Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA285702, Jose I. Sandoval, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Appellant Alonzo Deon King appeals from his conviction of two counts of second degree murder (Pen. Code, § 187, subd. (a)), and one count of possession of a firearm by a felon. (§ 12021, subd. (a)(1).) The jury found firearm and gang enhancements to be true. (§§ 12022.53, subds. (b)-(d); 186.22, subd. (c).) Appellant argues that the cumulative effect of several errors at trial resulted in prejudice, requiring reversal. The asserted errors are: (1) admission of evidence lacking foundation; (2) admission of impermissible expert testimony; (3) impeachment of appellant by the fact of previous arrests; and (4) faulty jury instructions. Upon review of the record we find that some errors were made but that, individually or cumulatively, they did not result in prejudice in light of the overwhelming evidence of appellant’s guilt. Appellant also argues, and respondent agrees, that the trial court erred in its imposition of 10-year sentences for each gang enhancement, and failed to impose and stay 20-year firearm enhancements pursuant to section 12022.53, subdivision (c). We modify the sentence to strike the 10-year gang enhancements, impose a 15-year minimum parole eligibility for each count, and impose and stay 20-year and 10-year firearm enhancements for each count.
All unspecified statutory references are to the Penal Code.
Finding no prejudicial error, we affirm the judgment as modified.
FACTUAL AND PROCEDURAL SUMMARY
Because appellant does not challenge the sufficiency of the evidence to support his convictions, we briefly summarize the facts underlying those offenses. (People v. Ghent (1987) 43 Cal.3d 739, 748.)
The evidence at trial showed that on June 9, 2005 Roger Lewis had been selling drugs from his car for approximately two hours while his nephew Andre Burnham slept in the front seat. Lewis’s car was parked in the driveway of Gertrude Sampson’s home on East 28th Street in Los Angeles. As Lewis stood outside the car, a white truck or sport utility vehicle pulled up to the curb at the same location. Lewis got inside his car as two men exited the white truck and approached his passenger side window. One of the men opened fire with a semiautomatic weapon, and Lewis crashed his car into a tree while attempting to flee. Lewis sustained two gunshot wounds and died at the scene. Burnham was shot in the head and died from his injuries some three months later. An eyewitness, Sampson, told police officers that appellant, known by the moniker Devil, was the driver of the white vehicle and was accompanied at the scene of the crime by Lil Devil (who was identified as appellant’s son or little brother) and by Shawn Nevis.
Appellant was charged by information with the murder of Roger Lewis (§ 187, subd. (a); count 1), the murder of Andre Burnam (§ 187, subd. (a); count 2), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3). The information alleged a special circumstance of multiple murder. (§ 190.2, subd. (a)(3).) It alleged that appellant committed the murders to benefit a criminal street gang pursuant to section 186.22, subdivision (b)(1)(a), and that he personally and intentionally discharged a firearm during the commission of the offense. (§ 12022.53, subds. (b)-(d).) The information also alleged that the gang association should result in an enhanced sentence within the meaning of section 186.22, subdivision (b)(4). Respondent did not seek the death penalty.
Appellant denied culpability, and maintained that he was in Houma, Louisiana at the time of the shooting. Evidence was presented that appellant owned a white Chevy Tahoe that had been painted grey when it was recovered in Louisiana. Appellant made statements to Donald Clark and other friends in recorded collect telephone calls while he was in a Louisiana jail, pending extradition to California. In one conversation he asked for help establishing his alibi that he was in Louisiana at the time of the shooting. He also asked for help dissuading potential witnesses from testifying. Clark testified that appellant admitted killing Lewis in retribution for a debt that Lewis owed him, and in order to defend his drug dealing territory.
Appellant was convicted of two counts of second degree murder (§ 187, subd. (a)), and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury found firearm and gang enhancements to be true. (§§ 12022.53, subds. (b)-(d); 186.22, subd. (c).) The trial court stayed imposition of sentence for violation of section 12021, subdivision (a)(1) pursuant to section 694, and sentenced appellant to a total aggregate sentence of 100 years to life.
