Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF100124A. Louis P. Etcheverry, Judge.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Tennant Nieto and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Three times, juries have found Glen Maurice Johnson guilty of second degree murder, conspiracy to commit murder, and accessory to murder for his role in a shooting in Bakersfield on September 20, 2002. On appeal after his first trial, we reversed the judgment and ordered a new trial because the court’s erroneous instruction on reasonable doubt impermissibly lowered the prosecution’s constitutional burden of proof. (People v. Johnson (2004) 119 Cal.App.4th 976 (Johnson I).) On appeal after his second trial, we reversed the judgment and ordered a new trial because the prosecutor’s withholding of discovery about his sole eyewitness violated Johnson’s constitutional right to due process. (People v. Johnson (2006) 142 Cal.App.4th 776 (Johnson II).)
On our own motion, we have taken judicial notice of the records in both prior appeals.
On appeal after his third trial, Johnson challenges the sufficiency of the evidence, the court’s evidentiary rulings and instructions, the prosecutor’s conduct, his attorney’s competence, the propriety of convictions of both second degree murder and accessory to murder, and three sentencing enhancements. We strike those three enhancements from the judgment but otherwise affirm the judgment.
BACKGROUND
On March 18, 2008, the district attorney filed an amended information charging Johnson with second degree murder (count 1; Pen. Code, § 187, subd. (a)), conspiracy to commit murder (count 2; §§ 182, subd. (a)(1), 187, subd. (a)), and accessory to murder (count 3; §§ 32, 187, subd. (a)) on September 20, 2002. In each count, the information alleged the arming of a principal with a firearm (§ 12022, subd. (a)(1)) and the service of a prior prison term for possession of cocaine base for sale (§ 667.5, subd. (b); Health & Saf. Code, § 11351.5).
Later statutory references are to the Penal Code except where otherwise noted.
On March 27, 2008, a jury found Johnson guilty as charged and found the arming allegations true in all counts. At a bifurcated trial on April 16, 2008, the court found the prior prison term allegations true in all counts. On May 15, 2008, the court imposed an indeterminate 25-to-life term on the conspiracy to commit murder in count 2 consecutive to both a one-year term on the arming enhancement in count 2 and a one-year term on the prior-prison-term enhancement in count 3 and imposed and stayed sentence on all other substantive crimes and enhancements.
DISCUSSION
1. Sufficiency of the Evidence
Johnson claims insufficiency of the evidence. The Attorney General argues the contrary.
Our role on a challenge to the sufficiency of the evidence is limited. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).) Our duty is to review the whole record in the light most favorable to the judgment, to presume in support of the judgment every fact a reasonable trier of fact could reasonably deduce from both circumstantial and direct evidence, and to determine whether the record discloses substantial evidence – credible and reasonable evidence of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).)
On a due process challenge to the sufficiency of the evidence, the “critical inquiry” is “to determine if the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318.) That inquiry does not require the reviewing court to “‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’” but only to ask itself “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Id. at pp. 318-319, italics in original.)
Our inquiry begins with a review of the record by the usual rules on appeal for a challenge to the sufficiency of the evidence. (Ochoa, supra, 6 Cal.4th at p. 1206.) After an evening together at a dance club, Lamar Rufus and his cousin Curtis Rufus drove to a convenience store and parked their cars nearby. Lamar stayed outside while Curtis went inside to buy some water. After Curtis saw people outside “scurrying around as if they were leaving hastily, ” he and Lamar started back to their cars. In an alley along the way, Curtis saw Johnson and Lenix walking toward them. He knew Johnson, with whom he had played basketball a few times and with whom Lamar had attended school. Johnson looked as if “he had had a couple of drinks, ” so Curtis, on the way by, “patted him on the chest, hey man, wake up.”
In the interests of brevity and clarity, later references to the cousins Rufus will be by first names only. References to other witnesses will be by last names.
Once Johnson and Lenix were behind Curtis and Lamar, Curtis heard a metallic object hit the ground. Lamar turned around and told him Lenix “dropped a.38.” Curtis turned around and saw Lenix reach down and put something in his waistband. Curtis said, “Let’s go.” As soon as Curtis and Lamar got back to their cars, Deshonta Grayson was standing there telling them that some “East Side” people were “tripping.” That made no sense to Curtis, since nobody he knew there was a gang member. Again, he said, “Let’s go.” As he drove away, he saw Grayson open Lamar’s car door. After he turned around a corner, he saw that Lamar’s car was not behind him. He backed up and saw that Lamar was still talking to Grayson.
Suddenly Curtis saw “Lenix walk over and fire two, three shots” into Lamar’s head. Lamar instantly fell in front of his car. Grayson and Lenix “hesitated for a split second” and started walking away. Curtis started driving toward them, intending to hit them with his car. Lenix began firing the gun in his direction. Grayson ran past his car. Another car pulled out of a connecting alley and stopped. As Lenix opened the passenger door, the car’s dome light and Curtis’s headlights illuminated the interior of the other car. Curtis saw Johnson at the wheel. Lenix got in, and Johnson drove away. In court, Curtis testified there was no doubt in his mind that Johnson was the driver of the other car.
