Opinion
C051777
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. RATTANAK KAK, Defendant and Appellant.
Not to be Published
On October 10, 2003, defendant Rattanak Kak and codefendant Mao Hin murdered Alfonso Martinez at American Legion Park in Stockton, in the presence of Martinezs girlfriend. A month later, Kak and Hin committed a drive-by shooting at a residence on Bedlow Drive. With respect to the American Legion Park crimes, a jury convicted defendant of first degree murder in the commission of a robbery and kidnapping, attempted murder, and two counts of robbery, and found that a principal intentionally discharged a firearm in the commission of the offense. As for the Bedlow Drive offenses, the jury convicted defendant of five counts of deliberate and premeditated attempted murder, two counts of shooting at an occupied residence, shooting at an occupied motor vehicle, shooting from a motor vehicle, and being an active gang member. The jury also found that a principal and defendant intentionally discharged a firearm in the commission of all of the crimes, except the gang offense, and that the crimes were committed on behalf of a criminal street gang.
Defendant was sentenced to "a total of 205 years to life plus 6 life sentences plus life without possibility of parole."
On appeal, defendant challenges the denial of his Miranda motion (Miranda v. Arizona (1966) 384 U.S. 436 (hereafter Miranda)), the denial of his motion to suppress evidence, the exclusion of third party culpability evidence, and the sufficiency of the evidence. He also raises various challenges to the "kill zone" instructions given to the jury, and contends that reversal is warranted due to prosecutorial misconduct and cumulative error.
We agree that two of the attempted murder convictions (counts 5 and 8) are not supported by substantial evidence. Thus, we shall reverse those convictions and vacate the applicable firearm and gang enhancements, reducing defendants sentence to 125 years to life plus life without the possibility of parole. Defendant fails to establish any other prejudicial error. However, our review of the record discloses sentencing error that we will correct, thereby further reducing defendants sentence to 80 years to life plus life without the possibility of parole. We shall affirm the judgment as modified.
FACTS
On September 12, 2003, members of the Tiny Rascal Gang (TRG) committed a drive-by shooting into an occupied vehicle at the intersection of Hammer and Lan Ark in Stockton. One passenger died and two others were seriously injured. One of the injured victims, Sophal Ouch, was associated with a Crip gang. Ouchs girlfriend, who was also injured in the incident, testified that "T-Bird," Rathana Chan, was driving the blue Honda Accord used in the shooting. Police seized a blue Honda Accord at Chans residence and collected fingerprint evidence from the car. Prints belonging to Chan and defendant were identified. Defendant was not charged with any crimes related to this drive-by shooting; the evidence was introduced to show his gang membership and involvement.
Around 10:00 p.m. on October 10, 2003, defendant and codefendant Hin approached 20-year-old Alfonso Martinez and his 17-year-old girlfriend, Debra Pizano, in American Legion Park. One of them pulled out a gun and demanded the young couple give them money. After the couple complied, defendant and Hin made them walk to the bottom of a hill, stole Pizanos watch and Martinezs baseball cap, and then stated, "Dont you know its dangerous to be out at night in the park?" Pizano heard four gunshots and defendant and Hin laughing. Martinez was fatally wounded and Pizanos head and thigh were grazed by bullets. Pizano, who initially thought the robbers were African Americans based on their dark skin color and slang speech pattern, identified Hin as being one of the perpetrators but was unable to identify defendant.
At 7:50 p.m. on November 8, 2003, officers responded to the report of a shooting on Bedlow Drive. The Asian Street Walkers (ASW), a Crip gang composed primarily of Cambodians, claimed the Bedlow Drive area as the ASWs turf. The TRG was an enemy of the ASW. A group of young Southeast Asians, some with ties to the ASW and wearing ASW colors, were socializing in a carport at a residence on Bedlow Drive when the shootings occurred. The perpetrators fired numerous rounds into the carport, two parked vehicles and two residences. They wounded five victims.
Later that night, a police officer observed a tan Toyota Previa van that was similar to the description of the one used in the Bedlow Drive shootings. The van was parked at Pisith Phleks residence on Toulouse Way, where Phlek was hosting a birthday party for his son. The van was registered to Hin, who associated with members of the TRG. Three people, later identified as defendant, Hin, and Sarun Chun, left the residence and drove away in the van. Around 12:20 a.m., officers stopped the van based on a Vehicle Code violation and detained the occupants. During a search of the van, the officers found two nine-millimeter shell casings. Earlier, police had found an expended nine-millimeter shell casing in front of a Bedlow Drive residence where the shootings occurred. They transported defendant, Hin, and Chun to the police station for questioning.
Defendant was given Miranda warnings and eventually admitted that he was the gunman in the Bedlow Drive crimes, but claimed that he shot at the people in the carport in self-defense after he thought he saw gunfire. Defendant also admitted that he and Hin committed the American Legion Park crimes, and that defendant, Hin, Chun, and T-Bird were involved in the Hammer and Lan Ark shootings. Defendant acknowledged that he "kick[ed] it" with TRG members, but denied belonging to the gang.
A search of defendants residence revealed a wallet with TRG writing on it and various caliber ammunition, nine-millimeter, . 44 magnum, and .22 caliber. At Hins house, officers found TRG gang indicia and .22 caliber rounds. From Phleks house, they seized a photo album displaying gang photos of T-Bird and Hin. Officers also searched Sokha Buns apartment and work truck and found a Beretta nine-millimeter pistol and a .44 caliber Ruger Redhawk revolver. According to Bun, Hin gave him the weapons at Phleks party. Defendant accompanied Hin, who told Bun the guns belonged to defendant and they had "just [come] from a problem."
A criminalist testified that three guns were used at the Hammer and Lan Ark shooting, a .44 caliber, a .22 caliber, and a .38 caliber or nine-millimeter firearm. A .44 caliber bullet recovered from the murder victims head was consistent with test fires of the Ruger Redhawk revolver. Regarding the American Legion Park crimes, three nine-millimeter casings found near Martinez were fired from the Beretta pistol, which became "known as the bottle cap gun because of all the detail around the firing pin aperture." The criminalist determined that several bullets and shell casings recovered from the Bedlow Drive crime scene and the two shell casings found in Hins van were also fired from the Beretta.
A gang expert testified that defendant and Hin were active members of the TRG, and that the Hammer and Lan Ark crimes, the American Legion Park crimes, and the Bedlow Drive crimes were all gang related.
Defense
Defense counsel attempted to cast doubt on defendants confessions, asserting that defendant merely told the officers what they wanted to hear after a full day of interrogations. Counsel emphasized that Pizano was unable to identify defendant as a participant in the American Legion Park crimes even though his investigator established the adequacy of the lighting and visibility at the park. He also indicated that defendant acted in self-defense at Bedlow Drive after the group in the carport shot at Hins van.
DISCUSSION
I
Defendant contends the trial court erred in denying his Penal Code section 1538.5 motion to suppress evidence against him, including his incriminating statements. He claims the scope of his detention exceeded reasonable bounds, becoming a de facto arrest, and there was no probable cause to arrest him. Thus, he argues, the shell casings found in the van and his subsequent incriminating statements must be suppressed as the fruit of the poisonous tree. (Wong Sun v. United States (1963) 371 U.S. 471, 484-488 [9 L.Ed.2d 441, 453-455], [the Fourth Amendments exclusionary rule applies to statements and evidence obtained as a product of illegal searches and seizures]; Kaupp v. Texas (2003) 538 U.S. 626, 632-633 [155 L.Ed.2d 814, 821-822], [where an arrest is made without probable cause, suppression of an ensuing confession is required unless the confession was "`an act of free will [sufficient] to purge the primary taint of the unlawful invasion"].) As we shall explain, the court properly denied the motion to suppress evidence.
A
At the suppression hearing, Officer Mark Couvillion testified as follows: He was assigned to the gang street enforcement team (GSET) on November 8, 2003, and responded to the drive-by shooting crime scene on Bedlow Drive at 7:53 p.m., a few minutes after the shooting. The ASW, a Crip gang that was an enemy of the TRG, frequented the Bedlow Drive area. Several of the witnesses to the shooting appeared to be associated with the ASW. Although the witnesses were unable to identify the perpetrators, they described the suspect vehicle as a late 1990s, tan or light blue Toyota Previa van, with a slider door, non-tinted windows, and stock rims. The slider door opened during the attack, indicating that a driver and at least one other shooter were in the van. Multiple shots were fired, and at least five people were wounded. In front of one of the Bedlow Drive residences, Couvillion found a Luger nine-millimeter shell casing.
While on patrol around 12:20 a.m., Couvillion spotted a 1990s Toyota Previa van with a slider door, non-tinted windows, and stock rims. Couvillion was familiar with the vehicle based on a tip from an anonymous informant who told Couvillion that a Toyota Previa van had been used by the TRG for their drive-by shootings, and the van was located at Fontana, a known TRG hangout. Couvillion went to Fontana and saw the van, which was the same one that he observed on patrol. Based on information from witnesses to the Bedlow Drive shootings and the anonymous informant, and on his familiarity with the TRG, Couvillion suspected the Previa might have been used in the drive-by shootings on Bedlow Drive.