DISCUSSION
I
Appellant argues that four errors at trial cumulatively resulted in prejudice which denied him a fair trial. We address each claim of error separately. (People v. Williams (2009) 170 Cal.App.4th 587, 595-596.)
A
Appellant first argues the trial court erred in admitting portions of the recording of a statement by Curtis Smith, Jr., to Detective Salaam Abdul. Smith was a minor in police custody who told officers he wanted to speak with Detective Abdul about a murder. Appellant claims Smith’s statement lacked foundation. He also argues that it should have been excluded as being more prejudicial than probative. (Evid. Code, § 352 (section 352).)
Although appellant objected to Smith’s statements as hearsay, he now contends they lacked foundation because there was no indication that Smith had personal knowledge of the events described. Appellant acknowledges that an objection based on foundation is distinct from a hearsay objection, but argues that the wording of his objection fairly advised the trial court of its substance. Respondent does not challenge appellant’s objection on technical grounds and we therefore reach the merits of the foundation contention.
Smith, then in police custody, spoke with Detective Abdul on July 7, 2005. He talked about the shooting. At the preliminary hearing, Smith denied ever having met Abdul and recanted his statements from the July 7 interview. Smith was unavailable at trial and the prosecution introduced his testimony from the preliminary hearing. The prosecution also introduced a recording and transcript of Smith’s police interview as a prior inconsistent statement. Appellant objected to the introduction of the recording on hearsay grounds, and because the statements were more prejudicial than probative so that their introduction into evidence would violate section 352.
Smith later became available and was called as a defense witness. The trial court allowed Smith’s prior testimony to remain in the record and permitted appellant’s counsel to cross-examine.
Smith’s challenged statements provided evidence of motive and identification. He said that appellant fronted Lewis a half ounce of narcotics for which Lewis owed appellant money. When Detective Abdul stated, “Well I know Devil [appellant] pulled the trigger” Smith responded, “Yes, brother ran up to that car... and try to open the door.” Smith asserted that appellant went to the crime scene in his white Tahoe, which was later moved to Atlanta, Georgia. He stated that appellant “ain’t in L.A.”
Respondent, the proponent of this evidence, had the burden of establishing the foundational requirements for its admission. (People v. Morrison (2004) 34 Cal.4th 698, 724.) Evidence Code section 702, subdivision (a) requires that “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.” The personal knowledge requirement of witnesses also applies to hearsay declarants. (People v. Valencia (2006) 146 Cal.App.4th 92, 103-104.) “In the absence of personal knowledge, a witness’s testimony or a declarant’s statement is no better than rank hearsay or, even worse, pure speculation.” (Ibid.)
The record does not establish that Smith was a percipient witness. When the interrogating officer Abdul asked how he knew about Lewis’s debt to appellant, Smith said, “I know this because we conversate, we communicate... me and... my friends, my homies.” Responding to a question about his knowledge of the appellant’s identity as the shooter, Smith said, “Look at me. Look at me. Now, look at me again. I know a lot.” Detective Abdul did not follow up on Smith’s answers, and his knowledge of appellant’s vehicle or location was not questioned. Smith’s assertions and equivocations did not establish a foundation for personal knowledge; respondent failed to meet its burden of showing their admissibility.
Appellant also claims the trial court erred by overruling his objections based on section 352. We will not overturn or disturb a trial court’s exercise of its discretion under section 352 unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. (People v. Robinson (2005) 37 Cal.4th 592, 625-626.) We infer the trial court understood and fulfilled its responsibilities under the statutory weighing process required by section 352. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) Because Smith’s statements were highly probative of motive and identification, we find the trial court did not abuse its discretion in denying appellant’s objection under section 352.