Johnson’s argument has two facets. The first is his characterization of Curtis’s testimony as “physically impossible and inherently improbable.” He points out that a convenience store videotape shows neither the car’s dome light nor Curtis’s headlights illuminating the interior of the other car. He asserts that the distance was too great for Curtis to have seen the driver of the other car. He hypothesizes that even if “Curtis could have gotten a glimpse of the driver, he could not have focused on the driver’s face given the stress he was under.” Finally, he notes that at Johnson’s third trial (but at neither of his other trials) Curtis testified that in a videotape with different camera angles than the one shown at trial he saw Johnson getting into the driver’s seat of the other car.
The jury, however, resolved against Johnson the issue of Curtis’s credibility as a witness. Issues of witness credibility do not affect the rule of appellate review that “when the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court.” (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497 (Gustavo M.).)
Johnson, however, argues that the eyewitness in Gustavo M. “had close contact with the culprit; she spoke with him and even studied his face for distinctive marks so he could later be found.” That eyewitness, however, identified a stranger. Curtis identified an acquaintance, a person with whom he used to play basketball and his cousin used to attend school. If there is substantial evidence of eyewitness identification, even if slight in comparison with contradictory evidence, the judgment will be affirmed. (Gustavo M., supra, 214 Cal.App.3d at p. 1497.) Another factor here, as in Gustavo M., is “‘the inescapable fact of in court eyewitness identification. That alone is sufficient to sustain the conviction.’” (Ibid., quoting People v. Hughes (1969) 271 Cal.App.2d 288, 291.) Although an appellate court can overturn a judgment if supporting evidence “was ‘inherently improbable, ’ such a finding is so rare as to be almost nonexistent.” (People v. Ennis (2010) 190 Cal.App.4th 721, 728.) On the record here, Johnson fails to persuade us that his is so rare a case.
The second facet of Johnson’s argument is, “even if [he] is wrong and there is substantial evidence that he was the driver of the car in which the killer fled the crime scene, ” there is an insufficiency of the evidence “that the killer gave him advance notice of his plan to kill Lamar or that [Johnson] entered into any conspiracy to murder Lamar.” He posits alternative scenarios that, even if a conspiracy did exist, he “may only have given Lenix his word that he would help Lenix flee after Lenix killed someone other than Lamar” or “that he would help Lenix flee after Lenix committed some crime other than and lesser than murder.”
“A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416.) Circumstantial evidence often is the only means of proof. (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 999.) Since proof of an express agreement to commit an offense is not necessary, evidence of a conspiracy is sufficient if the conduct, relationship, interests, and activities of the alleged conspirators support an inference of a tacit mutual understanding to commit a crime. (People v. Cooks (1983) 141 Cal.App.3d 224, 311.)
That is the state of the record here. Shortly before the killing, Johnson and Lenix walked down the alley together. After Johnson and Lenix walked past Curtis and Lamar, Lenix dropped a.38 onto the ground, reached down, and put something (inferentially the gun) into his waistband. Once Curtis and Lamar got back to their cars, Curtis drove off. After Grayson engaged Lamar in conversation, Lenix walked over and shot him two or three times in the head. Moments later, Johnson drove a car into the alley, Lenix got in, and Johnson drove him away. The jury found two overt acts true. On that record, the evidence is sufficient to support the inference of an express or tacit mutual understanding to murder Lamar. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)
In summary, a sufficiency of the evidence is in the record of second degree murder, conspiracy to commit murder, and accessory to murder. Johnson’s argument is basically a request that we reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)
2. Criminal-Street-Gang Evidence
Johnson argues that the improper admission of criminal-street-gang evidence prejudiced him. The Attorney General argues the contrary.
At trial, the gang expert testified, on the basis of Johnson’s gang-related tattoos, associations with other gang members, statements to law enforcement officers over a period of several years, and photographs of him with other gang members, that he was an active member of the Country Boy Crips gang. He opined that respect from members of the same gang, of rival gangs, and of the community is absolutely vital to gang members and noted that loyalty and trust are the major components of respect. Those who have been active gang members for several years, he testified, are more respected than those who have just joined recently. He opined that the consequences of disrespect are higher inside gangs than outside gangs and that gang members “talking about being respected” are “actually talking about being feared.”
On that record, Johnson argues that the gang evidence was improper propensity evidence “not admissible to show identity, motive, intent, conspiracy or relationship.” The gang expert’s testimony, he asserts, implied he had not only “a propensity to commit, approve, or aid and abet crimes” but also “a history of committing violent crimes.” Since “no permissible inferences could be drawn from evidence of [his] gang membership, ” he argues, “he was denied due process.” Finally, he asserts that the gang expert’s “opinion evidence was erroneously admitted, ” that “the prosecutor presented gang evidence the court had excluded, ” and that “the limiting instruction was erroneous.”
“California courts have long recognized the potential prejudicial effect of gang evidence.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 (Samaniego).) Our Supreme Court consistently “has condemned the introduction of such evidence ‘if only tangentially relevant, given its highly inflammatory impact.’” (Ibid., quoting People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “Because gang evidence creates a risk that the jury will infer that the defendant has a criminal disposition and is therefore guilty of the charged offense, ‘trial courts should carefully scrutinize such evidence before admitting it.’” (Samaniego, supra, at p. 1167, quoting People v. Williams (1997) 16 Cal.4th 153, 193.)