When the van passed Couvillion, he saw that the license plate light was not operational and that Mao Hin was driving. He had numerous contacts with Hin over the past two years and knew he owned the van. Couvillion also knew Hin did not have a valid drivers license and believed that Hin, who frequented TRG gang areas, was an "associate" of the gang. Couvillion initiated a traffic stop and approached the van with his weapon drawn for officer safety but pointed at the ground. The drivers side window was down and Hin said, "Whats up, Officer Couvillion?" Couvillion replied, "Whats up, Mao? You dont have a license, do you?" Hin replied he did not and gave the officer his California I.D. card. Couvillion told Hin he was going to issue him a citation and asked him to get out of the van. He pat searched Hin for weapons and placed him in the back of the patrol car, without handcuffs. He asked Hin if he could search his van for weapons or drugs, and Hin replied, "Its all you."
Couvillions search of the Previa revealed two spent shell casing behind the drivers seat, one toward the center and one "stuck along the edge of the drivers side of the vehicle." The shell casings were both Luger nine-millimeters, like the shell casing Couvillion found at the Bedlow Drive crime scene. Couvillion observed that Hin had objective signs of intoxication and an odor of alcohol. He believed Hin was "DUI" and arranged for another officer to transport Hin to the police department for testing.
Officers Graviette and Gutierrez assisted with the traffic stop. They approached the passengers in the van as Couvillion approached Hin. The two passengers in the van were identified as defendant and Chun. Both were under 18 years of age and in violation of curfew. The police were obligated to detain the minors until their parents could pick them up or they were transported to the "curfew center."
Graviette asked defendant if he had anything illegal. When defendant replied he did not, Graviette asked if he could look. Defendant replied affirmatively, and Graviette asked defendant to get out of the van. Graviette explained that defendant was not under arrest, only being detained. Given the recent Bedlow Drive shootings, Graviette handcuffed defendant for officer safety and patted him down for weapons. He placed defendant in the patrol car and walked back to the van. Officer Gutierrez told Graviette that they had found shell casings in the van. Graviette advised defendant of his Miranda rights and, within a short period of time, transported him to the police department.
The trial court ruled as follows: The officers had cause to stop the van based on the license plate violation and the knowledge that Hin did not have a drivers license, and also had cause to detain the occupants of the van based on a reasonable suspicion that they had been involved in criminal activity because the van matched the description of the one used in the drive-by shooting four hours earlier. Hin agreed to the vehicle search, and the officers were entitled to remove defendant to the patrol car for officer safety while the van was searched. The officers found two shell casings matching those found at the scene of the shooting. The arrest was supported by probable cause.
B
Defendant concedes the officers acted lawfully in stopping the van based on a traffic violation (see Berkemer v. McCarty (1984) 468 U.S. 420, 439 [82 L.Ed.2d 317, 334]; People v. Hardacre (2004) 116 Cal.App.4th 1292, 1300), but claims the evidence found during the stop must be suppressed because it was obtained as the result of an unreasonably prolonged and intrusive detention, which became a de facto arrest. According to defendant, Officer Couvillion should have given Hin a citation and permitted Hin and his passengers to go on their way, rather than further detaining, pat searching, and handcuffing them. Defendant further posits there was no probable cause to arrest him even after the shell casings were found, and the officers conduct cannot be justified by defendants curfew violation. (In re Justin B. (1999) 69 Cal.App.4th 879, 883, 888-889 [where a minors only offense is a violation of curfew, an officer abridges the minors right to be free of unreasonable searches and seizures when the officer transports the minor to the police station and subjects the minor to questioning designed to elicit incriminating responses].)
The argument is unpersuasive because (1) defendants detention did not arise solely from vehicle and curfew violations; it was also based on information linking the van to the Bedlow Drive shootings, and (2) defendants interrogation did not arise from an arrest for a mere curfew violation but from an arrest based on probable cause to believe defendant was involved in the drive-by shootings.
When a police officer makes a traffic stop, the driver of the car and any passengers are seized within the meaning of the Fourth Amendment. (Brendlin v. California (2007) 551 U.S. ___, ___ [168 L.Ed.2d 132, 136].) "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231; see also Terry v. Ohio (1968) 392 U.S. 1 .) "The scope of the detention must be carefully tailored to its underlying justification" (Florida v. Royer (1983) 460 U.S. 491, 500 [75 L.Ed.2d 229, 238]), but there is no defined maximum permissible time limit for a traffic stop. The reasonableness of each detention must be assessed in light of its particular circumstances. (People v. Russell (2000) 81 Cal.App.4th 96, 102.) Circumstances that develop or are discovered during a stop may create reasonable suspicion sufficient to support prolonging the detention. (Ibid.)
When a detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest. (Dunaway v. New York (1979) 442 U.S. 200, 212 [60 L.Ed.2d 824, 835-836].) But "there is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. [Citations.]" (In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385; see also People v. Glaser (1995) 11 Cal.4th 354, 366.)
In reviewing the denial of a motion to suppress evidence, we defer to the trial courts factual findings where supported by substantial evidence, but exercise our independent judgment to determine whether, under those facts, a search or seizure was reasonable under the Fourth Amendment. (People v. Glaser, supra, 11 Cal.4th at p. 362.) Viewed in the light most favorable to the order (People v. Weaver (2001) 26 Cal.4th 876, 924), the evidence supports the courts denial of the motion to suppress.
Officers legitimately stopped the van because of the absence of a license plate light and the knowledge that the driver was not licensed. They also knew that a similar van was used a few hours earlier in the nearby Bedlow Drive area to commit a drive-by shooting. And they had reason to believe that Hin was associated with the TRG, a rival of the ASW victims in the shooting, and that Hins van had been used in a drive-by shooting before. This supports a reasonable suspicion that the van and its occupants were involved in the Bedlow Drive shootings and supports the officers decision to investigate the matter. In the process of doing so, the officers discovered that Hin appeared intoxicated and that defendant and the other passenger were minors violating curfew, which provided an additional basis for prolonging their detention.
Officer Couvillion obtained Hins consent to search the van, and Officer Graviette removed defendant to the patrol car during the search. The fact he handcuffed defendant and placed him in the patrol car does not automatically mean that defendant was arrested, rather than lawfully detained during the investigation and consensual search of the van. (See People v. Celis (2004) 33 Cal.4th 667, 675 [detention when officer drew his gun, handcuffed defendant, and made him sit on ground]; People v. Soun (1995) 34 Cal.App.4th 1499, 1517 [detention when large number of officers removed defendant from car at gunpoint, forced him to lie on ground, handcuffed him, and placed in patrol car].) Rather, "we must consider the totality of the circumstances [citation] to determine if the means used by the police . . . were justified by the need of a `reasonably prudent officer [citation] to protect himself and others involved in the search." (People v. Glaser, supra, 11 Cal.4th at p. 366.)
"[D]anger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car." (Maryland v. Wilson (1997) 519 U.S. 408, 414 [137 L.Ed.2d 41, 48].) Also, the officers were investigating a serious crime in which several people were wounded by gunfire. They were entitled to protect themselves by pat searching the van occupants and handcuffing them for officer safety while the van was searched. There is no evidence that the search and detention were unduly long; indeed, the evidence indicates the officers discovered the shell casings soon after the search began.
Under the circumstances, defendant has failed to show that his detention was unreasonably prolonged or a de facto arrest. (United States v. Sharpe (1985) 470 U.S. 675, 686-688 [84 L.Ed.2d 605, 615-617] [20-minute investigative detention reasonable under circumstances]; People v. Hart (1999) 74 Cal.App.4th 479, 490 ["the privacy protections of the Fourth Amendment must not be construed so as to compromise the safety of those who serve and protect the public"].)
Defendant argues even if his detention was not unreasonable, the police lacked probable cause to arrest him after they found the shell casings. We disagree.
Probable cause for arrest exists "when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." (People v. Price (1991) 1 Cal.4th 324, 410.) Defendant was a passenger in a van which, according to an anonymous informant, was used in the Hammer and Lan Ark shooting and matched the Bedlow Drive eyewitnesses description of the van used in the drive-by shooting a few hours earlier. Defendant was in the company of Hin, who was an associate of the TRG. The Bedlow Drive shootings occurred in an area that is frequented by the ASW, a rival of the TRG. The evidence indicated that more than one person had perpetrated the Bedlow Drive shootings. Nine-millimeter Luger shell casings, which matched one found at the scene of the crime, were found in the van. This would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that defendant was involved in a gang-related, drive-by shooting on Bedlow Drive a few hours earlier with Hin.
In other words, there was probable cause to arrest defendant, and the trial court did not err in denying the suppression motion.
II
Defendant contends that the nine-millimeter bullets seized by the police from Hins van must be suppressed because Hin did not validly consent to a search of the van. Defendant acknowledges that neither he nor Hin contested the search on this ground but claims that if the issue is forfeited as a result of this omission, then he received ineffective assistance of counsel.
As we will explain, defense counsel was not ineffective for failing to raise the objection at trial, which forfeited the claim on appeal. (People v. Williams (1999) 20 Cal.4th 119, 136.)
To succeed on such a claim, defendant must show (1) counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the petitioner. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698]; People v. Kelly (1992) 1 Cal.4th 495, 520.)
