Summary
In People v. Kaihea (2021) 70 Cal.App.5th 257 (Kaihea), the Third Appellate District held the disputed portion of CALCRIM No. 1403 is "correct in law."
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C088045
10-13-2021
The PEOPLE, Plaintiff and Respondent, v. Tevita Tikoni KAIHEA, Defendant and Appellant.
Paul Couenhoven, under appointment by the Court of Appeal, Santa Clara, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Robert Gezi, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts I, II, IV, V, VI and VII.
Paul Couenhoven, under appointment by the Court of Appeal, Santa Clara, for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Robert Gezi, Deputy Attorney General, for Plaintiff and Respondent.
MURRAY, Acting P. J. This is another case involving a murder arising from gang warfare, this time between the Tongan Crips and Norteños. A jury found defendant Tevita Tikoni Kaihea guilty of first degree murder and also found him guilty of multiple offenses involving a crime spree preceding the murder. The trial court sentenced defendant to an aggregate prison term of 111 years and four months to life.
On appeal defendant challenges (1) the admission of certain gang evidence as cumulative and highly prejudicial, (2) the court's failure to instruct the jury on the defense of mistake of fact and transferred intent, and (3) the court's instruction that the jury could consider gang evidence in deciding whether defendant acted in self-defense and heat of passion, and (4) he maintains those errors were cumulatively prejudicial. He also (5) challenges the imposition of a gang enhancement sentence to his murder conviction, (6) contends the trial court improperly calculated custody credits, and (7) contends the court improperly deducted actual days served credit for his jail behavior. Both defendant and the People separately note (8) the trial court erroneously awarded conduct credit.
In the published portion of this opinion, we reject defendant's third contention and conclude the standard instruction, CALCRIM No. 1403, is legally correct as it relates to the use of gang evidence for the purpose of deciding whether a defendant actually believed in the need to defend himself or acted in the heat of passion. To the extent that a modification should have been made to include defense of others, the contention is forfeited. We further conclude that defendant has failed to show ineffective assistance of counsel grounded on the failure to request the modification because the failure did not prejudice defendant. A legally correct modification would have been one that told the jury that gang evidence could be considered for the limited purpose of deciding whether the defendant actually believed in the need to defend himself or someone else and that he acted under fear of imminent death or great bodily injury alone . Thus, while CALCRIM No. 1403 could have been modified here, the legally correct modifications would not have helped defendant. In the unpublished portion of this opinion, we conclude that some of defendant's other contentions have merit. As to the fifth, sixth, seventh, and eighth contentions, we will strike the 10-year gang enhancement, direct the trial court to award an additional 213 days of credit, and strike the award of conduct credits. We will also direct the trial court to correct several errors in the abstract of judgment. In all other respects, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
The Crime Spree Before the Murder
Defendant's contentions mostly arise from a murder that capped a three-hour crime spree. The crime spree began when defendant and his codefendant, Charlie Hola, stole a van and drove it to a fast food restaurant, where they robbed two people at gunpoint.
Hola is not party to this appeal.
About a half-hour later, defendant and the codefendant drove by the home of T.L. who, seeing the van, became suspicious that the van's occupants had been involved in a robbery the previous night, when some of T.L.’s marijuana had been taken. T.L. got his gun and drove after the van. When it came to a stop, he started photographing the van. Defendant stepped out of the passenger side of the van and shot his gun six or seven times. The first shot hit T.L. in the face. He survived, though a bullet remains in his head.
After the shooting, someone opened the passenger side door to T.L's truck, and later, the gun T.L. had, which had been on the passenger seat, was missing.
The Gang Altercation and Murder
About an hour later, defendant and codefendant arrived at Sacramento City College where surveillance cameras would capture the murder. In the video, which was played for the jury, the victim, R.G. and a companion, R.R., can be seen walking down the street. Both were Norteño gang members, and R.G. was wearing a red belt, a Norteño color.
R.G. and R.R. crossed paths with defendant and the codefendant, before exchanging looks and squaring off. As defendant approached the two Norteños, R.G. dropped his backpack. The codefendant came after R.G., who, in turn punched at the codefendant. The codefendant then delivered multiple blows, primarily to R.G., and then exchanged blows with R.R., who was next to them. The codefendant, thereafter, continued to fight with both of the Norteños.
At some point during the melee, R.R. stabbed the codefendant four times, including in the chest. In the video, R.R. can be seen, as one witness described, "making movements towards" the codefendant, "you can't see the knife, ... but you can presume that's when the stabbing had occurred because he's moving in close, close enough to [the codefendant] ...."