Here, the record shows the court did just that. Before trial, both parties filed motions in limine on the criminal-street-gang evidence. Johnson’s motion anticipated that “gang evidence will be used to create a motive not otherwise suggested by the evidence” and that “the prosecution will attempt to use the gang expert’s opinions as substantive, and substitute, evidence of the elements of the crimes for which [he] is charged.” His motion sought clarification of the evidence the prosecutor intended to admit. The prosecutor, in a motion filed shortly afterward, sought to admit the evidence of Johnson’s membership in the County Boys Crips gang on the issue of the specific intent of the murder, the conspiracy to commit murder, and the accessory to murder.
At a hearing on the motions, the court asked the prosecutor for an offer of proof. He said he intended to ask “standard foundational questions regarding [the gang expert’s] training and background with respect to gangs, how many times he’s testified as a gang expert and so forth” and, after “a generic overview of gangs in Bakersfield, ” to “focus in on the Country Boy Crips.” Then, he said, he intended to ask about his investigation of Lenix’s and Johnson’s gang backgrounds, “gang related tattoos, ” “FI [field interview] cards, ” “police reports, ” and “prior bookings claiming gang affiliation or gang housing.”
The court opined, “I have not seen anything objectionable right now, ” and asked the defense for comment. “I object to the whole topic, ” Johnson’s attorney replied. The court overruled the objection and asked him for specifics. After he elaborated, the court invited the prosecutor to comment. He acknowledged that he did not know “the motive behind the murder” and argued “that gang evidence is relevant to show the existence of a conspiracy to get into the relationships between the people involved in the crime.” The court tentatively ruled the evidence of Johnson’s gang membership admissible on the specific intent requirement of each crime but “only for a limited purposed to show he is a member of the gang. And what gangs do is relevant.” The court ruled inadmissible as more prejudicial than probative the evidence of his prior criminality and of a gang-related shooting.
After an evidentiary hearing at which the gang expert testified, the prosecutor emphasized (as a convenience store videotape showed) that Johnson and Lenix “paused briefly for 30 or 45 seconds” and had “some sort of conversation” before Lenix walked toward Lamar and Johnson walked toward the car in which he later drove Lenix from the scene of the shooting. He argued that if Lenix talked with Johnson without mentioning “what he was about to do to Lamar” that would be “incredibly disrespectful” of Johnson “in a gang situation.” Johnson’s attorney replied that “nobody has any idea why” Lamar died in a “motiveless” shooting and that the prosecutor was attempting to “bootstrap” a “relationship, ” “intent, ” and “knowledge” that “must have existed” for no other reason than that “they are gang members.” The court ruled inadmissible as more prejudicial than probative not only the gang expert’s opinion that Johnson was a shot caller but also the evidence of another gang-related shooting. The court deferred a final ruling on the admissibility of his gang membership.
After argument by counsel at a continued hearing on the motions, the court ruled admissible as more probative than prejudicial the evidence of Johnson’s membership in the Country Boys Crips. The court found the evidence relevant not only on intent but also on identity and motive. The ruling expressly permitted “talk about respect and loyalty and whatever friendship is” but disallowed evidence of “any criminal activities.”
“Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.” (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) “Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related.” (Samaniego, supra, 172 Cal.App.4th at p. 1167.) Even in cases “not involving the gang enhancement, ” like the one before us, “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation – including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like – can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Because “motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.” (People v. Lopez (1969) 1 Cal.App.3d 78, 85.) Indeed, “the decision of a trial court to admit expert testimony will not be disturbed on appeal unless a manifest abuse of discretion is shown.” (People v. Roberts (1992) 2 Cal.4th 271, 298.)
Johnson relies on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) to argue that the gang expert in his case “effectively informed the jury how [he] believed the case should be decided.” The gang expert in Killebrew testified that “when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652.) His testimony, which was not only “an improper opinion on the ultimate issue” but also “the only evidence offered by the People to establish the elements of the crime, ” “did nothing more than inform the jury how [he] believed the case should be decided.” (Id. at p. 658.)
Here, the gang expert opined that Johnson was a member of the Country Boy Crips and testified about the importance of respect and the consequences of disrespect to gang members generally. On that evidentiary foundation, Johnson argues that the “prosecutor used the [gang] expert’s opinion testimony – and no other evidence whatsoever – as the basis for his argument that Lenix told [Johnson] he was about to kill Lamar when he and [Johnson] talked in the alley; Lenix must have done so; not to have told [Johnson] and secured his approval would have been an act of disrespect Lenix would not commit.” (Italics added.) Johnson conflates the gang expert’s testimony with the prosecutor’s argument. “Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime or the perpetrator’s intent.” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, italics added.) Nor does Killebrew preclude the prosecutor from arguing inferences from the gang expert’s testimony.
Johnson mounts an additional challenge to the criminal-street-gang evidence. He contends the prosecutor presented evidence in violation of the pretrial ruling that barred evidence of “any criminal activities.” He cites to the record of a single item of evidence, the gang expert’s answer (“150”) to a foundational question whether he had “investigated any gang related shootings in the past.” To the prosecutor’s next question, asking about “how many actually homicides, gang related homicides?, ” the court sustained Johnson’s objection, so nothing else went into evidence. Later, Johnson made, and the court denied, a motion for a mistrial on the basis of the single answer in evidence.