"A warrantless search may be based on the consent of a person, other than the accused, who has control over the area searched. `[T]he defendant may challenge the validity of the consent insofar as the search infringed his own expectations of privacy under the Fourth Amendment. [Citation.] The `capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person . . . has a legitimate expectation of privacy in the invaded place. [Citation.]" (People v. Rivera (2007) 41 Cal.4th 304, 308, fn. 1.)
As a passenger in a van he did not own or possess, defendant had no reasonable expectation of privacy in the van that would permit a Fourth Amendment challenge to a search of the van and the resulting seizure of the nine-millimeter shell casings. (People v. Valdez (2004) 32 Cal.4th 73, 122; U.S. v. Twilley (9th Cir. 2000) 222 F.3d 1092, 1095.) Defendant did have standing to challenge the initial stop of the van, even absent a possessory or ownership interest in the vehicle. But he explicitly, and understandably, does not challenge the traffic stop. Hence, his claim that the bullets in the van must be suppressed fails, as does his assertion that his counsel was ineffective for not raising the objection. Defense counsels failure to make futile or unmeritorious objections is not deficient performance. (People v. Price, supra, 1 Cal.4th at p. 387; People v. Beasley (2003) 105 Cal.App.4th 1078, 1092.)
III
Defendant contends the trial court erred in ruling that he waived his Miranda rights and that his incriminating statements to the police were voluntary and not coerced.
Under the familiar requirements of Miranda, a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent. (People v. Sims (1993) 5 Cal.4th 405, 440.) "`The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]" (People v. Smith (2007) 40 Cal.4th 483, 501-502, quoting Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421].)
We independently review the totality of the circumstances to determine whether the prosecution has met its burden and proved the statements were voluntary. (Arizona v. Fulminante (1991) 499 U.S. 279, 285-286 [113 L.Ed.2d 302, 315]; People v. Thompson (1990) 50 Cal.3d 134, 166, disapproved on other grounds in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829.) In making this determination, we consider factors such as the length of the interrogation, its location, its continuity, and the defendants sophistication, education, physical condition, and emotional state. (People v. Williams (1997) 16 Cal.4th 635, 660 (hereafter Williams); In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) "[A]ny factual findings by the trial court as to the circumstances surrounding an admission or confession, including `"the characteristics of the accused and the details of the interrogation" [citation], are subject to review under the deferential substantial evidence standard. [Citation.]" (Williams, supra, 16 Cal.4th at p. 660.)
Based on the evidence adduced at the suppression hearing, the trial court did not err in denying defendants motion to exclude his inculpatory statements at trial.
A
As discussed previously, on November 9, 2003, Stockton police officers stopped defendant and Hin in a Toyota van around 12:20 a.m., a few hours after the Bedlow Drive shootings. Upon finding nine-millimeter shell casings in the van, Officer Graviette advised defendant of his Miranda rights and took him to the police department.
Officers Nance and Gall interviewed defendant around 2:00 a.m. Gall asked defendant if he remembered or understood Graviettes advisement of his Miranda rights. Defendant replied affirmatively. Defendant did not indicate that he wished to remain silent or ask for an attorney. The officers spoke with him for approximately 20 to 25 minutes about the traffic stop and the shooting. Then the officers spoke to Sarun Chun before returning to talk to defendant about 3:00 a.m. concerning inconsistencies between his and Chuns account of events. The interview continued for 20 to 30 minutes until defendant admitted being the shooter at the drive-by on Bedlow Drive. The officers arranged for defendant to meet with Chun and then Hin, and defendant told them that he had admitted to the officers that he "was shooting." Thereafter, Hin admitted driving the van at the Bedlow Drive incident.
Because the officers were aware that a nine-millimeter gun had been used in other shootings, they contacted their supervisor, who asked that evidence technicians test and compare the bullets found at the crime scenes.
Around 5:00 a.m., the officers transferred defendant, Hin, and Chun to the Stewart-Eberhardt Building. Defendant was given an opportunity to rest and to eat before speaking with Nance and Gall again at 1:25 p.m. Defendant had not eaten the proffered food and complained he had been unable to sleep because the table was too hard. But he appeared to be calm and cooperative. During the interview, which was videotaped and lasted about an hour and a half, Gall stated the officers needed "to clear a couple little things up. Its not that big of a deal." He readvised defendant of his Miranda rights, and defendant stated that he understood. The officers questioned defendant about the details of the Bedlow Drive shootings, which he had already admitted committing during the unrecorded interview.
Detective Seraypheap, who arrived at the Stewart-Eberhardt Building around 10:30 a.m., monitored Nances and Galls recorded interview before conducting his own unrecorded interview of defendant with Officer Reyes. Seraypheap reminded defendant of his Miranda rights, which he "seemed to understand," and questioned him about the Bedlow shooting. Defendant was advised that he had been arrested for the drive-by shooting, and was told that five people had been shot. Seraypheap informed defendant that shell casings from the gun used in the Bedlow Drive shootings indicated the gun had been used in 15 other shootings, three of which were homicides. Defendant denied any knowledge of the other shootings and only admitted being the shooter at Bedlow Drive. Seraypheap told defendant the shell casings matched those from the American Legion Park homicide, but defendant continued to deny any involvement in that crime.
Seraypheap told defendant that "it was important for him to tell the truth" and that he "could be charged with all these 15 different shootings, with three homicides. It was important for him to tell the truth if he was not the shooter or if he was the shooter. [Seraypheap] told him that it could be that he was present at the time of the shootings, but he was not the shooter." According to Seraypheap, "the punishment for a shooter is a lot more severe than just being present at an incident." Defendant denied knowing anything.
Seraypheap said that defendant "was young and there wasnt too much that the justice system could do to him and for him to tell the truth." But Seraypheap also told defendant "he could spend the rest of his life in prison if he was charged with all these different 15 shootings." Defendant did not admit involvement in any crimes other than the Bedlow Drive incident. He confirmed his earlier statement that he was the shooter at the drive-by on Bedlow Drive, and said Hin gave the gun to a TRG named Sokha after the shooting. The interview lasted 30 to 45 minutes.
Seraypheap reviewed mug shot photos of persons named Sokha for about 15 minutes and then spoke again with defendant, who asked how much time he would get for the different shootings. Seraypheap replied that he "did not know for sure" and "theres a difference between being a shooter and a non-shooter type thing." He told defendant that "there should be no reason why he should be charged [with] being involved or being a shooter in American Legion Park if he wasnt the shooter. And since the gun was used in all these different shootings and he could be charged with it." He repeatedly urged defendant to be truthful. Finally, defendant told Seraypheap, "The park was mine," referring to the American Legion Park shootings. However, he said he was not the shooter; he merely took the victims property, and Hin shot them. Defendant said that the same gun used at American Legion Park was used in the Bedlow Drive shootings. At that point, Seraypheap stopped the interview because it was not being recorded.
Defendant was taken to a room with videotape capabilities, and Seraypheap and Reyes began interviewing him again at 6:26 p.m. Seraypheap asked if defendant remembered the rights he had been advised of previously. Defendant acknowledged he did. He then reiterated his involvement in the American Legion Park shootings, including his claim that he was not the shooter.
Thereafter, Seraypheap interviewed Hin, who admitted committing the robbery with defendant, but claimed that defendant was the person who shot the victims.
Seraypheap interviewed defendant again at 10:24 p.m. because Hin had said defendant was the shooter. This time, defendant stated that he was armed with the gun and shot the victims when Hin told him to "shoot `em." Defendant identified the nine-millimeter pistol he used at American Legion Park and at Bedlow Drive. He never asked for an attorney and never indicated that he did not want to speak with Seraypheap.
Defense counsel argued that defendants statements about the Bedlow Drive shootings must be suppressed because he did not receive proper Miranda advisements or waive his rights. He also said defendants statements about the American Legion Park shootings had to be suppressed because (1) defendant never waived his Miranda rights, and (2) defendants statements were the involuntary result of a lengthy period of interrogation, and of misrepresentations by Seraypheap about the consequences defendant faced as a juvenile and as a non-shooter.
The court ruled that (1) defendant received proper Miranda advisements on multiple occasions, and impliedly waived his right to remain silent, (2) although Seraypheap made some questionable comments to defendant, viewed in context they were not improper promises of leniency or material misrepresentations about the consequences defendant faced, and (3) there was no evidence that defendants confession was involuntary or the result of coercion.
B
Defendant argues the trial court erred in finding he waived his right to remain silent. Again, we disagree because the circumstances support the trial courts determination that defendant was informed of his Miranda rights and waived them.
"[A]n express waiver [of Miranda rights] is not required where a defendants actions make clear that a waiver is intended." (People v. Whitson (1998) 17 Cal.4th 229, 250; North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292], ["in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated"].) An indication by the defendant that he understood the Miranda advisement and a subsequent response to questions demonstrate a knowing and intelligent agreement to speak with authorities. (People v. Whitson, supra, 17 Cal.4th at pp. 247-250 [willingness to speak with the police readily apparent from defendants responses]; People v. Medina (1995) 11 Cal.4th 694, 752 [express statement of waiver not required when defendant was read his rights and thereafter made a statement]; People v. Sully (1991) 53 Cal.3d 1195, 1233 [implied waiver found when defendant was advised of his rights, said he understood them, and then gave a statement].)
