Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA314090. Rand S. Rubin, Judge.
Barbara A. Smith, under appointment by Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
BIGELOW, J.
A jury convicted Solomon Johnson of assault with a firearm and found true enhancements for personal use of a handgun and crimes committed for the benefit of a criminal street gang. Appellant contends insufficient evidence supported the conviction and enhancements. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We review the evidence in accordance with the usual rules on appeal. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) On October 18, 2006, Norman Ray was standing outside of his grandmother’s house in Los Angeles, talking with a friend. A black car approached. Ray heard someone say: “What’s up Blood.” Ray’s grandmother’s house was in a neighborhood within the Crips gang territory, and he knew the statement signaled something bad. Ray looked to his left and saw appellant—the passenger in the black car—pull out a chrome revolver and shoot. Ray heard a total of six shots. He was shot in the lower back and left arm, and fell to the ground. Ray heard the car drive away, followed by the sounds of a vehicle collision.
Ray was initially unable to identify the shooter from a six-pack photographic line-up. However, after a few days of reflection, and without seeing the photographs again, Ray contacted the detective working the case and identified appellant’s photograph as that of the man who shot him.
Meanwhile, Charlie McGowan was driving east on Slauson Boulevard, not far from where Ray was shot. The black car carrying appellant and one other man ran into McGowan’s vehicle. The black car stopped momentarily, then sped away. McGowan gave chase for about one half of a mile. Finally the black car stopped. Appellant and another man got out. McGowan wanted to know what they would do about the damage to his car. Appellant pulled a chrome or silver revolver from his waistband and pointed it in McGowan’s direction. Appellant said to the other man, “Casey, let’s get out of here.” The two men ran away into a nearby building.
McGowan led police to the abandoned black car. A search of the car revealed paperwork bearing appellant’s name. Police also found photographs of appellant, pictured with the registered owner of the car and other unidentified individuals. McGowan later identified appellant from a photographic lineup as the man who looked like the driver of the black car.
Trial
At trial, McGowan’s recollection faltered. He indicated he chased the black car, which eventually stopped, and two men got out. McGowan confronted them. The driver said he was sorry but someone was shooting at them and they were trying to get away. The driver then gave McGowan a telephone number, but when McGowan tried calling he discovered it was a wrong number. McGowan was uncertain if appellant was one of the two men he confronted on the day of the accident; he thought appellant looked similar but he could not be 100 percent sure. He indicated if appellant was one of the two men, he was the passenger in the car. McGowan testified the passenger had his shirt rolled up in his hand.
McGowan recalled telling police the passenger could have had a gun in his hand, and conceded he believed the passenger had a gun, but he could not be completely certain appellant was the passenger. McGowan stated the object he thought was a gun was silver colored and he thought he saw the barrel. He initially denied that the gun was ever pointed in his direction, but subsequently claimed he was not sure either way. McGowan said he had forgotten much of what happened and had suffered two diabetic comas since the incident. He admitted he was scared during the confrontation, but said he did not know what caused his fear.
Detective Jeff Martin investigated the case and testified at trial. He interviewed McGowan about one month after the incident. McGowan told Martin one of the suspects removed a gun from his waistband and pointed it in McGowan’s direction. Martin read in reports on the case that McGowan had described the gun as chrome or silver. McGowan identified appellant from a photographic lineup as the driver.
Gang expert Detective Kerry Trip previously had personal contact with appellant and knew him to be a member of the Centinela Park Family Bloods gang. Appellant admitted this fact to Trip, and Trip had seen him with other gang members in the area of Centinela Park in Inglewood. Trip reported that appellant had two tattoos indicating his membership in the gang, and used the moniker “Infant Nut.” Tripp testified the Centinela Park Family Bloods gang was an established criminal street gang whose primary activities include murder, drug sales, and creating an atmosphere of intimidation in the neighborhood.
At trial, Tripp was presented with a hypothetical based on the facts of the case: a car approaches an individual on the street, a person in the car says “what’s up Blood” then fires a number of shots; the car speeds away and gets into a traffic collision; the occupants of the car display a gun to the driver of the other car involved in the collision and drive away. Tripp opined that such activities would be for the benefit of the gang. More specifically, he testified:
“Well, there are at least two people in the vehicle, since the shooter was the passenger. Since that is a gang-typical crime, I’m assuming the driver is also a gang member. Whether he’s a gang member or not, he is participating in a crime which makes him in association with another gang member. And it’s for the benefit of the gang because he [is] saying what’s up Blood, letting the person know that he’s a Blood gang member, and without hesitation just starts shooting at him... [¶]... [H]e has another person with him so now he [has] a witness that can go back to the gang and acknowledge the fact that this person actually did put in work for the gang. So this raises his stature in the gang. This is the kind of crime that also encourages other gang members to commit the same type of crimes because they also want the same acknowledgement that this person got... [¶]... By yelling out what’s up Blood, he’s in an area that’s a Crip area, Rollin’ ‘60s Crip Area. Whether [the victim] ends up being a Rollin’ ‘60’s Crip or not, people talk. People are going to know that Blood members came in their territory, and... committed a crime, a violent crime, disrespecting their neighborhood.”