“Surprisingly though, ” the court noted, “we’ve had a lot of evidence introduced by both sides with regards to gang membership that go [sic] beyond gang membership, ” “way beyond the foundation questions, ” all of which came in “without objection.” Out of an abundance of caution, the court asked both parties to proffer a limiting instruction on gang membership, the final sentence of which Johnson now argues erroneously allowed the jury “to infer that a gang member was a person of bad character with a predisposition to commit crimes.”
That final sentence reads, “You may not conclude from this evidence that the people alleged to be gang members are persons of bad character, or that they have a predisposition to commit crimes.” (Italics added.) To conclude from evidence, he argues, is different than to use evidence to reach a conclusion. The jury was “likely” to interpret the instruction to allow using “the evidence when deciding whether he had a propensity to crime, ” he contends, especially since the jury could still see the original text, “You may not use this evidence to infer that any of the people alleged to be gang members are persons of bad character, or that they have a predisposition to commit crimes.” (Italics added.)
The sentence Johnson challenges is a minor modification of the final sentence of CALCRIM No. 1403, “You may not conclude from this evidence that the defendant is a person of bad character or that (he/she) has a disposition to commit crime.” Case law has approved CALCRIM No. 1403. (Samaniego, supra, 172 Cal.App.4th at pp. 1167-1169.) Johnson’s argument “is the legal equivalent of the theological debate about how many angels can dance on the head of a pin.” (People v. Robertson (2004) 34 Cal.4th 156, 190, overruled on another ground by People v. Chun (2009) 45 Cal.4th 1172, 1201.)
Evidence Code section 352 gives the court the discretion to admit or exclude evidence after a balancing of the prejudice and the probative value. On appeal, our duty is to apply the deferential abuse of discretion standard of review. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) The prejudice that the statute seeks to avoid is not the damage to a defense that naturally flows from highly probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.” (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on another ground by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The gang evidence here did not prejudice Johnson in that sense.
Since we reject the statutory premise of Johnson’s constitutional argument, we reject his due process claim, too. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) The essential question, of course, is “whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair.” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.) The record answers that question in the negative.
3. Conduct of Prosecutor: Second Trial
Johnson claims that the withholding of discovery by the prosecutor at his second trial requires reversal without a retrial under the state double jeopardy clause. The Attorney General argues the contrary.
On appeal after his second trial, Johnson argued there was a reasonable probability that the result of his trial would have been different had the prosecutor not withheld from him police reports that he had never seen and that the prosecutor had never disclosed to him with information about Curtis’s involvement in a shooting at a different convenience store after his first trial, but before his second trial. (Johnson II, supra, 142 Cal.App.4th at p. 779.) On a record showing the prosecutor violated Johnson’s constitutional right to due process by withholding discovery about Curtis, the prosecution’s sole eyewitness, we reversed the judgment and ordered a new trial. (Id. at p. 786.)
Before his third trial, Johnson filed a motion to enter a plea of once in jeopardy, to which the prosecutor filed an opposition. The court allowed Johnson to enter the plea and, pursuant to stipulation, deferred further consideration until the presentation of all the evidence, at which time Johnson waived “his right, if there be any, ” to jury consideration of the plea. After the jury’s guilty verdicts, he filed points and authorities in support of the plea, to which the prosecutor filed an opposition. After hearing argument, the court denied his request for a finding of once in jeopardy and denied his motion to dismiss.
The state double jeopardy clause prohibits a retrial “when the prosecution, believing (in view of events that occurred during trial) that a defendant is likely to secure an acquittal at that trial, knowingly and intentionally commits misconduct in order to thwart such an acquittal.” (People v. Batts (2003) 30 Cal.4th 660, 666 (Batts).) A retrial is barred “only if a court, reviewing all of the circumstances as of the time of the misconduct, finds not only that the prosecution believed that an acquittal was likely and committed misconduct for the purpose of thwarting such an acquittal, but also determines, from an objective perspective, that the prosecutorial misconduct deprived the defendant of a reasonable prospect of an acquittal.” (Ibid.)
In Sons v. Superior Court (2004) 125 Cal.App.4th 110, we “did not fully address” the issue “left open” in Batts of “covert misconduct during the trial – that is, misconduct intended to prevent an acquittal the prosecutor perceives as likely – that results in a conviction rather than a mistrial solely because the misconduct was discovered after the verdict.” (Ibid.) In Sons, petitioner sought a writ of prohibition barring a retrial on the ground that “the prosecutor knowingly failed to disclose material exculpatory evidence in the first trial.” (Id. at p. 113.) Denying relief, we addressed only “misconduct intended to secure a conviction, not to prevent an acquittal.” (Id. at p. 121.) Johnson argues that the record here squarely presents the issue left open in Batts.
Since Johnson seeks relief on the basis of the state double jeopardy clause, we note the state standard of review of a claim of prosecutorial misconduct. “Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial.” (People v. Cook (2006) 39 Cal.4th 566, 606 (Cook), italics added.) If he is to find refuge in the issue that Batts “left open” and that Sons “did not fully address, ” he has the burden of showing that the prosecutor committed “covert misconduct” that he “intended to prevent an acquittal” that he “perceive[d] was “likely.” (Sons, supra, 125 Cal.App.4th at p. 121, italics added.)