That is what occurred here. Defendant was advised of his Miranda rights by the arresting officer, and was reminded of his rights by Nance, Gall, and Seraypheap. Defendant stated repeatedly that he understood, and spoke with the officers without requesting the assistance of an attorney or invoking his right to remain silent. Although the police did not obtain an express waiver of defendants Miranda rights, the number of times they advised him of his rights and the fact he chose to speak with them supports an inference that he impliedly waived his Miranda rights. (People v. Whitson, supra, 17 Cal.4th at pp. 247-250.)
In the second short interview by Nance and Gall at 3:00 a.m., within a few hours of his arrest, defendant confessed to committing the Bedlow Drive shootings. He points to no evidence that this confession was the result of coercion or overbearing conduct; he just intimates it was the result of an inappropriate readvisement of his rights by Gall, who minimized their importance by stating that the officers needed only "to clear a couple little things up. Its not that big of a deal." Although Gall made those statements, he did so during the third interview at 5:00 a.m., after defendant had already confessed during the second interview at 3:00 a.m. Thus, Galls statements did not cause defendants confession to the Bedlow Drive crimes.
Defendant claims his statements regarding the American Legion Park crimes were not voluntary and were the result of psychological coercion resulting from his youth and the length of time he was in custody and interrogated, which caused him to suffer mental fatigue.
Courts have rejected claims that juveniles, as a group, lack the psychological maturity and cognitive capacity to waive Miranda rights. (Fare v. Michael C. (1979) 442 U.S. 707, 725 [61 L.Ed.2d 197, 212-213; People v. Lara (1967) 67 Cal.2d 365, 378-379.) "[A] minor can effectively waive his constitutional rights." (People v. Prysock (1982) 127 Cal.App.3d 972, 989.) And "while mental condition is relevant to an individuals susceptibility to police coercion, a confession must result from coercive state activity before it may be considered involuntary." (People v. Smith, supra, 40 Cal.4th at p. 502.)
Here, none of the interviews were excessively lengthy, and defendant was given the opportunity to rest and eat during the 14 hours between his arrest and his eventual confession to the American Legion Park crimes. Detective Seraypheaps conduct was not overbearing or intimidating, and he repeatedly urged defendant to tell the truth.
Defendant asserts Seraypheap said that defendant would not face any serious consequences if he admitted to something less than being the shooter and that because he was a juvenile, there was not much the system could do to him. Defendant interprets this as an implied promise he would not be seriously punished if he confessed to being involved as a non-shooter. We are not persuaded.
Express or implied promises of leniency or advantage to the accused, if it is a motivating cause of the confession, are sufficient to invalidate the resulting statements and to make them involuntary and inadmissible as a matter of law. (People v. Ray (1996) 13 Cal.4th 313, 339.) Where there is a claim that a statement is involuntary because of a false promise of leniency, "[t]he line `can be a fine one [citation] between urging a suspect to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible, and impliedly promising lenient treatment in exchange for a confession, which is not." (People v. Holloway (2004) 33 Cal.4th 96, 117.)
Here, Detective Seraypheaps statements, viewed in context, do not amount to an implied promise of leniency if defendant confessed. Seraypheap did not promise that because defendant was a juvenile, he would not be punished if he committed the American Legion Park crimes. Seraypheap simply indicated that the justice system would not do much to a juvenile who was merely "present" when the crimes were committed; i.e., not an active participant. And he expressly stated that defendant could spend the rest of his life in prison if charged with all of the 15 crimes that Seraypheap alleged were committed with the weapon used in the Bedlow Drive and American Legion Park crimes. Although Seraypheap was aware there had been only six or seven shootings, not 15, and only two homicides, not three, his exaggeration was not a material deception. (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 [trickery in a criminal interrogation does not, by itself, render a confession involuntary so long as the officers misrepresentations or omissions are not a kind likely to produce a false confession]; see also People v. Jones (1998) 17 Cal.4th 279, 299 [officer implied he could prove more than he actually could]; People v. Thompson, supra, 50 Cal.3d at p. 167 [officers repeatedly lied, insisting they had evidence linking the suspect to a homicide].) Seraypheaps point was that the gun had been used in more than one crime and that the defendant could be charged with all of them unless he was not involved. This was permissible.
Seraypheap did state "theres a difference between being a shooter and a non-shooter type thing," whereas the law of aiding and abetting does not require one to be the actual shooter to be convicted of murder. However, unlike in People v. Cahill (1994) 22 Cal.App.4th 296, upon which defendant relies, Seraypheap did not give defendant a detailed but "materially deceptive" account of the applicable law regarding being the shooter and being an aider and abettor. (Id. at p. 315.) He did not lead defendant to believe he could avoid any charges by admitting a role in the crime. (Id. at pp. 306, 314-315.) Seraypheap did not promise or discuss a specific benefit in terms of lesser charges; he was simply responding to defendants question about how much time he could receive for all of the shootings. We interpret his reply as an inartful way of stating that it depended upon the degree of defendants involvement. "[C]onsidering all the circumstances of this case, we do not believe [Seraypheap] crossed that line by . . . suggesting that defendant might benefit in an unspecified manner from giving a truthful, mitigated account of events." (People v. Holloway, supra, 33 Cal.4th at p. 117.)
The videotape and interview transcripts, and the totality of the circumstances, demonstrate defendants statements were voluntary and not coerced. It is readily apparent that defendants "`will" was not "`overborne at the time he confessed." (People v. Maury (2003) 30 Cal.4th 342, 404; see also, e.g., In re Shawn D., supra, 20 Cal.App.4th at p. 208.) He was treated respectfully, was asked if he needed anything, was fed, and was given an opportunity to rest between the interviews; and none of the individual interviews were overly lengthy.
In sum, defendants statements were voluntary as there was (1) no discussion by the police of anything other than defendant cooperating and telling the truth, (2) no undue pressure amounting to coercion, (3) no express or implied promise of any specific benefits he might receive or any harm that might occur if he did not confess, and (4) no dishonesty and trickery that amounted to a false promise. (People v. Holloway, supra, 33 Cal.4th at p. 115.)
Under the totality of the circumstances, defendants statements were voluntary, and the court correctly allowed their introduction into evidence at trial.
IV
Defendant asserts the court erred in excluding third party culpability evidence that would have cast doubt on defendants responsibility for the American Legion Park crimes committed in October 2003. We disagree.
Third party culpability evidence is admissible if it is capable of raising a reasonable doubt of the defendants guilt; but there is no requirement that any evidence, however remote, must be admitted to show a third partys possible culpability for the crime. Evidence of the mere motive or opportunity of another to commit the crime, "`"without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." [Citations.] `[I]n making these assessments, "courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible [citation] unless its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion [citation]." [Citation.]" (People v. Prince (2007) 40 Cal.4th 1179, 1242, original italics.)
In support of his motion, defendant submitted a handwritten letter written by, and confiscated from, Reachhetra Pheng while Pheng was incarcerated on pending murder charges. According to Myrtle Smith, a teacher who occasionally worked at juvenile hall, Pheng was one of her students and had written the letter in early October 2005. Smith had assigned her students to write an essay concerning a history video she had shown the class. She noticed Pheng was not writing the assigned essay. When he claimed to be writing a letter, she told him it was not the appropriate time to do so and took it from him. Due to the letters rhythmic content, Smith thought Pheng had written a rap song or poem.
The letter may be summarized as follows: Asking God for forgiveness for "commit[ing] murder again," Pheng wrote, "Ive got a confession, so just hear me out. Ive got something to tell that no one knows about. [¶] Ive been bangin ever since 2001, when my homie Kak gave me my first gun." "I got put on Tiny Rascal Gang. [¶] A year later in 2002, I got jumped by some foolz and my homie Kak came thru. He busted a couple of heads and blood on his shoe." "Later that dark night," Pheng committed a drive-by shooting in a van. In September 2003, "someone got popped. The person who did it was me and my Glock." According to Pheng, defendant "got caught," "took the rap" for him, and "got 100 years to life." Pheng realized that is how his life could be, and decided to follow Jesus Christ instead and prayed every night.
Due to the incriminating nature of the statements in his letter, Pheng exercised his Fifth Amendment right not to testify. Defendant argued the letter was admissible as a declaration against interest under Evidence Code section 1230, which provides that "[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." One who requests the admission of evidence pursuant to this exception must show the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Lawley (2002) 27 Cal.4th 102, 153.)
The court ruled as follows: Pheng had written the letter and was unavailable as a witness. However, because he had a strong motive to help his fellow gang members by falsely confessing, the letter was not reliable evidence that Pheng had committed the charged crime. There was no assurance the letter was an actual confession, rather than a fictional rhyme. Even if the letter was reliable, it was unclear which crime Pheng was admitting; he claimed to have popped someone in September 2003, but the charged offenses occurred in October and November. The only offense that occurred in September was the Hammer and Lan Ark drive-by shooting, which was admitted solely as a predicate offense to show defendants gang affiliation. Therefore, the letter was not relevant to the charged murder and attempted murders. The probative value of the evidence was minimal and was outweighed by its prejudicial effect and the likelihood of confusing and misleading the jury. Thus, the court excluded the letter pursuant to Evidence Code section 352.