The codefendant continuously fought and appeared to be aggressively advancing on the Norteños when defendant approached, appearing to draw a gun from under something he was carrying. He then pointed the gun and ran forward shooting at R.G., with whom the codefendant was exchanging blows at the time. The two Norteños turned and began running. A witness described defendant as "continuously, actively shooting the victim, who was [lying] on the ground." R.R. ran off. Defendant then jogged away, and the codefendant followed, walking some distance behind and brushing his hair back. A man working nearby heard "the first guy" say something to the effect of "you didn't see nothing."
Police found the codefendant on a park bench a block and one-half away, bleeding. R.R. sustained a bullet graze wound on his left hip.
Forensic Evidence
R.G. died from multiple gunshot wounds. The bullet trajectory for each wound was from the back of his body to the front.
Entry wounds were located in left side of R.G.’s back, the back of his right hip, back left thigh, and left leg above the calf.
Nine-millimeter shell casings found at the murder scene were matched to the shell casings found at the scene where T.L. was shot, thus establishing that the same gun was used in both shootings. The gun was never recovered.
Gang Evidence
The jury heard evidence that defendant and the codefendant were members of the Tongan Crips street gang. In 2014, Tongan Crip graffiti was found in defendant's bedroom and that same year, he told an officer he "does mess with the Tongan Crips." After his arrest in this case, he was seen making a Crip sign as he passed a jail pod where Blood gang members were housed, and he came to court wearing shoes marked with Tongan Crip gang graffiti. Images on defendant's Facebook page showed a group of people making gang signs and simulating holding guns. Defendant also has "TC," short for Tongan Crip, tattooed under his eye.
The jury also heard evidence that from 2014 to the time of the murder, the Norteños were the main rivals of Tongan Crips, and a state of war existed between the two gangs at the time of the murder here. The feud began in mid-2013 when defendant's brother was killed by Norteños. The jury also heard evidence regarding a 2015 shooting of two Norteños by Tongan Crips, a 2014 shooting of Tongan Crips by two Norteños, and four predicate offenses by Tongan Crips. The Defense
The defense put on no witnesses. In closing argument, as to the fast-food restaurant robbery, defense counsel told the jury: "I'm not going to go into very much detail about the [restaurant] because you can see the video and you can see what happened." Counsel reminded the jury that there was no shooting and no one got hurt.
As to the attempted murder of T.L., counsel argued T.L. may have been pointing a pistol rather than his camera before he was shot. And as to the murder, counsel argued defendant acted in self-defense and defense of others, in that he opened fire trying to prevent the codefendant from being stabbed to death.
Verdicts and Sentencing
The jury found defendant guilty of first degree murder for R.G.’s death ( Pen. Code, § 187, subd. (a) ; count 1) and found the crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)). For T.L., the jury found defendant guilty of attempted willful, deliberate and premeditated murder (§ 664/187; count 2) and found a firearm enhancement true (§ 12022.53, subd. (d)). It also found him guilty of two second degree robbery counts (§ 211; counts 3 & 4) with firearm enhancements (§ 12022.53, subd. (b)), felon in possession of a firearm (§ 29800, subd. (a); count 5), and unlawfully taking or driving a vehicle (§ 10851, subd. (a); count 7).
Undesignated statutory references are to the Penal Code.
Only the codefendant was charged in count 6, felon in possession of a handgun, related to a gun found in his bedroom. Firearms analysis determined that gun was not used in the murder or attempted murder charged here.
The trial court imposed an aggregate term of 111 years and four months to life, calculated as follows: 25 years to life for first degree murder, along with a 25-year-to-life firearm enhancement, and a 10-year gang enhancement; and seven years to life for attempted willful, deliberate and premeditated murder, along with a 25-year-to-life firearm enhancement; five years (the upper term) for one robbery count, along with a 10-year firearm enhancement; one year (one-third the midterm) for the other robbery count along with a three-year four-month enhancement (one-third the midterm). A concurrent term and a time-served jail sentence were imposed for the felon in possession of a firearm and taking or driving a vehicle counts, respectively. DISCUSSION
See footnote *, ante .
III. Instruction on the Use of Gang Evidence
Defendant next contends the trial court erred in instructing the jury that it could consider gang evidence in deciding whether defendant acted in self-defense or heat of passion. We disagree.
A. Additional Background
The jury was instructed with the standard instruction, CALCRIM No. 1403 : "You may consider evidence of gang activity only for the limited purpose of deciding whether: The defendant acted with the intent, purpose and knowledge that are required to prove the gang-related enhancement charge; [¶] Or the defendant had a motive to commit the crime charged in Count 1 [murder]; [¶] Or the defendant actually believed in the need to defend himself; [¶] Or the defendant acted in the heat of passion ." Each of these limited purpose options are bracketed options in the standard instruction. (See CALCRIM No. 1403, italics added.)
Defense counsel did not object to the instruction, and the parties agreed as to all instructions (except for two not at issue on appeal).