Although the trial court erred by failing to strike the challenged portions of the interview, this error was harmless. We analyze the trial court’s error under the test articulated in People v. Watson (1956) 46 Cal.2d 818, 836 to evaluate “whether it is reasonably probable that a result more favorable to [appellant] would have been reached in the absence of the error.” The challenged portions of Smith’s statement were a small portion of the overwhelming evidence showing appellant’s guilt. The unchallenged portions of Smith’s interview support the convictions, as do the statements of Sampson, identification and motive testimony from Clark, and the telephone conversations in which appellant asked for help establishing an alibi and dissuading witnesses. It is not reasonably probable that a result more favorable to appellant would have been reached if the challenged portions of Smith’s interview had been excluded.
Appellant urges reversal based on claimed violations of his 6th and 14th Amendment rights caused by the admission of Smith’s statements. If appellant’s claims were valid, we would analyze the trial court’s error under heightened review to determine if it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Regardless of the merits of appellant’s constitutional arguments, we find that the error was harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt.
B
Appellant argues the trial court erred by allowing Detective Abdul to explain Sampson’s motivation in recanting her identification of the appellant. Abdul qualified as an expert witness on gang culture and activities. After answering a question on gang culture in hypothetical terms over appellant’s objection, Abdul stated that Sampson “knows the ramifications if she testifies in trial” but acknowledged that he lacked personal knowledge for that statement.
Evidence Code section 801 provides that an expert witness’s opinion testimony is limited to subjects sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. An expert witness may opine on whether members of a street gang would intimidate witnesses so long as they do not express an opinion without personal knowledge about whether a particular witness in the case had been intimidated. (People v. Gonzalez (2006) 38 Cal.4th 932, 945-947; People v. Killebrew (2002) 103 Cal.App.4th 644, 658.) Since no objection was raised to Abdul’s brief statement, appellant’s argument on appeal was forfeited. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) In any event, any error was harmless. Given the strong evidence of appellant’s guilt, it is not reasonably probable that a different verdict would have occurred absent this testimony. (People v. Watson, supra, 46 Cal.2d at p. 836.)
C
Appellant contends that he was improperly impeached with prior arrests for firearm violations. During direct examination appellant’s counsel asked him, “Have you ever been involved with guns?” Appellant replied, “No, sir, that’s not my field... I never really dealt with guns as far as the gang go[es].” During cross-examination, the prosecutor followed up on that exchange:
“Q: So you never touched a gun before; is that correct?
“A: No, I am not going to say I never touched a gun, but I never been involved with a gun as far as gangs, as far as gang activities.
“Q: So you have never carried a gun for your own use? “A: No, ma’am.
“Q: Never, ever?
“A: Never.
“Q: You don’t like guns?
“A: I don’t say I don’t like them. I just know they can get me in trouble.
“Q: You have never been involved in guns. Can you tell me why you have a semiautomatic tattoo on you, as we see in Exhibit 45?
“A: It’s just art, ma’am.
“Q: Okay. Let me ask you, then, if you have never carried a gun for your own personal use, then can you explain to me how it is that, on February 9th, 1989, the sherriff’s department from Lennox arrested you for possession of a firearm in violation of Penal Code Section 12020, subsection (a)?
“A: 1989?
“Q: February 9, 1989.
“A: Ma’am, they found that weapon in the bushes and put it on me.
“Q: Okay. Would you tell me how it is that....”
At this point, appellant’s counsel objected and conferred with the prosecutor. Their conversation is not part of the record. The prosecutor proceeded to question appellant about the 1989 arrest and a February 1990 arrest for carrying a loaded firearm in a public place in violation of section 12031, subdivision (a). Appellant’s counsel objected again, arguing that arrests are not admissible to show involvement with guns. The court allowed the questions, finding that appellant’s broad statement that he was not involved with guns at all allowed the prosecutor to introduce evidence of the arrests to show involvement. Appellant’s motion for mistrial was denied. The prosecutor then questioned appellant about firearm related arrests in 1991, 1992, 1993 and 2004.
