as well. Accepting the prosecutor’s proposal and recognizing “everything has been disclosed that the[ prosecution] w[as] going to be relying on,” the court denied R. Graham’s continuance request.
In People v. Hernandez, supra, 33 Cal.4th 1040, the Supreme Court recognized trial court’s have discretion to bifurcate the trial of a street gang enhancement from the trial on the substantive crimes. (Id. at p. 1049.) Recognizing “some of the . . . gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt” (ibid.), the court analogized to factors relevant to the issue of whether to sever the trial of charged crimes, such as “avoid[ing] the increased expenditure of funds and judicial resources which may result [from] . . . two or more separate trials[,]” to conclude “a court may still deny bifurcation[]” “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself . . . .” (Id. at p. 1050.)
As the Attorney General notes, none of the defendants expressly moved to bifurcate the street terrorism and street gang enhancement allegations on any ground, much less because of the potentially inflammatory nature. It was the trial judge who proposed bifurcation and then solely as a remedy for the prosecution’s breach of the discovery rules. Defense counsel’s expressed a willingness to do so, but only because of the discovery violation, not otherwise. Further, the court noted bifurcation was not a good solution because of the duplication that would be required “in any event.” Thus, defendants have failed to show the court abused its discretion by not bifurcating the gang crimes and allegations from the remaining charges.
f. Admission of the Gang Expert’s Opinions
We also reject Oard’s related claim the trial court erred by allowing Brown to express opinions on the “natural and probable consequences” of flashing gang hand signs and crossing out a rival gang’s graffiti or, alternatively, giving the jury a limiting instruction on Brown’s use of the phrase “dirty 30” in reference to the predicate offenses listed in Penal Code section 186.22, subdivision (a).
“The use of expert testimony in the area of gang sociology and psychology is well established. [Citations.] The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case. [Citations.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.) Subject to the trial court’s discretion, “an expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth[]’ [citation]” if the “question [is] rooted in facts shown by the evidence,” or where the opinion is “premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618.)
Even assuming it was error to overrule the defense objections to Brown’s “natural and probable consequences” statement or to deny a limiting instruction concerning his reference to the criminal street gang predicate offenses as the “dirty 30,” the error was clearly harmless. There was no issue concerning the use of gang hand signs or gang graffiti in this case, and Brown later identified the specific offenses that constituted the primary activity supporting his conclusions that the Rollin Sixties Crips, East Coast Q-102 Crips, and the Mona Park Crips were criminal street gangs. Nor did the prosecutor make use of either comment in closing argument. These solitary references standing alone had no effect on the jury’s verdicts or findings.
g. Prosecutorial Misconduct
Oard asserts prosecutorial misconduct occurred on two occasions during questioning of the gang expert.
Before Brown testified, R. Graham objected to his “making any reference to speaking to [Graham’s] probation officer.” The trial court told the prosecutor that, in identifying the “types of materials . . . he’s relied on,” Brown “can refer to them as police reports, probation reports, whatever, but . . . [must] exclude reference specifically to a particular defendant.” During direct examination, the prosecutor asked Brown to describe “some” of the material on which he relied to opine Oard was an active participant of the Rollin Sixties Crips. Brown responded, citing “[t]he graffiti, the writings, the color[,] . . . [t]he stolen property recovered at his residence[,] . . . [t]he admissions of involvement in the criminal acts . . . [t]he statements from . . . Johnson,” statements from Oard’s “relatives identifying him as a Rollin’ Sixties participant,” and “graffiti at the jail while he was in custody . . . .” Then Brown mentioned “[r]eview of probation reports pertaining to the listed incident.” The trial court sustained Oard’s objection and directed the jury “to disregard the last sentence.”