Appellant was charged with attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664 (count 1)). The information alleged that appellant personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c), & (d)) and caused great bodily injury (§ 12022.7, subd. (b)). He was also charged with assault with a firearm (§ 245, subd. (a)(2) (count 2)). The information further alleged appellant personally used a handgun (§§ 1203.6, subd. (a)(1), 12022.5, subd. (a)), and that both crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)).
All further statutory references are to the Penal Code.
The jury found appellant not guilty on count 1, but convicted him on count 2, and found true that he personally used a handgun and committed the assault for the benefit of a criminal street gang during the commission of the crime. Appellant was sentenced to a total prison term of 17 years, consisting of the mid-term of 3 years on count 2, plus 4 years for the handgun use enhancement, and 10 years for the gang enhancement.
This appeal followed.
DISCUSSION
I. Sufficient Evidence Supported the Jury’s Verdict
Appellant claims there was insufficient evidence to show: (1) that he was involved in an assault upon McGowan; (2) that a gun was involved in the assault, or that he was the person who displayed a gun; and (3) that the assault was committed by gang members for the benefit of the gang. We disagree and find substantial evidence supported the conviction and the true findings on the enhancements.
A. Standard of Review
“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., 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. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” (Zamudio, supra, 43 Cal.4th at p. 357.) This standard similarly applies to our review of gang enhancement findings. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
B. Substantial evidence supported the jury’s conclusions that appellant committed the assault, and that a handgun was involved
Appellant first argues the evidence was insufficient to support a finding that he was even present during the assault. However, the record belies this contention. Ray identified appellant as the man in the black car who shot at him. After being shot, Ray heard the car speed away and then heard a car collision shortly thereafter. McGowan subsequently identified the same black car as the one that collided with his car. Soon after the incident, McGowan told police that appellant and another man got out of the car, and one of them pulled a gun out of his waistband and pointed it in McGowan’s direction. McGowan picked appellant out of a photographic lineup. At trial, McGowan testified appellant resembled the passenger of the car who was holding the gun. This evidence was sufficient to allow the jury to conclude that it was indeed appellant who was present during the assault and committed the assault.
To prove assault with a firearm, the prosecution had to establish: (1) the defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; (2) the defendant did that act willfully; (3) when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (4) when the defendant acted, he had the present ability to apply force with a firearm to a person. (See CALCRIM No. 875.) Appellant’s sole argument is there was insufficient evidence of identity and the jury could not reasonably conclude he committed the assault.
Appellant contends McGowan’s testimony and statements were unworthy of belief due to his confusion, his unwillingness at trial to unambiguously identify appellant as one of the two men in the car, and the inconsistencies between what McGowan originally told police and his trial testimony. However, it was for the jury to determine whether the police accounts of McGowan’s original statements could be believed, and how much weight to give McGowan’s subsequent testimony. Given that soon after the incident McGowan gave police a coherent account of what occurred, including identifying appellant from a photographic lineup, the jury could reasonably find McGowan’s earlier statements trustworthy and conclude appellant committed the assault. In addition, McGowan’s statements were bolstered by Ray’s identification of appellant as the passenger in the car who shot him with a chrome or silver colored revolver only minutes before the car accident, and by the evidence linking appellant to the car itself.
Similarly, there was substantial evidence that a gun was used in the assault, and that appellant displayed the gun to McGowan. Ray identified appellant as having shot him with a chrome revolver minutes before the car collision. McGowan told police either appellant or the other man pulled a gun out of his waistband and pointed it in his direction. At trial, McGowan was less certain, but eventually testified that he saw someone who looked like appellant holding something silver in color that resembled a gun, and that he grew afraid during the confrontation. Even in the midst of his trial testimony in which he avoided certainties and had difficulty recalling past events, McGowan said that appellant looked like the passenger, and that the passenger appeared to have something resembling a handgun.
To prove the enhancement, the prosecution was required to establish that appellant personally used a firearm in the commission of the crime. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1491-1492.)