Evidence Code section 780, subdivision (i) allows a trier of fact to consider the existence or nonexistence of any fact testified to by a witness in determining the credibility of a witness. Evidence Code section 787 mandates that evidence of specific instances of a witness’s conduct relevant only as tending to prove a trait of the witness’s character are inadmissible to attack or support the credibility of a witness. Appellant argues that the prosecutor’s questions about his arrests violated Evidence Code section 787, and cites People v. Anderson (1978) 20 Cal.3d 647, 650-651 for the proposition that evidence of mere arrests should be precluded under section 352 as more prejudicial than probative.
Respondent argues, and we agree, that appellant’s specific testimony that he had no involvement with guns was properly impeached with questioning about his arrests on gun charges. “[A] witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony.” (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946.) This rule prevents witnesses from misleading the jury or misrepresenting facts. (People v. Robinson (1997) 53 Cal.App.4th 270, 282-283.)Because appellant denied that he had been involved with guns, the prosecutor was entitled to ask him about specific occasions involving firearms where his answer might impeach earlier testimony. (See People v. Cooks (1983) 141 Cal.App.3d 224, 324.) Appellant did not object at trial on the basis of section 352 and hence forfeited any appeal on those grounds. (People v. Doolin (2009)45 Cal.4th 390, 434.) In any event, any error was harmless as the matter was collateral, brief, and not mentioned in argument. (Cf. People v. Cummings (1993) 4 Cal.4th 1233, 1295, fn. 37; People v. Pride (1992) 3 Cal.4th 195, 245.) In light of the strong evidence of appellant’s guilt it is unlikely that he would have achieved a better result if these questions had not been asked. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Appellant argues that his improper impeachment impaired “his ability to present a defense by unfairly diminishing the credibility of his testimony... infringing his right to due process.” His constitutional claim is asserted “perfunctorily and without argument in support. Therefore we do not consider [it].” (People v. Mayfield (1993) 5 Cal.4th 142, 196; Cal. Rules of Court, rules 8.204(a)(1)(b), 8.360(a).)
D
Appellant argues the trial court erred when it misread two jury instructions. When the trial court read CALCRIM No. 318, it instructed the jury:
“You have heard evidence of statements that a witness made before the trial. You must decide it – strike that – if you decide that the witness made those statements, you must use those statements in two ways: 1. To evaluate whether the witness’s testimony in court is believable; and 2. As evidence that the information in the earlier statement is true.” (Italics added.)
The court should have stated, in the language of CALCRIM No. 318, that the jury “may” use prior statements in two ways. ~(2CT 466)~ When the trial court read CALCRIM No. 358 it instructed the jury:
“You have heard evidence that the defendant made oral or written statements during the trial. You must decide whether or not the defendant made any of those statements in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such statements. You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.” (Italics added.)
The correct instruction of CALCRIM No. 358 was that the jury must consider defendant’s statements “before” the trial.
Any error in the reading of the instructions was harmless. In both instances, the trial court’s written instructions correctly used the terms “may” and “before.” Because the jury received correct copies of the written instructions, we presume they were guided by them. (People v. Crittenden (1994) 9 Cal.4th 83, 138.) The importance of the written instructions was reinforced by the trial court’s direction, “You have been given a copy of these instructions personally. Each one of you will take them into the jury room.” (See People v. Osband (1996) 13 Cal.4th 622, 687.) It is not reasonably probable the appellant would have been acquitted absent these instructional errors and they are therefore harmless. (People v. Flood (1998) 18 Cal.4th 470, 490.) Indeed, it is difficult to posit how these errors could have been prejudicial. Appellant concedes these errors were harmless, but still contends their impact must be considered in combination with other errors. ~(AOB 23)~
Appellant claims the incorrectly read instructions violated his “rights to due process and to present a defense.” As he does not support this argument, we do not review it. (People v. Mayfield, supra, 5 Cal.4th at p. 196.)