On the issue of whether the prosecutor’s withholding of discovery was “deceptive or reprehensible” and “intended to prevent an acquittal” that he “perceive[d] was likely, ” we turn to the record. (Cook, supra, 39 Cal.4th at p. 606; Sons, supra, 125 Cal.App.4th at p. 121 .) In his opposition to Johnson’s motion to dismiss, the prosecutor characterizes as “inadvertent” his failure to give Johnson’s attorney a copy of the report about the other shooting. The declaration he attaches to his opposition states he gave a copy to Lenix’s attorney but not to Johnson’s attorney, whose case was on appeal at the time, and by the time we reversed the judgment in Johnson I and Johnson came back to Kern County for retrial he had simply “forgotten about” the other shooting eight months earlier.
At the hearing on Johnson’s motion to dismiss, the prosecutor commented that “it did not occur to me during the 2005 trial that [his attorney] did not have that report.” He observed that Lenix’s attorney, who did have that report, conducted an “extremely brief” cross-examination of Curtis, consisting, “perhaps, of two or three questions” on the basis of that report. (Italics added.) “There was nothing about that report, ” he argued, “that is so glaring that would lead me to think, well, my goodness, why isn’t [Johnson’s attorney] going into it or anything of that sort.”
With commendable candor, Johnson’s attorney stated at the hearing, “I accept [the prosecutor’s] representation that it was an oversight and it was inadvertent.” He said he was “not making any accusations of willful malfeasance prior to that trial. I can’t do so. I don’t have any support for such accusations.” Even so, he argued, “it must be painfully apparent that I didn’t have that information at some point.” He asserted that since Curtis was not arrested for carrying a concealed weapon or for lying to police officers there was “significant evidence that he was committing crimes” but that he “got special treatment.” He posited the theory that “no reasonable prosecutor in that posture could have possibly gone through that trial without figuring out I didn’t have that material.”
In denying Johnson’s motion to dismiss, the court noted he was “asking the court to speculate and provide support for accusations that [he] concedes he does not have.” That is the crux of his dilemma now. Even after discovery of the report about the other shooting, the jury at his third trial found him guilty of second degree murder, conspiracy to commit murder, and accessory to murder just as the jury at his second trial did without that report. On the record before us, he fails to show the prosecutor’s withholding of discovery was “deceptive or reprehensible” and “intended to prevent an acquittal” that he “perceive[d] was likely.” (Cook, supra, 39 Cal.4th at p. 606; Sons, supra, 125 Cal.App.4th at p. 121.)
4. Conduct of Prosecutor: Third Trial
Johnson argues that the prosecutor committed misconduct at his third trial by letting the sole prosecution eyewitness lie on direct examination and evade ineffectual direct examination. The Attorney General argues the contrary.
At all three of Johnson’s trials, juries saw convenience store videotapes. Some, Johnson notes, “showed the inside of the store with a clerk and customers moving about.” Others, he observes, “showed [the store’s] gas pumps with vehicles and people moving about.” He argues that the most important videotape depicts the alley where the shooting occurred but that no videotape at any of his three trials shows “the alley from which the supposed getaway car emerges” or “the getaway car” either when “parked” or when “its driver got into the driver’s seat.”
At Johnson’s third trial, the jury saw a videotape showing, as Curtis testified on direct examination, that he and Lamar walked down the alley, Johnson and Lenix walked down the alley, Lenix appeared to bend over and pick something up, Grayson walked in the direction of Lamar’s car, Johnson walked in one direction as Lenix walked in the opposite direction, the headlights of a car went on, and Lenix got into the car, which left the area. (Peo. Exh. 5.)
On cross-examination, Curtis opined that the “fuzzy” videotape was of “poor quality” so “you can’t really zoom in and see people’s faces.” He then testified about “two people that got into the car on the video, the first one was Glen Johnson, the second one was Arthur Lenix.” Asked, “Are you saying the video shows the driver getting into the car?, ” he answered, “You can see him walk over and get into the vehicle, yes, on the video.” Asked, “Are you saying it shows the person actually getting into the car? Or does it just show somebody walking in that direction?, ” he replied, “I have seen the video with the person getting into the car, yes.” Asked, “Where is that video?, ” he answered, “I don’t know. But I have seen one. It was different than the video that was shown today. I have seen this video before, but there’s another one that is a little more clearer than that one.” Asked, “Are you aware of another video that shows that alley?, ” he replied in the affirmative, testifying he told a detective he saw one on May 20, 2002. “It was one that’s a little more clear that didn’t have the lines and the numbers on it, ” he added.
On that record, Johnson argues that “Curtis lied” when he testified he saw a videotape showing Johnson getting into the getaway car. “There was no such video, ” Johnson claims. “Had there been such a video, it would have been played at [his] first, second and third trials.” The prosecutor, he argues, “knew there was no such video” and “knew Curtis’s testimony about seeing such a video was false. [He] knew these things, ” he claims, because he was the prosecutor “at each of [Johnson’s] trials, at each of Lenix’s trials, at the preliminary hearing for [Johnson] and at the preliminary hearing for Lenix.” Despite that, he argues, quoting United States v. LaPage (9th Cir. 2000) 231 F.3d 488, the prosecutor “‘sat silently as his witness lied, and sat silently as his witness evaded defense counsel’s ineffectual cross-examination.’” (Id. at p. 492.)