Defendant argues that the inculpatory portions of the letter were admissible as a declaration against interest and that the court violated his constitutional right to due process by excluding the third party culpability evidence. In defendants view, Phengs claim that he "popped" someone was reliable because it would be bad gang etiquette to take credit for defendants crime; in addition, the statement was reliable because by claiming he committed murder again, Pheng inculpated himself with respect to the murder for which he was currently charged and awaiting trial. According to defendant, although Pheng claimed to have committed the offense in September 2003 with a nine-millimeter Glock, he could not have been referring to the Hammer and Lan Ark shooting because different caliber bullets were recovered from that crime scene. Therefore, defendant argues, the evidence created a reasonable doubt regarding whether Pheng, not defendant, committed the American Legion Park offenses. Not so.
Using defendants logic, Pheng was not referring to the American Legion Park crimes either because they were committed in October 2003 with a Beretta nine-millimeter pistol, not in September 2003 with a Glock. Moreover, at the time Pheng wrote his rap ode to defendant, the murder trial had not been completed and defendant had not "got 100 years to life." This suggests that Phengs ditty was simply fictional. At best, it is too speculative that he was referring to the American Legion Park crimes.
There is no requirement "`"that any evidence, however remote, must be admitted to show a third partys possible culpability. . . . [T]here must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime."" (People v. Prince, supra, 40 Cal.4th at p. 1242, italics omitted.) Defendants evidence does not meet this standard, and its marginal relevance, if any, was outweighed by the undue consumption of time and confusion that would ensue if the parties attempted to litigate the true meaning of the letter.
Although "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense" (Chambers v. Mississippi (1973) 410 U.S. 284, 302 [35 L.Ed.2d 297, 312]), evidence proffered to show third party culpability "`may be excluded [without violating the federal Constitution] where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendants trial." (Holmes v. South Carolina (2006) 547 U.S. 319, 327 [164 L.Ed.2d 503, 510-511]; see also People v. Prince, supra, 40 Cal.4th at p. 1243 ["`[W]e . . . reject defendants various claims that the trial courts exclusion of the proffered [third party culpability] evidence [under Evidence Code sections 350 and 352] violated his federal constitutional rights to present a defense . . . . There was no error under state law, and we have long observed that, "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [state or federal constitutional] right to present a defense""].)
The trial court did not err in excluding Phengs letter pursuant to Evidence Code section 352.
V
Defendant contends the five attempted murder counts arising out of the drive-by shootings on Bedlow Drive are not supported by substantial evidence. In his view, there is insufficient evidence that he intended to kill anyone; at most, the evidence shows he committed assault with a deadly weapon and shooting at an inhabited dwelling.
As we shall explain, substantial evidence supports defendants convictions for attempted murder for the three victims shot in the carport (counts 6, 7, and 9), but there is no substantial evidence that defendant specifically intended to kill the two victims inside the adjacent triplex (counts 5 and 8).
Defendants argument is premised in part on People v. Bland (2002) 28 Cal.4th 313 (hereafter Bland), which held that attempted murder requires the specific "inten[t] to kill the alleged victim, not someone else. The defendants mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Bland, supra, 28 Cal.4th at p. 328.) However, Bland also held there could be a concurrent intent such that "a person who shoots at a group of people [may still] be punished for the actions towards everyone in the group even if that person primarily targeted only one of them." (Id. at p. 329.) Concurrent intent can be inferred "`when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity," which is referred to as a "kill zone." (Ibid.)
Defendant asserts the prosecutor never selected anyone in particular as a primary target, and intimates the "kill zone" theory does not apply. He claims he had no animus toward anyone in the carport and did not even see the victims in the house. At most, he argues, the evidence showed implied malice, but this is not sufficient to establish a specific intent to kill for purposes of premeditated attempted murder. Thus, according to defendant, the evidence shows only assault with a deadly weapon and shooting at an inhabited dwelling.
In assessing the sufficiency of the evidence, we must view the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Viewed in this light, the evidence showed the following: Defendant was a member of the Tiny Rascal Gang. The Asian Street Walker gang, a subsidiary of the Crips, was a rival of the Tiny Rascal Gang. The Asian Street Walkers were known to claim the Bedlow Drive area as their gang turf. On the night of the shooting, young Southeast Asian people were congregating in the carport area of a residence on Bedlow Drive. Defendant believed that Crips were in the crowd. As defendant and his fellow gang members drove by, a Crip standing in the carport yelled out, "cuz," which made defendant think the Crip and other Crips in the carport "they want beef or something. They want to start something." When Crips in the carport raised their hands, defendant interpreted this as a challenge to fight. Defendant fired at least 16 shots, and up to 30 shots, wounding three people in the carport area and two people inside the adjacent triplex units.
This evidence supports an inference that defendant intended to kill the "cuz" calling member of the Crips, a rival gang, and the other Crips who raised their arms as a challenge to "start something," making them his primary targets but firing a hail of bullets at everyone in the vicinity in order to make sure he killed the primary victims. Thus, while it cannot be said that defendant intended to kill everyone in the carport, the evidence establishes that he intended to kill his primary targets and the concurrent intent to kill those next to them by creating a kill zone. (Bland, supra, 28 Cal.4th at p. 329.) In other words, the evidence supports the finding that defendant intended to kill the three victims in the carport who were hit by his gunfire.
Moreover, nothing in Bland, supra, 28 Cal.4th 313 suggests that proof of a primary target and kill zone is the only way to establish that defendant had the intent to kill the three victims he hit in the carport. "[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice." (People v. Smith (2005) 37 Cal.4th 733, 741-742; see also People v. Campos (2007) 156 Cal.App.4th 1228, 1242.)
Emphasizing that he shot many of the bullets into an empty van, defendant concludes this shows he did not intend to shoot anyone. But the fact that victims escaped death because of defendants poor marksmanship does not necessarily establish a less culpable state of mind. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) "[T]he very act of firing a weapon `"in a manner that could have inflicted a mortal wound had the bullet been on target" is sufficient to support an inference of intent to kill. [Citation.]" (People v. Smith, supra, 37 Cal.4th at p. 742.)
In sum, substantial evidence supports defendants convictions for attempted murder in counts 6, 7, and 9.
A different outcome is required, however, with respect to the attempted murder convictions in counts 5 and 8, which were based on the two victims injured inside two different units in the triplex adjacent to the carport. A bullet grazed Sobin Pens left elbow while he sat on a couch inside one unit, and a bullet that came through the window injured Sokhom Hing inside another unit. There is no evidence that defendant was aware of their presence inside the units. Absent such knowledge, it cannot be said he intentionally fired a lethal weapon at Pen and Hing at close range indicating an intent to kill them.
The attempted murder convictions cannot be based on a kill zone theory either because Pen and Hing were outside the kill zone that defendant created. His hail of bullets was directed at the Crips in the carport, not at the adjacent triplex. The fact that a few stray bullets hit the units does not establish that defendant harbored a concurrent intent to kill anyone inside. (Cf. People v. Vang (2001) 87 Cal.App.4th 554, 558-559, 563-565.) There is no evidence that defendant specifically intended to kill Pen and Hing.
Consequently, we shall reverse the attempted murder convictions in counts 5 and 8, Because we reverse based on the insufficiency of the evidence, double jeopardy bars a retrial of those counts. (Burks v. United States (1978) 437 U.S. 1, 2, 10, 18 [57 L.Ed.2d 1, 4, 8-9, 14]; People v. Pierce (1979) 24 Cal.3d 199, 209-210.)
VI
The court instructed the jury in the language of CALJIC No. 8.66.1, an instruction based on Bland, supra, 28 Cal.4th 313, as follows: "As to counts 5, 6, 7, 8 and 9 [the Bedlow Drive attempted murder charges], a person who primarily intends to kill one person may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the `kill zone. The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone within that victims vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a `kill zone, zone of risk, is an issue to be decided by you."
Defendant argues the instruction is unconstitutional because (1) it incorrectly states the law on concurrent intent, (2) it is vague and ambiguous, and (3) it creates an impermissible presumption. Defendants 60-page challenge to the instruction is not a model of clarity or brevity. As best we can discern, he believes that the instruction is an incorrect statement of the law and is ambiguous because it does not "mirror the law" on the kill zone theory of concurrent intent as stated in Bland. According to defendant, the instruction is infirm because it uses the phrase "nature and scope of the attack," which does not convey that the magnitude of the attack or means employed must be capable of killing everyone in the targeted area. In addition, he argues, the instructions use of the term "vicinity" is vague and ambiguous because it does not adequately establish the boundaries of the kill zone. Furthermore, he says, it creates an impermissible presumption that defendant intended to kill the attempted murder victims, allowing the jury to convict him without finding that he specifically intended to kill any of the victims. Defendants arguments are not persuasive.
CALJIC No. 8.66.1 correctly states the law. Indeed, the language about which defendant complains is taken directly from Bland, which expressly stated concurrent intent can be inferred "`when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity," which is referred to as a "kill zone." (Bland, supra, 28 Cal.4th at p. 329, quoting Ford v. State (1992) 625 A.2d 984, 1000.) The only difference is that the instruction substitutes "kill" and "killing" for "harm" and "harming," which is beneficial to defendant because it clarified that a finding of intent to kill will not be premised on an intent to harm.