The prosecutor also asked Brown “[i]s there anything in particular about this crime itself and the facts of this crime” that “based on your training and experience . . . has this stand out as a gang crime?” After Brown answered, stating “[t]he she[e]r magnitude of the violence,” D. Graham objected on vagueness grounds and the court sustained the objection. The prosecutor asked the question a second time, but the court again sustained D. Graham’s objection even before Brown gave an answer. When the prosecutor attempted to ask the question a third time, the court called a sidebar conference and told her “[i]f you’re going to ask him about this particular crime, you’re going to have to ask it in the way of a hypothetical.” The prosecutor then moved to another line of questioning.
First, defendants have forfeited the prosecutorial misconduct claim by not objecting on that ground at trial. The only objection asserted was vagueness. The trial court sustained both objections, directed the jury to disregard Brown’s first answer, and granted a motion to strike the second answer. Thus, defendants waived the right to assert prosecutorial misconduct on appeal. (People v. Leonard (2007) 40 Cal.4th 1370, 1405; People v. Thornton (2007) 41 Cal.4th 391, 454.)
Furthermore, the record fails to support a claim prosecutorial misconduct occurred in this case. “A prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence,” and “[i]f the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement. [Citation.]” (People v. Warren (1988) 45 Cal.3d 471, 481-482; People v. Leonard, supra, 40 Cal.4th at p. 1406.) As for Oard’s gang membership, the prosecutor’s question seeking “some of” the “facts that [Brown] . . . considered in forming [his] opinion” Oard belonged to the Rollin Sixties Crips was not inherently likely to elicit a reference to inadmissible evidence. The court found only the last sentence of the answer. (People v. Leonard, supra, 40 Cal.4th at p. 1405 [“the prosecutor’s question was proper because it was not inherently likely to elicit a reference to [inadmissible testimony] and there was no evidence that the prosecutor asked it with the intent to elicit such a reference”].) The prosecutor’s effort to inquire as to how the charged offenses constituted gang crimes was not long and she changed to a different subject once the court explained the basis of its rulings.
Contrary to Oard’s assertion, the answers elicited by the prosecutor did not result in a miscarriage of justice. The court struck Brown’s answers to both questions and explicitly directed the jury to disregard his reference to probation reports. Later it instructed the jury “[n]othing that the attorneys say is evidence,” including “[t]heir questions,” where the court “sustained an objection, you must ignore the question,” and “[i]f [the court] ordered testimony stricken from the record, you must disregard it and you must not consider that testimony for any purpose.” Jurors are presumed to follow the court’s instructions. (People v. Wilson (2008) 44 Cal.4th 758, 834; People v. Gray (2005) 37 Cal.4th 168, 231; see also People v. Pinholster (1992) 1 Cal.4th 865, 943 [“no prejudice” where “the defense objection was sustained, the court directed that there be no further references to the” inadmissible evidence “and the jury was instructed to disregard the question”].) Oard fails to cite anything in the record overcoming this presumption. Thus, we reject Oard’s prosecutorial misconduct claim.
4. Sentencing Issues
a. Background
The trial court sentenced each defendant to a five-year determinate term, consisting of the two-year midterm on count 2 (vehicle theft) plus a three-year term for the true finding on the street gang enhancement (Pen. Code, § 186.22, subd. (b)). To this determinate sentence, the court added a consecutive twenty-one-years-to-life term on both counts 1 and 7 (robbery), plus a concurrent twenty-one-years-to-life term for the third robbery conviction. It calculated these sentences by imposing the six-year midterm for that offense and adding a fifteen-years-to-life term for the associated street gang enhancement findings under Penal Code section 186.22, subdivision (b)(4) [defendant convicted of home invasion robbery where criminal street gang enhancement is found true subject to indeterminate life term with minimum term of fifteen years].
As for Thomas, the court imposed an additional consecutive life term with a fifteen-year minimum sentence for his oral copulation conviction. The court imposed two-year concurrent terms on counts 13, 14, and 15 (street terrorism). Finally, sentencing on the burglary counts as to all defendants and the rape count as to Thomas were stayed under Penal Code section 654.
b. Analysis
The parties raise numerous sentencing claims. The Attorney General concedes some of them have merit.