The centerpiece of Johnson’s argument is Napue v. Illinois (1959) 360 U.S. 264, which held that the failure of a prosecutor to correct a witness’s testimony he knew to be false, even though the prosecutor did not solicit the falsity, and even though the falsity went only to the credibility of the witness, was a due process denial requiring reversal of the judgment since the falsity may have affected the outcome of the trial. (Id. at pp. 265-272.) People v. Dickey (2005) 35 Cal.4th 884, he adds, applied the rule, “When the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury, ” but affirmed the judgment since there was “no reasonable likelihood the false impression created by [the witness’s] testimony could have affected the judgment.” (Id. at pp. 909-910, italics in original.)
The fatal flaw in Johnson’s argument is his failure to show the prosecutor knew or should have known Curtis’s testimony was false or misleading. He notes, for example, the court asked his attorney, at his second trial, if a defense exhibit was a “conglomerate of all of the videos taken at the scene on the date in question, ” his attorney answered “yes, ” and the prosecutor “did not disagree.” That, he argues, shows the prosecutor “implicitly acknowledged” that “there were no others.” (Italics added.) That is conjecture, not proof. The prosecutor might have been taking notes or reviewing his file at that moment and might not have even heard the question and answer on which Johnson now relies.
Finally, even if Curtis was wrong about seeing another videotape, Johnson fails to show how that aspect of his testimony could have affected the judgment. The videotape the jury saw at trial corroborated other aspects of his testimony. In argument to the jury, his attorney vigorously challenged Curtis’s credibility. Even without the testimony he calls a lie, the juries at both his first and second trials found him guilty of second degree murder, conspiracy to commit murder, and accessory to murder just as the jury at his third trial did. His argument is meritless.
Our holding moots the Attorney General’s argument that Johnson forfeited his right to appellate review by failing to object and seek an admonition in a timely manner.
5. Assistance of Counsel
Johnson claims ineffective assistance of counsel. The Attorney General argues the contrary.
The right to counsel protects the due process right to a fair trial not only by guaranteeing “access to counsel’s skill and knowledge” but also by implementing the constitutional entitlement to an “‘ample opportunity to meet the case of the prosecution.’” (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) To establish ineffective assistance, the defendant must make a showing that counsel’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” of a “reasonable probability” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.)
While professing not to question “the skill or the dedication” of his attorney, Johnson argues that two categories of omissions establish ineffective assistance. First, he says, his attorney “failed to produce evidence that no video showed the car when it was parked or anyone getting in the parked car, ” failed to obtain “a stipulation that no such video existed, ” and failed to elicit from a detective “an admission that no such video existed.” Had his attorney done so, he argues, the evidence that Curtis “lacked veracity or lacked the capacity to perceive events or store or retain memories properly would have undermined the prosecutor’s case and prevented [his] conviction.” We disagree.
If the record fails to show the reason for an attorney’s action or inaction, our duty is to affirm the judgment unless there could be no satisfactory explanation. (People v. Anderson (2001) 25 Cal.4th 543, 569.) Here, the record not only fails to show why Johnson’s attorney did not produce that evidence, obtain that stipulation, or elicit that admission but also invites the reasonable inference that doing so could have harmed the defense by drawing inappropriate attention to the possible existence of a videotape more prejudicial than the one the jury saw at trial. (See People v. Johnson (1993) 6 Cal.4th 1, 50, criticized on another ground by People v. Rogers (2006) 39 Cal.4th 826, 879.) The defendant has a duty to show that the challenged act or omission was not attributable to a tactical decision that a reasonably competent and experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) Johnson fails to make the requisite showing.
Second, Johnson argues, his attorney “failed to ask the court to strike certain overt acts and preclude proof on acts for which [he] had been acquitted.” He challenges one overt act the court dismissed by stipulation at his first trial, three overt acts the jury found not true at his second trial, and eight overt acts his attorney did not ask the court to strike at his third trial on the grounds that four occurred before the conspiracy, one constituted the underlying crime, and three occurred after the underlying crime. He argues that if his attorney had sought to strike all of those overt acts from the information, the jury would not have received the “prejudicial evidence” that there were four conspirators, not two, and that Lenix tried to kill Curtis, too, and would not have received “a written summary of the prosecutor’s theory of the case” that was “an annotated roadmap to conviction.”
As we rejected Johnson’s argument about the videotape omissions solely on the issue of counsel’s performance, so we reject his argument about the overt act omissions solely on the issue of prejudice. (See Strickland, supra, 466 U.S. at p. 697.) Even if the court had stricken all the overt acts he now challenges, two would have gone to the jury. The jury found both true. The law, however, requires only one. (People v. Russo (2001) 25 Cal.4th 1124, 1135; §§ 182, subd. (b), 184.) To establish prejudice, Johnson has a duty to make an affirmative showing of a reasonable probability, sufficient to undermine confidence in the outcome, that but for his attorney’s unprofessional errors the result of the proceeding would have been different. (In re Sixto (1989) 48 Cal.3d 1247, 1257, citing Strickland, supra, at p. 694.) His entirely speculative arguments fail to make the requisite showing. (See Strickland, supra, 466 U.S. at pp. 684-694, 697; Ledesma, supra, 43 Cal.3d at pp. 216-218.)
6. Admission of Letter
Johnson argues that the admission of an improperly authenticated letter prejudiced him. The Attorney General argues the contrary.