If defendant believed this instruction was too ambiguous, he should have asked for appropriate amplifying language. (People v. Sully, supra, 53 Cal.3d at p. 1218; People v. Lang (1989) 49 Cal.3d 991, 1024; People v. Talamantes (1992) 11 Cal.App.4th 968, 975.) Defendant "is not entitled to remain mute at trial and scream foul on appeal for the courts failure to expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 Cal.App.4th 697, 714.)
We also disagree with his claim that the instruction created an impermissible presumption of "intent to kill." CALJIC No. 8.66.1 instructs that if it is reasonable to infer the defendant intended to kill a victim by killing everyone in the victims vicinity, then the defendant possessed a concurrent intent to kill the entire group of people, i.e., the primary victim as well as the bystanders. The instruction states: "The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity." This does not direct the jury to infer concurrent intent merely because bystanders happened to be in the vicinity. Rather, it says that if the jury reasonably finds the perpetrator intended to kill a primary victim by means of killing everyone in the area, then the jury has found the perpetrator possessed a concurrent intent to kill both the primary victim and the bystanders. This sets forth a definition, not a presumption. The next sentence of the instruction confirms this by advising the jury: "Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a kill zone is an issue to be decided by you."
Contrary to defendants implication, the instruction does not predicate liability on reckless conduct or the mere creation of a risk to the bystanders. The instruction predicates liability on evidence that defendant intended to kill more people than just the primary target.
In reviewing an erroneous instruction claim, we must decide whether there is a reasonable likelihood the jury applied the challenged instruction in a way that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) In conducting this inquiry, we must view the challenged instruction in the context of the overall charge, rather than judged in artificial isolation. (Ibid.; see also People v. Smithey (1999) 20 Cal.4th 936, 963.) In other words, the suitability of jury instructions is determined by the whole charge given to the jury, not individual instructions or parts of individual instructions. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
The court outlined the elements of attempted murder in CALJIC No. 8.66, which told jurors that to convict defendant of attempted murder, they must find he intended to kill the victims. The court also instructed the jury that it must consider the instructions as a whole and in light of all the others. (CALJIC No. 1.01.) When CALJIC No. 8.66.1 is read in the context of the other jury instructions, it is not reasonably likely that the jury interpreted the instructions in the manner defendant suggests.
In any event, defendant was not prejudiced by the giving of CALJIC No. 8.66.1 because it was not reasonably probable that a verdict more favorable to him would have resulted if the "kill zone" instruction was omitted. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1157.) Defendant fired at least 16 shots, and up to 30 shots, at close range into a group of people in the carport. The method used, the magnitude of the risk involved, and defendants admitted animus toward Crips overwhelmingly support an inference that he intended to kill his victims. (People v. Smith, supra, 37 Cal.4th at p. 743; People v. Campos, supra, 156 Cal.App.4th at p. 1244.)
For all the reasons stated above, defendants challenge to CALJIC No. 8.66.1 fails.
VII
Defendant argues that if CALJIC No. 8.66.1 is constitutional, the court erred in neglecting to define the terms "kill zone" and "zone of risk" for the jury sua sponte.
As a general matter, "`a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Guiuan (1998) 18 Cal.4th 558, 570.) "Although trial courts, generally, have a duty to define technical terms that have meanings peculiar to the law, there is no duty to clarify, amplify, or otherwise instruct on commonly understood words or terms used in statutes or jury instructions." (People v. Griffin (2004) 33 Cal.4th 1015, 1022.) Where a phrase is commonly understood by speakers of the English language and is not used in a technical sense peculiar to the law, the trial court is under no duty to instruct the jury on the meaning of the phrase in the absence of a request. (People v. Estrada (1995) 11 Cal.4th 568, 574-575; People v. Frederick (2006) 142 Cal.App.4th 400, 419-420.) "A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning." (People v. Estrada, supra, 11 Cal.4th at p. 574.)
The commonsense meaning of "zone of risk" or "kill zone" is the vicinity surrounding the primary target at whom the defendant unleashed his lethal attack. The instruction amply conveyed this, and it is not a technical legal concept that the court was required to define sua sponte. (See, e.g., People v. Rodriguez (2002) 28 Cal.4th 543, 547 [no sua sponte duty to instruct on meaning of "recurring access" as used in offense of continuous sexual abuse of a child]; People v. Estrada, supra, 11 Cal.4th at pp. 574, 581 [no sua sponte duty to instruct on meaning of "reckless indifference to human life"]; People v. Rowland (1992) 4 Cal.4th 238, 270-271 [no sua sponte duty to instruct on meaning of "while engaged in"].)
Defendant was obligated to request any clarifying or amplifying instructions, and "`error cannot now be predicated upon the trial courts failure to give them on its own motion. [Citation.]" (People v. Talamantes, supra, 11 Cal.App.4th at pp. 974-975.)
Besides, the absence of a definition of the aforementioned terms was harmless beyond a reasonable doubt for reasons stated in part VI of this opinion.
VIII
Next, defendant contends he was prejudiced by prosecutorial misconduct in various respects during the prosecutors argument to the jury.
"A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44.) "[W]e `do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.]" (People v. Frye, supra, 18 Cal.4th at p. 970.) Acts of prosecutorial misconduct do not justify the reversal of a conviction "unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.)
A defendant may not complain on appeal of prosecutorial misconduct unless defense counsel objected in a timely fashion and on the same ground in the trial court, and also requested that the jury be admonished to disregard the perceived impropriety. (People v. Thornton (2007) 41 Cal.4th 391, 454.) Where defense counsel fails to do so, the defendant can argue on appeal that counsels inaction deprived defendant of the constitutional right to the effective assistance of counsel. (People v. Lopez (2008) 42 Cal.4th 960, 966.)
Observing that defense counsel did not object to all of the instances of misconduct, defendant argues that if counsels omission undermines any of his appellate claims of prosecutorial misconduct, then he received ineffective assistance of counsel.
As we explained in part II, ante, to succeed on a claim of ineffective assistance of counsel, defendant must prove that (1) counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsels failings, the result would have been more favorable to defendant. (Strickland v. Washington, supra, 466 U.S. at pp. 686-688, 693-694 [80 L.Ed.2d at pp. 693-694, 697-698]; People v. Kelly, supra, 1 Cal.4th at p. 520.) "The appellate record, however, rarely shows that the failure to object was the result of counsels incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsels actions or omissions can be explored. [Citation.]" (People v. Lopez, supra, 42 Cal.4th at p. 966.)
A
First, defendant asserts the prosecutor misstated the law regarding the kill zone theory of concurrent intent, discussed in parts V and VI, ante. Because defense counsel did not object to the prosecutors statements, the claim is forfeited. (People v. Thornton, supra, 41 Cal.4th at p. 454.) In any event, part of defendants claim is based on his contention that CALJIC No. 8.66.1 is an incorrect statement of the law. As we explained in part VI, the instruction is not infirm. Thus, statements made by the prosecutor that expressly conformed to CALJIC No. 8.66.1 were not inappropriate, and defendants challenge to those statements lacks merit.
The prosecutor began by properly explaining the kill zone theory in accordance with CALJIC No. 8.66.1, and asserted that defendant attempted to kill rival gang members he believed to be in the carport by attempting to kill everyone present in the zone of risk. The prosecutor then stated that "because each one of these individuals is in the zone of harm or in this kill zone, [defendant] is in fact liable for this attempted murder even for individuals that he did not in fact see, individuals that were in fact behind walls, the individuals that were in fact behind doors. This is what [CALJIC No. 8.66.1] means and which — this is what this law means that we see here that is why hes in fact liable for five attempted murders during these proceedings." (Italics added.) According to the prosecutor, the People could have charged a count of attempted murder for everyone under the carport, but chose to pursue charges only for each person struck by gunfire.
Defendant believes this argument incorrectly stated the law. He relies on People v. Anzalone (2006) 141 Cal.App.4th 380 (hereafter Anzalone), where the prosecutor argued that four attempted murder counts could be based upon two gunshots because the accused indiscriminately shot into a crowd, which meant that everyone in the zone of danger qualified as an attempted murder victim. (Id. at p. 391.) Anzalone held: "Contrary to the prosecutors argument, an attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them. The prosecutors argument incorrectly suggests that a defendant may be found guilty of the attempted murder of someone he does not intend to kill simply because the victim is in some undefined zone of danger. In fact, to be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person. [¶] The prosecutors argument concerning zone of danger was erroneous and misleading." (Id. at pp. 392-393.) The error was prejudicial because the jurors were not instructed with CALJIC No. 8.66.1, which would have informed them of the proper application of a kill zone theory. (Id. at pp. 392, 395.)
Here, the prosecutor did not argue that merely shooting into a crowd of people made defendant guilty of attempted murder for everyone present. He argued that defendant theoretically was liable for attempted murder for all people in the carport, van and residences—seen or unseen—because he was attempting to kill everyone in order to kill the rival gang members who were present, i.e., his primary target. Nevertheless, the prosecutor opted to charge defendant with only five attempted murders based on the five people wounded by the 16 to 30 shots fired by defendant.
