Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge, Los Angeles County Super. Ct. No. TA080069
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, Acting P.J.
Javier Johnson was convicted of one count of first degree murder and one count of attempted first degree murder, with findings that a principal armed with a firearm discharged it during the crimes, causing death to the murder victim and great bodily injury to the other victim, plus findings that the crimes were committed for the benefit of a street gang and that Johnson was a minor at least 16 years of age at the time of the crimes. (Pen. Code, §§ 187, subd. (a), 664, 12022.53, subds. (b), (c), (d), (e)(1), 186.22, subd. (b)(1)(A); Welf. & Inst. Code, § 707, subd. (d)(1).) He was sentenced to state prison for a term of 90 years to life. Johnson appeals, contending there were instructional, evidentiary, and sentencing errors. We modify Johnson’s sentence, reducing it to a term of 75 years to life, but otherwise reject his claims of error and affirm the judgment.
All section references are to the Penal Code.
FACTS
A.
On November 28, 2003, Nicole Williamson and Raynesha Bates were sitting in Nicole’s parked car in front of her house, “hanging out” with Jarae Davis, Treyvionn Jackson and three other young men who were standing around the car while they all listened to music, talked and laughed. The scene shattered when a sedan occupied by three young men drove up and the front-seat passenger fired several shots at Nicole and her companions, killing Nicole and seriously wounding Raynesha (she was hospitalized for six weeks). Although Nicole (a student at Harbor College), Raynesha, Davis and Jackson were not gang members, they were in an area “claimed” by the Piru Centerview gang, and the three young men standing around the car were Centerview members.
From photographs, Jackson and Davis identified the shooter as Doheen “Tiny Killer D” Pratt, a 12-year-old member of the “Young Bastards Click,” a “subgroup” of the 190 East Coast Crips gang, but no one at the scene could identify the two other men in the sedan. Neither the car nor the weapon were recovered, and the bullets recovered from the victims could have been fired from a .38-caliber or 357 revolver, or a 9-millimeter semi-automatic weapon. No casings were found at the scene.
B.
In May 2005 (about 18 months after the shooting), Los Angeles County Sheriff’s Department Detectives Mitch Loman and Mitch Robison interviewed Jonte Chrishon, a member of the Bounty Hunter Watts gang, about the November 2003 crimes. According to Chrishon’s taped statement (excerpts of which were played for the jury at Johnson’s trial), on the day after the shooting, Pratt (the shooter), defendant Johnson, and another man (Marcus Lloyd) visited Chrishon at his house and told Chrishon, “‘We just stole this car.’” When Chrishon asked, “‘What did y’all do,’” “[t]hey said they went to go, uh, get in a drive-by in Centerview. . . . [T]hey was like, ‘We just busted some Tennis Shoes’” (a derogatory term for Centerview gang members). Without explaining who said what, Chrishon told the detectives that Johnson was the driver, that Pratt was the shooter, that it was a “virgin mission” for Pratt, and that Johnson and Lloyd had given a gun to Pratt because he was “tryin’ to earn his stripes.” According to Chrishon, the three men had two guns at the time of the shooting, a .380 Tech and a .38-caliber, but only one was fired -- “they just -- pow, pow, pow, drive-by, you know.”
Detective Loman next interviewed Marcus Lloyd, who was then 14 or 15 years old (so that he was 12, 13 or 14 at the time of the shooting). When the detective told Lloyd that Chrishon had said Lloyd, Pratt and Johnson were involved in the shooting, Lloyd offered to tape a conversation with Johnson. To that end, on June 1, 2005, Lloyd and Johnson were placed together in a wired jail van and their conversation was recorded (and excerpts were played for the jury at Johnson’s trial). Lloyd asked Johnson whether he “remember[ed] when [he] shot that bitch.” Johnson said, “Yeah,” and boasted, “Hey, I told cuz, like, nigga, right now the YBC’s out here are the crucialist [sic] thing out here, ain’t nobody gonna stop it. That’s real though cuz, you feel me though, cuz? Niggas out here.”
Lloyd then asked Johnson, “How long nigga -- after you, killed that bitch, how long before, after you went to jail?” Johnson answered, “Like, three weeks later.” Lloyd and Johnson then talked about being in jail shortly after the shooting, and in trying to remember the days that they had gone to jail, Johnson agreed with Lloyd that it was after the “shit” involving “that bitch in Tennis Shoes” had happened, sometime “around Thanksgiving.”