At a hearing on a defense motion in limine “to clarify and limit gang evidence, ” Johnson’s attorney argued that a letter to which the gang expert referred in his summary of evidence was inadmissible. Seized in 1997 and “addressed to Mobe, who I guess is their theory for the nickname of Arthur Lenix, from Baby G, which is what they think my client’s name is, ” he characterized the document as an “unsubstantiated letter seized from a third person using nicknames.” He argued that the use of the letter as “an admission that he used to be a gang member” would be a confrontation clause violation (Crawford v. Washington (2004) 541 U.S. 36 (Crawford)) and improper opinion by a gang expert (Killebrew) with more prejudice than probative value (Evid. Code, § 352.)
The court opined that Crawford was inapplicable “to the admission of hearsay evidence in the form of a gang expert’s conversations with gang members in which they identified the defendant as a gang member.” The court opined that if the prosecutor used the letter solely to show “a link between Mr. Johnson and Mr. Lenix” and not “get into the content that it involved a shooting” then Killebrew was inapplicable since the letter was not “expert testimony on a specific individual’s subjective knowledge and intent.”
The prosecutor characterized the letter as admissible circumstantial evidence of not only the relationship between Johnson and Lenix “as far back as five years” but also of the existence of the conspiracy. He emphasized that Johnson (not a third person) was the person who was in possession of the letter, the content of which was “a gang related shooting.” The content of the letter, he represented, was “a gang related shooting” of “a gentleman by the name of Yancy Scott.” The letter was “not the sort of thing, ” he argued, that “a non-gang member” would “logically have in his possession” but rather the sort of correspondence that gang members frequently exchange.
Johnson’s attorney characterized the prosecutor’s last argument as “precisely the danger” the evidence at issue posed but observed that if the gang expert’s testimony were admitted Johnson’s gang membership “won’t be an issue, anyway.” He stated that the prosecutor wants to use “the officer’s opinion of the letter as substantive evidence of a conspiracy” and “doesn’t want to use [the letter] to establish that [Johnson] is a gang member.” Disagreeing, the court stated “that’s all the expert can use it for.” Since the letter was not at the hearing, the court issued a tentative ruling, solely on the basis of the representations of counsel, admitting the letter “from Baby G, which is the defendant’s moniker, to Mobe, which is Arthur Lenix’s moniker, ” and prohibiting the admission of the content of the letter. The court secured a promise from the prosecutor to “get a copy of that letter” to Johnson’s attorney over the lunch recess and invited him bring to another motion if he were to “see something in that letter.”
On that record, Johnson argues that the prosecutor produced “no evidence” that “the letter was found in [his] possession” or that “[he] had the nickname ‘Baby G’” or (even if his nickname was “Baby G”) that he was “the person who signed ‘Baby G’ to the letter.” Since the applicable law is straightforward, no witnesses testified at the hearing, and the letter was not in evidence at the hearing, his argument has superficial merit. (See People v. Marshall (1996) 13 Cal.4th 799, 832 (Marshall); Evid. Code, §§ 403, subd. (a)(3), 1400, 1401, subd. (a).) Yet the record shows that the court and counsel resolved the issue on the basis of representations by counsel and that the court invited Johnson’s attorney to raise the issue anew after reviewing the letter. Johnson cites to nothing in the record showing any later challenge to the court’s ruling, whether by motion, objection, or otherwise. (Cf. Cal. Rules of Court, rules 8.204(a)(1)(C), 8.360(a).)
Even so, in the interest of judicial efficiency, we assume, without deciding, the court committed an abuse of discretion by admitting the letter. We turn, then, to the issue of whether Johnson was prejudiced. At trial, the gang expert testified only that a letter from Johnson “addressed to Mobe, which is the street name for Arthur Lenix, ” was seized from Johnson by a police officer in 1997, that Johnson refers to himself “as a Big Homie, ” which in gang culture describes “more senior gang members, ” and that the letter, signed “much love and respect, ” was like “numerous letters to gang members” showing that “gang members view themselves as brothers oftentimes and they do love each other and they do respect each other much the way real brothers would.”
In our analysis of Johnson’s prejudice argument, we note the limited purpose for which the court admitted the letter, the limited scope of the gang expert’s testimony about the letter, and our rejection of Johnson’s arguments challenging not only the sufficiency of the evidence but also the admission of the criminal-street-gang evidence. (Ante, parts 1 & 2.) Taking all of that into account, we conclude that Johnson fails to persuade us of a reasonable probability that the letter affected the outcome of the trial. (Marshall, supra, 13 Cal.4th at p. 833, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
7. Sua Sponte Instruction
Johnson claims that the court’s failure to instruct sua sponte on voluntary manslaughter and conspiracy to commit voluntary manslaughter as lesser included offenses prejudiced him. The Attorney General argues the contrary.
“A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter.” (People v. Barton (1995) 12 Cal.4th 186, 199 .) Analogously, conspiracy to commit voluntary manslaughter is a lesser included offense of conspiracy to commit murder. (People v. Horn (1974) 12 Cal.3d 290, 295, overruled on another ground by People v. Cortez (1998) 18 Cal.4th 1223, 1237.) A defendant guilty of voluntary manslaughter either “acts in a ‘sudden quarrel or heat of passion’” or “kills in ‘unreasonable self-defense.’” (Barton, supra, at p. 199.) Johnson seeks refuge in the former, not the latter, category of voluntary manslaughter.