The portion of the prosecutors argument applying the kill zone theory to unseen persons in the triplex units (Pen and Hing) was erroneous because they were outside of the kill zone created by defendant. But the error is harmless because we will reverse those two attempted murder convictions for the reasons stated in part V, ante.
The remainder of the prosecutors argument essentially comports with the kill zone theory addressed in Bland, supra, 28 Cal.4th 313 and CALJIC No. 8.66.1. And, unlike in Anzalone, the trial court properly instructed the jury with CALJIC No. 8.66.1, and also instructed the jury that "[i]f anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions." (CALJIC No. 1.00.) Absent any contrary indication, we presume the jury followed this instruction. (People v. Jablonski (2006) 37 Cal.4th 774, 806-807; People v. Boyette (2002) 29 Cal.4th 381, 436.)
B
According to defendant, the prosecutor prejudicially misstated or speculated about the evidence in various respects. Defendants complaints are forfeited because he did not raise them in the trial court. (People v. Thornton, supra, 41 Cal.4th at p. 454.) His alternate claim of ineffective assistance of counsel fails because no prejudicial misconduct occurred.
Defendant criticizes comments the prosecutor made after defense counsel argued that (1) defendant and Hin were the actual victims, who shot at the Bedlow Drive crowd only in self-defense, (2) because it was raining heavily that night but the van was not wet inside when it was stopped by the police, the Bedlow Drive witnesses lied about shots coming out of Hins open van door, and (3) there were no gun shells from the guns the Bedlow Drive victims allegedly were armed with because "somebody had prettied up the crime scene."
The prosecutor responded: "Why wasnt the floorboard wet? Why werent the defendant[]s wet? Four hours they had [not been] observed. True victims call[] the police. True victims in fact go to the police station afterwards. True victims dont in fact tamper with evidence. [¶] One victim in this case tampered with evidence, thats [defendant]. There were 16 shell casings, where did they go? The car was cleaned out, they were gone. [¶] There were two guns in the car. Where did they go? [Defendant] was the one in fact took them out. [¶] Why is this conduct in fact being done? He did it because he knows he was guilty and he didnt want to be caught." The prosecutor later returned to this topic, stating that defendant and his cohorts had four hours to clean up and remove the shell casings and gun from the van.
Defendant contends the argument was misconduct because there was no evidence at trial that defendant tampered with evidence; in fact, Bun said Hin gave the guns to Bun, not defendant, and only two shell casings were found in the van, which is inconsistent with anyone attempting to hide evidence.
Defendants arguments are based on an unreasonably restricted view of the latitude that is afforded during arguments to the jury. Generally, the prosecutor is given great leeway in making closing argument (People v. Farnam (2002) 28 Cal.4th 107, 200), and may engage in vigorous argument before the jury, drawing reasonable deductions and inferences from the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.) Viewed in this light, the prosecutors comments were a legitimate response to defense counsels comments and were based on reasonable inferences from the evidence.
Because the absence of rainwater inside the van suggested the door had not been open, defense counsel implied the witnesses who testified about the barrage of bullets coming from the open sliding door of the van were not truthful. According to counsel, defendant was the true victim and had been attacked by gunfire from the Bedlow Drive partygoers, who had removed their own shell casings from the scene to cover their tracks. The prosecutor appropriately responded to this theory with another one: The Bedlow Drive partygoers were the true victims, and defendant and Hin were the perpetrators who attempted to eliminate evidence of the crime. The absence of water was due to the four-hour time period between the shooting and the search of the van, during which defendant and his accomplices had ample time to dry out the van with a towel and remove the shell casings. That two casings remained in the van merely indicates they did not do a thorough job.
Because defendant and Hin had both approached Bun at Phleks party and sought Buns assistance in disposing of the guns they used in the Bedlow Drive shootings, it is reasonable for the prosecutor to argue that defendant and Hin were the ones who tried to hide the evidence.
Defendant also contests the prosecutors argument that the fact one shell casing was missing from the .44 magnum seized from Buns truck indicated that one shot had been fired from the gun during the Bedlow Drive shootings. Defendant intimates this was speculative rather than a reasonable inference from the evidence. We disagree. In any event, whether the inference the prosecutor drew from the evidence was reasonable was for the jury to decide. (People v. Lucas (1995) 12 Cal.4th 415, 474.)
Defendant accuses the prosecutor of misstating the evidence by claiming the crowd of people at Bedlow Drive were "all targeted like we see, at head and heart level," which established an express intent to kill. According to defendant, there was no evidence that the trajectories of the bullets showed the shooter aimed or targeted the head and heart level of the victims.
Assuming the prosecutors reference to the victims being targeted at head and heart level exceeded the bounds of vigorous yet fair argument, it was not prejudicial. The court instructed the jurors that they must determine the facts from the evidence received at trial (CALJIC No. 1.00), and that statements of counsel were not evidence (CALJIC No. 1.02). We presume the jurors followed these instructions. (People v. Jablonski, supra, 37 Cal.4th at pp. 806-807; People v. Boyette, supra, 29 Cal.4th at p. 436.) And, as discussed previously, the evidence amply demonstrated that defendant intended to kill his rival gang members during the Bedlow Drive shootings. It is not reasonably probable that a result more favorable to defendant would have been reached absent the alleged misconduct. (People v. Crew, supra, 31 Cal.4th at p. 839; People v. Arias (1996) 13 Cal.4th 92, 161.)
C
Defendant contends the prosecutor impermissibly vouched for the credibility of Officer Seraypheap. The contention requires contextual background.
While cross-examining Officer Gall, defense counsel asked about a "reward" that Gall and other officers received for cracking the bottle cap gun cases, which referred to the Beretta pistol used in the American Legion Park and Bedlow Drive crimes. Officers Nance and Graviette, and Detective Seraypheap, also received the City Managers Special Accomplishment Award, which included the equivalent of one weeks pay. Counsel asserted that the rewards were illegal bonuses.
During Seraypheaps testimony, he agreed with defense counsel that when he told defendant that nothing much would happen to him as a juvenile, it was a "flat-out untruth."
In his closing argument, defense counsel asserted that the police questioned defendant until they "came up with the version they were happy with," and that "the whole confession was crap." He stated: "Seraypheap — excuse me, Im sorry, Youn [the officers first name]. Ill start calling you an officer when you start behaving like one. That means not lying. [¶] Seraypheap lied. And as we now know, that lie means that . . . [defendant] cant get the death penalty. It would have been just as dishonorable to hand a loaded gun to a kid and say, I swear to God this gun isnt loaded. Put it in your hand and pull the trigger."
Thereafter, the prosecutor made two sets of comments to the jury, which defendant challenges on appeal.
In rebuttal to counsels attack on Detective Seraypheap, the prosecutor said: "And when I hear the statements yesterday and I hear them today, it starts dawning on me that, sure, [defendant] and the defense are upset with Detective Seraypheap, [a] man that was honored by his police department, honored by his city, given award — an award that I didnt even put into evidence, award that was brought out by the defense for his work on this case for stopping the TRG killing spree. Sure they are mad at him because Detective Seraypheap stopped his fun. Stopped his killing. Stopped his shooting up of Stockton. And now we got to blame it on somebody else. [¶] In this arena, its not unusual for the defense to in fact do that sort of thing and in these types of cases. It starts off, if you have the facts, you use the facts. If you have the law, you use the law. And if you dont have the facts or the law, you put everyone else on trial."
The prosecutor also responded to defendants claim of self-defense in the Bedlow Drive offenses and, in doing so, rejected defense counsels intimations that defendant was the victim of overzealous prosecution and police investigations, and "of a police officer that we heard no history about no way, shape or form. [Defense counsel] knows he owes Mr. Seraypheap an apology for what he said. That wasnt within the bounds of fair argument in any way, shape or form. But he said it. [¶] What evidence do you have? Mr. Seraypheap in fact took it because thats the classy guy that he in fact is. The person — the police officer he in fact is. He knows that in your job you make people unhappy day in and day out, especially individuals they arrest and especially individuals that he arrests for murder. And they take a shot at him because they got to take a shot at him. Going to put everyone else on trial. The fact of the matter is, freely and voluntarily, [defendant] told him facts that were known to the crime and he told that to Detective Reyes, he in fact told it to Gall and [Nance]. [¶] And it was Detective Seraypheap that made sure that the facts corroborated with the physical evidence and giving [defendant] every opportunity to do that and that was an opportunity that he still didnt avail himself when he told Detective Reyes that there were only two guns, two people shooting on Hammer and Lan Ark."
In defendants view, the prosecutors comments impermissibly vouched for Seraypheaps credibility. However, the only analysis he provides is: "The jury found that [defendant] was not the shooter at American Legion Park. Apparently, the jury agreed with [defendants] counsel that Seraypheap was a `liar but that does not excuse the prosecutor vouching for his investigators credibility and calling the illegal bonus Seraypheap received an `award."
Aside from the fact defendant forfeited his claim by failing to object to the prosecutors comments (People v. Thornton, supra, 41 Cal.4th at p. 454), his analysis is unconvincing because he does not explain how the prosecutors comments may be interpreted as impermissible vouching for prosecution evidence. (People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136 [appellants legal analysis must be connected to the evidence in the case].)