E
Appellant argues that the four alleged errors cumulatively led to a fundamentally unfair trial, requiring reversal. The appellant alleges federal constitutional error as well as well as non-constitutional errors, and we review whether the claimed errors taken together were harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Morris (1991) 53 Cal.3d 152, 216, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) When an appellant invokes the doctrine of cumulative error, “the litmus test is whether defendant received due process and a fair trial.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349). We have found that there was harmless error in allowing the introduction of the challenged portions of Smith’s July 7, 2005 interview, the admission of Detective Abdul’s opinion on Sampson’s motivations for recanting her testimony, and the misreading of two jury instructions. Because these errors were not prejudicial, their significance to the actual fairness of appellant’s trial was minimal. (See People v. Montiel (1993) 5 Cal.4th 877, 944.) The admissible portions of Smith’s interview, Sampson’s identification of appellant as the shooter, Clark’s testimony, and appellant’s incriminating telephone conversations provide overwhelming evidence of appellant’s guilt. In light of this evidence, we find the cumulative error was harmless beyond a reasonable doubt and affirm the judgment.
II
The trial court imposed a sentence of 15 years to life for each count of second degree murder pursuant to section 190. Since the jury found the special firearm allegations to be true, the trial court sentenced appellant to an additional 25 years to life for each count pursuant to section 12022.53, subdivision (d). The trial court also sentenced appellant to additional consecutive 10-year-to-life sentence enhancements for special street gang allegations found true for each count. It stayed imposition of sentence for violation of section 12021, subdivision (a)(1) pursuant to section 654. Appellant’s total aggregate sentence was 100 years to life.
Both sides agree the trial court overlooked firearm sentence enhancements that should have been imposed and stayed under section 12022.53, subdivisions (b) and (c). Section 12022.53, subdivision (f) states, “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.” The jury found true firearm allegations within the meaning of section 12022.53 subdivisions (b), (c), and (d) for each count. Because appellant was sentenced to 25-year sentence enhancements pursuant to subdivision (d), subdivision (f) requires that 10-year enhancements under subdivision (b) and 20-year enhancements under subdivision (c) be imposed and stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126-1127.)
Appellant argues and we agree that it was error for the trial court to impose additional 10-year-to-life sentence enhancements for the special street gang allegations pursuant to section 186.22 subdivision (b)(1)(C). Because appellant was convicted of second degree murder, for which an indeterminate term of life in prison is prescribed, the trial court was required to impose a minimum parole eligibility of 15 years for the special street gang allegations rather than the 10-year sentence enhancements. (§ 186.22 subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1007; People v. Fiu (2008) 165 Cal.App.4th 360, 390.)
We note that the trial court cited section 12022.53, subdivision (e) at the sentencing hearing to account for the gang enhancements, and the abstract of judgment also cites that section. Because that subdivision limits the imposition of sentences pursuant to section 186.22 to situations where, as here, the defendant personally used a firearm, we assume the trial court imposed the sentences pursuant to section 186.22, subdivision (b)(1)(C). (See People v. Brookfield (2009) 47 Cal.4th 583, 590; People v. Jones (2009) 47 Cal.4th 566, 570-571 (conc. opn. of Werdegar, J.).)
DISPOSITION
The sentence is modified to impose and stay a 10-year sentence enhancement and a 20-year sentence enhancement pursuant to section 12022.53, subdivisions (b) and (c), respectfully, for each count of second degree murder. The 10-year sentence enhancements imposed for the special street gang allegations for each count are stricken, and a minimum parole eligibility of 15 years is imposed for each count of second degree murder pursuant to section 186.22 subdivision (b)(5). The abstract of judgment shall be amended to reflect these modifications.
In all other respects, the judgment is affirmed.
We concur: WILLHITE, J. MANELLA, J.