B. Analysis
Defendant argues the instruction was at best ambiguous as it gave no explanation for how the jury should consider gang evidence in deciding whether he acted to defend his friend or in the heat of passion. At worse, according to defendant, it told the jury it could reject those defenses solely because he was a gang member. He also maintains that no authority stands for the proposition that gang evidence is relevant to defense of another or heat of passion.
Defendant acknowledges his trial counsel failed to object, but he maintains the claim is cognizable because it affects his substantial rights. Alternatively, he claims his counsel rendered ineffective assistance in failing to object. Regarding his substantial rights argument, defendant overlooks that CALCRIM No. 1403 is a limiting instruction, and consequently, the trial court had no sua sponte duty to give it at all. ( People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052, 16 Cal.Rptr.3d 880, 94 P.3d 1080 [Because defendants did not specifically request a limiting instruction related to the use of gang evidence, the court had no sua sponte duty to give one].) Moreover, defendant cannot fault the trial court for not modifying CALCRIM No. 1403, sua sponte. "[A] defendant may raise for the first time on appeal instructional error affecting his or her substantial rights. [Citations.] But ‘[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial." ( People v. Buenrostro (2018) 6 Cal.5th 367, 428, 240 Cal.Rptr.3d 704, 430 P.3d 1179 ; Accord, People v. Hardy (2018) 5 Cal.5th 56, 91, 233 Cal.Rptr.3d 378, 418 P.3d 309 ; See also People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163, 91 Cal.Rptr.3d 874 ( Samaniego ) [aiding and abetting instruction].) When an instruction as given is correct in law, it is incumbent on defendant to request clarifying language, and his failure to do so forfeits the issue. ( People v. Covarrubias (2016) 1 Cal.5th 838, 877, 207 Cal.Rptr.3d 228, 378 P.3d 615 ; Samaniego , at p. 1163, 91 Cal.Rptr.3d 874.).
We conclude the instruction given here was correct in law. Indeed, a similar challenge to CALCRIM No. 1403 was raised in Samaniego, supra, 172 Cal.App.4th 1148, 91 Cal.Rptr.3d 874, which found the standard instruction neither contrary to the law nor misleading as to the bracketed options for motive and credibility. ( Id . at p. 1167, 91 Cal.Rptr.3d 874.) Rejecting the challenge as to the bracketed option for motive, the court explained that "[g]ang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related." ( Ibid. , italics added.)
We agree with Samaniego . And we further note that motive, self-defense, and heat of passion are similar in that they all relate to the reason why a defendant engaged in the alleged conduct. Here, the question was why did defendant shoot R.G. — was it because he was motivated to kill a warring gang rival, was it because he believed in the need to defend himself or others, or was it because of a sudden quarrel/heat of passion? The interrelationship of these reasons for engaging in homicidal conduct has long since been recognized; evidence of motive is relevant to refute a claim of self-defense or sudden quarrel/heat of passion. ( People v. Hall (1938) 27 Cal.App.2d 440, 445, 81 P.2d 248.)
And while no published case holds that gang evidence is relevant to defense of others, there is decisional authority holding that evidence of gang membership is directly relevant to the genuineness of the belief of the need to defend oneself, because such evidence can demonstrate that a defendant killed because of a gang-related motive as opposed to self-defense. ( People v. Iraheta (2017) 14 Cal.App.5th 1228, 1252-1253, 222 Cal.Rptr.3d 706.) We conclude the same applies to defense of others. Moreover, our Supreme Court has explained that a defendant who kills a gang rival is not entitled to claim self-defense where he acts not based on fear alone but also because of a desire to kill a rival because of gang related animus. ( People v. Nguyen (2015) 61 Cal.4th 1015, 1044, 191 Cal.Rptr.3d 182, 354 P.3d 90 ( Nguyen ).)
As noted, the jury was instructed: "The defendant must have believed there was imminent danger of death or great bodily injury [to] himself or someone else. The Defendant's belief must have been reasonable and he must have acted only because of that belief ." (Italics added.)
Here, evidence of defendant's gang activity logically informed a determination of whether he was motivated to kill a gang rival because of the war between his gang and the Norteños. Moreover, defendant had a personal gang-related motive — his brother was killed by Norteños in the first skirmish in the ongoing war between the two gangs. CALCRIM No. 1403, as given, was thus, correct in law as it informed the jury it could consider gang evidence for the limited purpose of establishing whether defendant actually believed in the need to defend himself.