A prosecutors comments cannot be characterized as improper vouching if the prosecutors assurances regarding the honesty or reliability of a prosecution witness are based on the facts of the record and inferences reasonably drawn therefrom, rather than from any purported personal knowledge or belief. (People v. Bonilla (2007) 41 Cal.4th 313, 336-337.) In other words, there is no improper "vouching" for the credibility of a witness unless the prosecutor suggests personal knowledge of matters outside the record. (People v. Frye, supra, 18 Cal.4th at p. 971.)
Here, the prosecutors remarks did not suggest any such thing. He did not vouch for Detective Seraypheaps credibility based on facts outside the record—i.e., the prosecutors personal knowledge of this witness and his prior experience with him. His comments were based on evidence in the record introduced by defense counsel concerning the award that Seraypheap and other officers received. The prosecutor was entitled to refer to this award in rehabilitating the credibility of a witness that defense counsel had called a liar, and was entitled to comment on defense counsels theory.
"Nothing in the challenged remarks invited the jury to abdicate its responsibility to independently evaluate for itself whether [Seraypheap] should be believed. There was no prosecutorial misconduct." (People v. Bonilla, supra, 41 Cal.4th at p. 338.)
D
According to defendant, the prosecutor impermissibly commented on defendants silence during his detention.
The prosecutor argued that a witness who was willfully false in a material part of his testimony was to be distrusted in others, and pointed out that defendant was willfully false in many of his statements to the police during his interrogation. The prosecutor also questioned why, if the defense theory that defendant simply told the officers what they wanted to hear was correct, defendant did not simply confess to committing everything, including the Hammer and Lan Ark shootings. The prosecutor pointed out that the police interviews were low key, indicating they were not coercive. Then the prosecutor stated: "[Defendant] never asked why he was being detained. Now, isnt that kind of reasonable circumstances? Police officer pull you over, its after midnight, put you in the back of the car. `Whats the matter, Officer?"
Defense counsel objected, and the court advised the prosecutor to "rephrase that."
The prosecutor complied, stating: "Prior to being advised of his Miranda [r]ights, which was about ten minutes afterwards, and from the time he was taken out of the . . . van and put in the back of the patrol car, never once did he say, `Whats the matter, Officer? Anything up? You know, whats going on here?"
Defendants appellate argument is not clearly stated, but it appears he believes the prosecutors comments violatedDoyle v. Ohio (1976) 426 U.S. 610 (hereafter Doyle), in which the United States Supreme Court held it is a violation of due process for the prosecution to use a defendants silence following Miranda warnings to impeach the defendants subsequent explanation at trial. (Id. at p. 619 .) The Doyle rule is premised on the recognition that it is fundamentally unfair to "`permit the prosecution during the trial to call attention to [the defendants] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony." (Ibid.)
To establish Doyle error, defendant must show (1) the prosecution inappropriately used the defendants post-Miranda silence for impeachment purposes, and (2) the trial court permitted the prosecution to engage in such inquiry or argument. (People v. Champion (2005) 134 Cal.App.4th 1440, 1448; People v. Evans (1994) 25 Cal.App.4th 358, 368.) "Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights." (People v. Hurd (1998) 62 Cal.App.4th 1084, 1093.)
Here, the prosecutors comments referred to defendants failure to question the police about why he was being detained before he was arrested and received Miranda warnings. Once defendant was advised of his rights and chose to speak to the officers, any comments he made were fair game for impeachment purposes. Doyle does not apply, and no misconduct occurred.
E
Defendant contends the prosecutor committed misconduct by making an appeal to the jury to send a message to the TRG and convict defendant in order to protect community values, preserve civil order, and deter future lawbreaking, instead of weighing the evidence and making an individualized decision based on the evidence before it. He cites the prosecutors concluding remarks, in which the prosecutor urged the jury: "And because you know all the evidence in this case, because you now will go into the deliberations room and youll have the verdict forms in your hands, you send a message loud and clear to [defendant]. You send a message loud and clear to the TRG gang members and [defendant] that, plain and simple, this type of conduct is not going to be tolerated, no way, no shape, no how. [¶] That when you constantly prey upon individuals, that when you in fact use your gang to carry out activities that could only be described as in civilized society as serial killing, that you are going to be found guilty of each and every crime that you commit to the full extent of the law. [¶] You send a message to them loud and clear that we will not tolerate you opening fire upon our sons, our daughters, our citizens. And that we are not going to have you kill a young man on a date. And we are not going to have you attempt to kill his 17-year-old girlfriend. You send him a message loud and clear."
There is a fine line between proper argument and misconduct where a prosecutor asks the jury to send a message. For example, U.S. v. Alloway (6th Cir. 1968) 397 F.2d 105 held that there was no misconduct where the prosecutor in an armed robbery case said: "`Im calling on this jury to speak out for the community and let the John Alloways know that this type of conduct will not be tolerated." (Id. at p. 113.) But U.S. v. Solivan (6th Cir. 1991) 937 F.2d 1146 held the prosecutor crossed the line by asking the jury to send a message and consider the impact a conviction would have on the "War on Drugs." This diverted the jurys attention away from the facts and towards a controversial national social issue. (Id. at p. 1155.)
The prosecutors remarks in this case did not cross the fine line. He made this remark as a conclusion to an argument about the facts of the offenses. The prosecutor did not ask the jury to ignore the evidence, but to send a message because of it. The prosecutors somewhat impassioned condemnation of gang violence did not transgress the boundaries of permissible advocacy. Although he asked the jurors to send gang members a message that gun battles will not be tolerated and that gang members who kill will be held liable for their conduct, his emphasis was in fact defendants individual accountability. The prosecutor encouraged the jury to hold defendant responsible for indiscriminately killing people. The prosecutor did not thereby insinuate a dilution in the burden of proof or ask the jury to convict not based on the evidence, but to curb gang violence in the community. Defendant has not shown how the prosecutors remarks, in the context of the argument as a whole, were either deceptive or reprehensible. (People v. Dennis (1998) 17 Cal.4th 468, 522.)
In any event, defendant has not shown that he was prejudiced. The court instructed the jurors that they "must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." (CALJIC No. 1.00.) We presume that the jury followed that instruction. (People v. Jablonski, supra, 37 Cal.4th at pp. 806-807; People v. Boyette, supra, 29 Cal.4th at p. 436.) In light of the properly admitted evidence that defendants motive for the Bedlow Drive shootings was gang-related, and his admission that he committed the Bedlow Drive shootings and American Legion Park crimes, the prosecutors isolated remarks were harmless. (People v. Brown (2003) 31 Cal.4th 518, 554.)
In sum, defendant has failed to establish any prejudicial prosecutorial misconduct that warrants the reversal of any of his convictions.
IX
Defendant argues the judgment must be reversed based on the cumulative effect of alleged errors discussed in parts I through VIII of the opinion.
The contention fails because "no serious errors occurred that, whether viewed individually or in combination, could possibly have affected the jurys verdict." (People v. Martinez (2003) 31 Cal.4th 673, 704; People v. Valdez, supra, 32 Cal.4th at p. 128.)
X
In reviewing defendants contentions, we discovered the court erred in sentencing him. It imposed five consecutive life terms for the convictions for willful and premeditated attempted murder arising from the Bedlow Drive shootings (counts 5-9), but also imposed five consecutive terms of 15 years to life for the gang enhancements under section 186.22, subdivision (b)(1) of the Penal Code. (Further section references are to this code.)
Section 186.22, subdivision (b)(1) specifies an enhancement of two to ten years "[e]xcept as provided in paragraphs (4) and (5)." Paragraph (5) states in relevant part that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served," rather than the minimum term of seven years (§ 3046) required of those convicted of the same offense without the criminal street gang enhancement.
"For these felonies, the gang enhancement provision does not alter the indeterminate term of life imprisonment; it merely prescribes the minimum period the defendant must serve before becoming eligible for parole. [Citation.] Thus, for these felonies, the gang enhancement provision does not increase the life term for the underlying offense." (People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)
"The crime of attempted willful, deliberate, and premeditated murder falls within the gang statutes category of offenses punishable by an indeterminate term of imprisonment for life. . . . There is no increase in the maximum statutory penalty for the crime of attempted murder, which remains `imprisonment in the state prison for life with the possibility of parole. (§ 664, subd. (a).)" (People v. Sengpadychith, supra, 26 Cal.4th at p. 328.)
Therefore, the court erred in imposing enhancements of 15 years to life for the attempted murders at Bedlow Drive.
DISPOSITION
The convictions for counts 5 and 8 are reversed, and their related enhancements are vacated. The judgment is modified by striking the enhancements of 15 years to life on counts 6, 7, and 9, and by replacing them with a 15-year minimum parole eligibility date (Pen. Code, § 186.22, subd. (b)(5)). As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
HULL, J.
BUTZ, J.
Defendants argument heading indicates he also challenges the sufficiency of the evidence establishing the attempted murders were committed with premeditation and deliberation. Because he provides no analysis and legal authority in support of this claim, it is forfeited. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed]; see also People v. Gurule (2002) 28 Cal.4th 557, 619; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159.) In any event, such a claim lacks merit.