C.
Johnson was arrested and charged with Nicole’s murder and the attempted murder of Raynesha. At trial, the People presented evidence of the facts summarized above. In addition, a gang expert testified that Johnson was a known member of the Young Bastards Click of the 190 East Coast Crips gang, as were Pratt and Lloyd; that the primary activities of the 190 East Coast Crips gang are auto theft, assault, robbery, murder, drug sales, and vandalism; that the gang “claims” a territory by means of violence and intimidation; and that a gang member enhances his reputation with the gang by shooting someone in a rival gang’s territory. In response to a hypothetical question based on the facts of this case, the expert opined that such a shooting would have benefited the shooter by elevating his status within his gang, and benefited the shooter’s gang by showing a wanton disregard for members of another gang and increasing the shooter’s gang’s reputation for violence.
In defense, Johnson called three members of the 190 East Coast Crips gang who testified that none of them knew where Johnson was at the time of the shooting, and that the real culprits were two other gang members (“Little Smurf” and “Baby Coast”) who had admitted their involvement.
The jury convicted Johnson as charged.
DISCUSSION
I.
Johnson contends the entire judgment is flawed because the trial court failed to sua sponte instruct the jury that an accomplice’s testimony must be corroborated. (CALCRIM Nos. 334, 335.) Although neither Pratt nor Lloyd testified at trial, Johnson’s position is that their statements, introduced through Chrishon’s taped interview, were nonetheless those of accomplices. Assuming error, it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Arias (1996) 13 Cal.4th 92, 143 [the failure to instruct on the law governing accomplice testimony is harmless when there is ample evidence corroborating the accomplice’s testimony].)
First, Johnson’s taped admissions to Lloyd corroborate his accomplices’ statements to Chrishon. Although Lloyd may have done most of the talking, Johnson’s responses plainly acknowledged his involvement and expressed his pride in his accomplishment: As noted above, when Lloyd asked Johnson whether he “remember[ed] when [he] shot that bitch,” Johnson said, “Yeah,” and boasted, “Hey, I told cuz, like, nigga, right now the YBC’s out here are the crucialist [sic] thing out here, ain’t nobody gonna stop it. That’s real though cuz, you feel me though, cuz? Niggas out here.” There is nothing vague or ambiguous about this admission.
Second, the statements by Pratt and Lloyd were corroborated by the eyewitness testimony that three young men were involved in the shooting and that Pratt was the shooter.
Third, Johnson is simply mistaken when he says this was a close case, as shown by the fact that the jury deliberated for a “long time.” Although deliberations began on September 14, 2006 and concluded on September 18, the jurors were not deliberating for five full days. The bailiff was sworn at 4:01 p.m. on Thursday, September 14, the jurors were admonished, and excused for the day (so there were no deliberations at all on September 14). The jury deliberated all day Friday, September 15, but of course did not deliberate on Saturday or Sunday, September 16 and 17. They reached a verdict at 10:20 a.m. on Monday, September 18. In short, the deliberations took one day plus an hour or so.
Finally, we summarily reject Johnson’s contention that this issue is one of constitutional dimension. He offers no pertinent authority to support this argument and we know of none. The authorities he does cite are inapposite. (E.g., U.S. v. Sarno (9th Cir. 1995) 73 F.3d 1470, 1484-1485 [court refused to instruct on defense theory supported by the evidence]; Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 744 [same].)
Johnson’s assertion that he “presented a defense that other individuals committed the crimes” and that this defense was “worthy of consideration by the jury” has nothing to do with the trial court’s failure to instruct that an accomplice’s testimony requires corroboration.
In sum, the error (if there was one) was harmless.
II.
Johnson contends the trial court should not have allowed the jury to hear the tape of Chrishon’s conversation with the detectives because the tape suggested that Johnson had remained silent in response to accusatory comments made by Pratt and Lloyd. Assuming error, it was harmless.
A.
Before the tape was played for the jury, Chrishon testified that Pratt and Lloyd were present at Chrishon’s house at one point, and that Johnson had been present at a different point. On that basis, defense counsel objected to the tape, contending that Johnson’s silences could not be construed as adoptive admissions since he had not been present when the accusations were made. The objection was overruled, the tape was played for the jury, and the jury was instructed to determine whether Johnson had heard and adopted the statements.