As for sudden quarrel/heat of passion, a killing " ‘may be reduced to voluntary manslaughter if the victim engaged in provocative conduct that would cause an ordinary person with an average disposition to act rashly or without due deliberation and reflection.’ " ( People v. Enraca (2012) 53 Cal.4th 735, 759, 137 Cal.Rptr.3d 117, 269 P.3d 543.) But "[t]he standard is not the reaction of a ‘reasonable gang member’ " and our high court has recognized that gang related challenges between individuals do not induce sufficient provocation in an ordinary person to establish heat of passion. ( Ibid . ) Moreover, " ‘the accused must be shown to have killed while under "the actual influence of a strong passion" induced by such provocation.’ " ( Ibid. , italics added.) A person acting because of gang related animus or revenge does not act under passion that would reduce a killing to voluntary manslaughter. Consequently, gang related evidence can be considered for the limited purpose of deciding whether a defendant killed in the heat of passion.
We therefore conclude that CALCRIM No. 1403 as given here was legally correct as it instructed the jury that gang evidence may not be considered for any purpose other than the listed limited purposes, and it instructed the jury that it may not conclude from such evidence that defendant is a person of bad character or has a disposition to commit crime. To the extent the instruction failed to fully explain the contours of how gang evidence inform a self-defense, defense of others or sudden quarrel/heat of passion determination, it was incumbent upon defendant to seek clarifying language. To that, defendant asserts he was deprived of effective assistance of counsel, apparently based on the asserted failure to request a clarification modification. But he makes no suggestion as to how the instruction should have been clarified in a way that would be both legally correct and of benefit to him. As we have noted, the instruction was legally correct as to self-defense and sudden quarrel/heat of passion. And, in our view, the only legally correct modifications that could have been made would not have helped defendant. Such clarification would have resulted in an instruction that told the jury the gang evidence could be considered for the limited purpose of deciding whether the defendant actually believed in the need to defend himself or someone else and that he acted under fear of imminent death or great bodily injury alone .
The bracketed option, in the pattern instruction — "Or the defendant actually believed in the need to defend himself" — could have been modified to include the need to defend someone else . But since the instruction limited the purpose for which the gang evidence could be used to whether defendant actually believed in the need to defend himself and told the jury it could not be used for any other purpose (other than the other three listed limited purposes), the instruction effectively barred the jury's use of the gang evidence to negate defense of others. Consequently, trial counsel was not deficient for failing to ask for clarification in this regard; nor was defendant prejudiced. If the request had been made to add defense of others, it would not have benefited defendant.
Similarly, regarding the requirement that a person claiming self-defense "act under that fear alone," as we have noted, a defendant who kills a gang rival is not entitled to claim self-defense where he or she kills because of fear of death or great bodily injury and also because of a desire to kill a rival because of gang related animus. ( Nguyen, supra, 61 Cal.4th at p. 1045, 191 Cal.Rptr.3d 182, 354 P.3d 90 [" ‘[T]he circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone ’ "; if emotions other than fear, such as a desire to kill a gang rival, are a causal factor, then the killing cannot be justified on the theory of self-defense].) Consequently, to articulate a correct statement of the law pertinent to this case, any clarification to CALCRIM No. 1403 should have included the "fear alone" principle. But a clarification telling the jury that gang evidence could be considered for the purpose of determining whether defendant acted under fear of imminent death or great bodily injury alone would not have inured to defendant's benefit.
To establish ineffective assistance of counsel, a defendant must establish that he was prejudiced. ( Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692, 104 S.Ct. 2052, 2064–2065, 2066–2067, 80 L.Ed.2d 674, 693-694, 696 ; People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233 Cal.Rptr. 404, 729 P.2d 839.) To establish prejudice, "[i]t is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’ " ( Harrington v. Richter (2011) 562 U.S. 86, 89, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624, 642.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. ( Strickland , at pp. 693-694, 104 S.Ct. 2052 ; Ledesma , at pp. 217-218, 233 Cal.Rptr. 404, 729 P.2d 839.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." ( Strickland , at p. 694, 104 S.Ct. 2052 ; accord, Ledesma , at p. 218, 233 Cal.Rptr. 404, 729 P.2d 839.) "The likelihood of a different result must be substantial, not just conceivable." ( Richter , at p. 112, 131 S.Ct. 770.)
Defendant has not shown prejudice, because although CALCRIM No. 1403 could have been modified here, the legally correct modifications would not have helped defendant. Thus, while the failure to object to CALCRIM No. 1403 forfeits defendant's contention regarding the instruction, ineffective assistance has not been established. IV.-VII.
See footnote *, ante .
DISPOSITION
The judgment is modified to strike the punishment for the 10-year gang enhancement ( § 186.22, subd. (b)(1)(C) ) as to count 1, first degree murder.
The judgment is further modified to award an additional 213 days of actual credit. The award of 96 days of conduct credit is stricken.
The trial court is directed to prepare an amended abstract of judgment reflecting the revised custody credits and correcting the typographical errors discussed in section IX. The trial court is further directed to send a certified copy to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
We concur:
RENNER, J.
KRAUSE, J.