Johnson argues that he “relied on the defenses of misidentification and alibi, not provocation and heat of passion, ” but since the latter defenses are not inconsistent with the former defenses he was entitled to “maintain that whoever was responsible for the killing may have been provoked; that person may have acted in a heat of passion and thus committed voluntary manslaughter and conspiracy to commit voluntary manslaughter, not murder and conspiracy to commit murder.” He hypothesizes that the jury could have inferred from the commotion outside the convenience store that something startling and probably criminal occurred, that if a crime occurred right before Lamar’s murder “the crime or something about the crime” was the likely “provocation to Lamar’s killer and his confederates, ” and that the provocation may “have given rise to a heat of passion, a non-malicious agreement to kill, and a non-malicious killing.”
On that shaky foundation, Johnson argues that his jury “might have (a) doubted whether the killing of Lamar was malicious, (b) suspected the killer and his getaway driver acted on provocation and in a heat of passion and (c) decided they were, therefore, guilty of [voluntary] manslaughter and conspiracy to commit voluntary manslaughter, not murder and conspiracy to commit murder.” The Attorney General argues that Johnson’s “theory of provocation is based on rampant speculation, ” that there is no substantial evidence Lamar provoked him or Lenix, and that the court had no obligation to instruct sua sponte on voluntary manslaughter or conspiracy to commit voluntary manslaughter. We agree.
On a challenge to the absence of sua sponte instruction “on an assertedly lesser included offense, ” our duty is to apply “the independent or de novo standard of review.” (People v. Cole (2004) 33 Cal.4th 1158, 1218.) Since “‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, ” the sua sponte duty of a court to so instruct arises “whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162, italics in original.) “Adequate provocation as an element of voluntary manslaughter must be affirmatively demonstrated; it cannot be left to speculation.” (People v. Williams (1969) 71 Cal.2d 614, 624.) Johnson’s argument is meritless.
8. Convictions of Murder and Accessory to Murder
Johnson argues that identical acts that were the basis of his convictions of murder and accessory to murder require reversal. The Attorney General argues the contrary.
Johnson relies primarily on People v. Prado (1977) 67 Cal.App.3d 267 (Prado), which held that “when an accused is convicted of violation of Penal Code section 32, which necessarily requires that a principal have committed a specific completed felony and that he knowingly aided that principal with intent that the principal escape arrest, he cannot be convicted as a principal in that completed felony. His state of mind – the intent required to be an accessory after the fact – excludes that intent and state of mind required to be a principal. The requisite intent to be a principal in a robbery is to permanently deprive the owner of his property. Thus, this is a totally different and distinct state of mind from that of the accused whose intent is to aid the robber to escape. These are mutually exclusive states of mind and give rise to mutually exclusive offenses.” (Id. at p. 273, italics in original.) On that foundation, Johnson argues that the court erred by not giving an instruction “barring the jury from finding [him] guilty of being both a principal and an accessory to the murder of Lamar.”
Penal Code section 32 provides, “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”
Later cases, however, criticize the inflexible rule of Prado and require specific circumstances in which dual convictions are impermissible, such as where both crimes rest on the same conduct (People v. Riley (1993) 20 Cal.App.4th 1808, 1816; People v. Mouton (1993) 15 Cal.App.4th 1313, 1324, disapproved on another ground by People v. Prettyman (1996) 14 Cal.4th 248, 278-280), where the accessory theory depends solely on the defendant’s incidentally assisting other participants by his own escape and his own denials of culpability (In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1359), and where the acts constituting the underlying felony have not ceased at the time of the conduct on which the accessory charge relies (In re Malcolm M. (2007) 147 Cal.App.4th 157, 171 (Malcolm M.)). The record here, however, shows none of those circumstances.
To the contrary, the record here shows, initially, that Johnson aided and abetted Lenix in murdering Lamar and, separately and subsequently, that he facilitated his escape by picking him up in the getaway car and driving him away from the crime scene. On that record, since being a principal in a crime and being an accessory to that crime are not mutually exclusive offenses as a matter of law, imposition of liability for both crimes is permissible. (Malcolm M., supra, 47 Cal.App.4th at p. 169.)
9. Arming Enhancement
Johnson argues, the Attorney General agrees, and we concur that the arming-of-a-principal-with-a-firearm enhancement that the court imposed to the accessory-to-murder count must be stricken since the information charged only Johnson, but not Lenix, in that count. (§§ 32, 187, subd. (a), 12022, subd. (a)(1).)
10. Prior-Prison-Term Enhancements
Johnson argues, the Attorney General agrees, and we concur that the prior-prison-term enhancements that the court imposed and stayed on the second-degree-murder and the conspiracy-to-commit-murder counts must be stricken since those are status enhancements that relate to the offender, not to the count, and that a court may impose only once in arriving at an aggregate sentence. (People v. Tillotson (2007) 157 Cal.App.4th 517, 542.)
DISPOSITION
The matter is remanded with the directions to the court to (1) strike the enhancement for arming of a principal with a firearm from the count 3 accessory to murder, (2) strike the enhancements for a prior prison term from the count 1 second degree murder and the count 3 accessory to murder, (3) issue an abstract of judgment amended accordingly, and (4) send a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. Johnson has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) Otherwise the judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.