Oard claims the trial court violated Penal Code section 654 by imposing sentence for both the gang enhancement (Pen. Code, § 186.22, subd. (b)) and his conviction of street terrorism (Pen. Code, § 186.22, subd. (a)), arguing “there was but a single intent behind all of the crimes . . . .”
Penal Code section 654 declares in part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Pen. Code, § 654, subd. (a).) The statute applies not only to a single act resulting in multiple convictions, but also to a course of conduct violating more than one criminal statute if all of the offenses are incident to a single objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Oard’s argument lacks merit for two reasons. First, even in cases of multiple punishment for substantive crimes where the defendant acts with a single objective in an indivisible course of conduct, Penal Code section 654 “does not . . . preclude multiple punishment when the defendant’s violent act injures different victims. [Citations.]” (People v. DeLoza (1998) 18 Cal.4th 585, 592.) Defendants’ street terrorism convictions were based upon their participation in a course of conduct that resulted in robberies against three different persons. “‘Robbery is violent conduct warranting separate punishment for the injury inflicted on each robbery victim.’ [Citations.]” (Ibid.) No reason exists why this principle would not also apply where a defendant is punished for committing the substantive crime of street terrorism and has his punishment on another offense enhanced based on the street gang enhancement.
Second, we recently rejected this argument in People v. Garcia, supra, 153 Cal.App.4th 1499. There we held: “To be convicted of street terrorism under section 186.22, subdivision (a), a defendant must ‘have the intent and objective to actively participate in a criminal street gang,’ but need not have the intent to personally commit any specific felony. [Citation.] [¶] When a defendant commits a crime for the benefit of a criminal street gang, he or she may have two independent but simultaneous objectives—to commit the underlying crime and to benefit the gang. [Citations.] Thus, section 654 does not prohibit punishing a defendant both for violating section 186.22, subdivision (a) and for the underlying crime committed for the benefit of the gang when the two offenses involve different objectives. [Citations.]” (Id. at p. 1514.) We conclude the trial court did not err by punishing defendants under both subdivisions (a) and (b) of Penal Code section 186.22.
Both Thomas and R. Graham claim the court also violated Penal Code section 654 by imposing sentences for both the home invasion robbery on count 1 involving Ms. S. and the theft of her vehicle on count 2. They argue the sentence on the latter count must be stayed as well. The Attorney General concedes these arguments have merit. (People v. Bauer (1969) 1 Cal.3d 368, 377 [section 654 applies to convictions for robbery and vehicle theft where the defendants ransack victims’ home and then take one victim’s car].)
Next, Thomas and R. Graham contend the trial court erred by imposing both determinate sentences on the robbery counts and the fifteen-years-to-life term under Penal Code section 186.22, subdivision (b)(4). They argue the latter term is an alternative sentence, not an enhancement. The Attorney General concedes these arguments have merit as well. (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7 [“Section 186.22, subdivision (b)(4) is an alternate penalty provision that provides for an indeterminate life sentence for certain underlying felony offenses that are gang related”]; People v. Harper (2003) 109 Cal.App.4th 520, 527 [discussing related provision in Pen. Code, § 186.22, subdivision (b)(5), the statute “is clear: determinate enhancements are to be imposed only when a determinate term is imposed” and “[t]he 15-year parole minimum is to be imposed when the defendant has been sentenced to a life term”].)
Finally, R. Graham claims the trial court erred in calculating the amount of his presentence custody credits. Again, the Attorney General concedes the abstract of judgment needs to be corrected in this respect.
DISPOSITION
Appellants’ convictions on all counts are affirmed. Based on the sentencing errors discussed above and trial court’s expressed intent to impose “appropriate sentences” on appellants, we also vacate the sentences on all counts and remand the matter for resentencing.
WE CONCUR: FYBEL, J. IKOLA, J.