Moreover, there were reasonable explanations for the inconsistencies in McGowan’s testimony. First, McGowan had memory problems due to two diabetic comas he had suffered since the incident. In addition, Detective Tripp, the gang expert, opined it was common for witnesses to recant their original statements when faced with having to testify against a known gang member. The jury could have accepted either reason to explain the difference in McGowan’s statements to police and his trial testimony. In any event, the evidence led to a reasonable conclusion that appellant pointed a gun in McGowan’s direction. Inconsistent testimony from McGowan does not mandate reversal. (Zamudio, supra, 43 Cal.4th at p. 357; People v. Cuevas (1995) 12 Cal.4th 252, 276 [despite eyewitness’s testimony recanting identification, prior out-of-court identification was substantial evidence sufficient to support conviction].)
Further, appellant’s arguments that it was not logical for the two suspects to stop when McGowan chased them, or that it made no sense for the suspects to give McGowan a false telephone number and display a gun, are simply invitations to re-weigh the evidence. We do not second guess the jury’s determinations of credibility or their resolution of evidentiary conflicts. Substantial evidence supported the jury’s verdict on count 2 and the use of a handgun enhancement.
C. Substantial Evidence Supported the Gang Enhancement Finding
Under section 186.22, subdivision (b)(1), a person 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,” is to suffer additional punishment. (People v. Margarejo (2008) 162 Cal.App.4th 102, 106, 108.) Appellant contends there was no evidence the assault against McGowan was gang-related. We disagree.
Essential to appellant’s contention is the assumption that evidence relevant to the shooting of Ray could not be considered in relation to count 2, since the jury acquitted appellant on count 1. However, the acquittal on count 1 did not prevent the jury from considering evidence of appellant’s involvement in the shooting as it pertained to count 2. As the United States Supreme Court explained in the context of inconsistent verdicts:
“[A] criminal defendant... is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that evidence on another count was insufficient.” (United States v. Powell (1984) 469 U.S. 57, 67 (Powell); People v. Lewis (2001) 25 Cal.4th 610, 656 (Lewis) [accord].)
“An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict.” (Lewis, supra, 25 Cal.4th at p. 656, citing People v. Santamaria (1994) 8 Cal.4th 903, 915, quoting Powell, supra, 469 U.S. at p. 65.)
Appellant does not claim the jury’s verdicts were inconsistent in this case, yet the reasoning of Powell and Lewis remains instructive. The jury may consider all of the evidence introduced at trial in connection with each count, even if it reaches seemingly incompatible results. Since we are unable to determine why exactly the jury found appellant not guilty on count 1, we cannot extrapolate from the acquittal that the jury came to any particular conclusion about the evidence relevant to that count. For example, the trial court did not give an instruction on aiding and abetting. The jury may not have been persuaded beyond a reasonable doubt that appellant was the actual shooter, and without an aiding and abetting instruction, the jurors may not have understood that someone other than the shooter could be equally liable for attempted murder. However, the jury still may have been convinced that appellant was in the black car, participating in and facilitating a gang-related shooting.
Thus, when reviewing the record to determine the sufficiency of the evidence, we review the entire record. (People v. Medina (2009) 46 Cal.4th 913, 919 [focus is on the whole record rather than isolated bits of evidence].) That the jury acquitted appellant on one count does not render evidence relevant to that count unavailable as support for other counts on which the jury convicted.
Considering the record as a whole, there was substantial evidence presented at trial to support a true finding on the gang enhancement. Appellant was a known gang member. He was in a car with another man, in a rival gang’s territory. Someone in the car said, “What’s up Blood,” loud enough for those outside the car to hear. Ray testified this signaled to him that something bad, and gang-related, would happen. Ray’s testimony was supported by that of the gang expert, who testified that such a statement would serve the purposes of letting the victim know a Blood gang member was responsible for the shooting. Ray saw appellant shoot him and heard the car speed away, then he heard a crash. In the midst of the escape, appellant’s car collided with McGowan’s. When McGowan confronted appellant and the other man, appellant displayed a gun in a fashion that caused McGowan fear and allowed the two men to escape without further delay or confrontation. The jury could reasonably conclude that appellant’s display of the gun, on the heels of a gang-related shooting, was for the benefit of his gang in that it enabled appellant’s escape and served to intimidate in a rival gang’s territory. (Cf. In re Ramon T. (1997) 57 Cal.App.4th 201, 208 [assaults and batteries committed to free a gang member from the grasp of an officer effecting an arrest were committed with requisite intent under section 186.22].)
In People v. Morales (2003) 112 Cal.App.4th 1176, 1198, the court noted, “Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.” But in that case there was no evidence of such a “frolic and detour,” where the defendant acted in association with gang members in committing the charged crimes. (See also People v. Martinez (2008) 158 Cal.App.4th 1324, 1332-1333.) Similarly, the evidence in this case allowed the jury to find the assault on McGowan was not a “frolic and detour unrelated to the gang.” Rather, the jury could reasonably conclude the assault was part and parcel of a course of gang-related criminal conduct that began with the Ray shooting.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.