B.
The adoptive admission exception to the hearsay rule applies only if the person accused of the crime had a fair opportunity to hear, understand, and reply to the accusation. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) Since substantial evidence presented at trial (Chrishon’s testimony) established that Johnson was not present at the time of Pratt’s and Lloyd’s accusatory statements (notwithstanding Chrishon’s claim on the tape that all three were present at the same time), there was no real basis for the jury to find that Johnson had an opportunity to respond. Accordingly, the exception does not apply. (Compare People v. Edelbacher (1989) 47 Cal.3d 983, 1011-1012.)
But the error was not prejudicial. Given Johnson’s verbalized admissions to Lloyd, the eyewitness testimony, and the corroborated accomplice testimony as more fully explained in Part I, ante, there is no reasonable likelihood that, absent the admission of the Chrishon tape excerpts, the verdict would have been any different. (People v. Watson, supra, 46 Cal.2d at p. 836.)
III.
We summarily reject Johnson’s related contention that the instruction given on adoptive admissions (CALCRIM No. 357) was prejudicially misleading and incomplete because it did not direct the jury to view the adoptive admissions with caution. CALCRIM No. 357 is entirely consistent with the Supreme Court’s statement of the rule in People v. Riel, supra, 22 Cal.4th at page 1189, which says nothing about cautioning the jurors about adoptive admissions. In any event, CALCRIM 358, which tells the jury how to view the defendant’s express admissions and to decide whether a statement attributed to the defendant was actually made by him, was given -- and it is clear that it is Johnson’s verbalized statements that were critical to his guilt, not his failure to respond to something said by someone else.
IV.
We summarily reject Johnson’s contention that the two errors discussed above, taken together, compel reversal. The trial court’s failure to instruct the jury that the accomplice’s testimony had to be corroborated was plainly harmless because, as noted, the testimony was corroborated by substantial, independent evidence. The court’s only other error, the admission of the purported adoptive admission, was plainly harmless because it was largely irrelevant in light of Johnson’s express admission. Considered together, the errors remain harmless.
It is also worth noting that Chrishon’s failure to tie each statement to a speaker supports the inference that some of the statements he repeated were uttered by Johnson, not Pratt or Lloyd.
V.
Johnson contends the gang enhancement cannot stand because there is no evidence that the crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by the gang as required by section 186.22, subdivision (b). We disagree.
The gang expert’s testimony, Johnson’s admissions, and the admissions of Johnson’s accomplices establish that the three culprits were members of the “Young Bastards Click,” a “subgroup” of the 190 East Coast Crips gang, that they shot their victims in a rival gang’s territory, that Johnson and his cohorts bragged the day after the shooting that they had “busted some Tennis Shoes,” and that Johnson and Lloyd gave Pratt a gun (and Johnson drove the car) so that 12-year-old Pratt could “earn his stripes.” In addition, the gang expert testified about the gang’s primary activities and the other characteristics of gang culture. No more was required. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322-324; People v. Gardeley (1996) 14 Cal.4th 605, 616-617; In re Jose P. (2003) 106 Cal.App.4th 458, 466-467; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.)
VI.
Johnson’s sentence of 90 years to life consists of 25 years to life for the murder, 25 years to life for the firearm enhancement ancillary to the murder (50 years for count 1), plus consecutive terms of 15 years to life for the attempted murder and 25 years to life for the firearm enhancement ancillary to the attempted murder (count 2). Johnson contends, the Attorney General properly concedes, and we agree that the count 2 sentence for the attempted murder should have been life with the possibility of parole (not 15 years to life as imposed), for a total sentence of 75 years to life (instead of 90 years to life). (§ 664, subd. (a).) We will modify the judgment accordingly.
VII.
To preserve the issue for further review, Johnson contends the imposition of consecutive sentences violates the rules announced in Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856. As he recognizes, we are bound by People v. Black (2007) 41 Cal.4th 799 and must reject his argument under the rule of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
DISPOSITION
The judgment is modified by changing the sentence imposed for count 2 from “15 years to life” to life with the possibility of parole, and by reducing Johnson’s aggregate sentence to 75 years to life; as modified, the judgment is affirmed and the cause is remanded to the trial court with directions to issue a corrected abstract of judgment and forward it to the Department of Corrections.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.