Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Super. Ct. No. 00NF1347.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Minh Nghia Lee appeals from a judgment after a jury convicted him of first degree murder, conspiracy to commit murder, and attempted premeditated murder, and found true the special circumstances allegation of lying in wait and the allegation he was armed with a firearm. Lee argues: (1) the trial court erroneously denied his motion to dismiss because the prosecution of his case was unreasonably delayed; (2) the court erroneously granted the prosecution’s cause challenges thereby denying him a fair and impartial jury; (3) the court erroneously allowed the prosecution to call a witness to testify knowing the witness would refuse to testify; (4) the court erroneously admitted a redacted version of his statement to the police; (5) the court erroneously admitted the gang expert’s testimony; and (6) the lying-in-wait allegation was inapplicable to him because he was not the actual killer. None of his contentions have merit, and we affirm the judgment.
FACTS
Lee was involved in a criminal enterprise with numerous individuals. The initial venture was an on-going identity theft and bank fraud scheme. Later, the group added methamphetamine sales to their criminal repertoire.
The prime movers in the criminal enterprise were Peter Song (Peter) and John Masubayashi. Tupoutoe Mataele (T-Strong), James Chung, Ryan Carrillo, Tweeney Mataele (Baby), Danell Johnson, David Song, and Lee assisted Peter and Masubayashi in their fraudulent operation. At one point, the entire group, except for Lee, lived together in a Los Angeles residence they called the “Penthouse.” Lee, a good friend of Chung’s, spent time at the Penthouse, but lived a few blocks away. Despite the commonality of their criminal activity, the group’s members belonged to different gangs.
Chung, Carrillo, and Baby were members of the “Pinoy Real” criminal street gang. Lee was a member of the “Asian Mob Assassins” (the AMA) criminal street gang. Masubayashi and Johnson were members of the “Tiny Rascals” (the TR) criminal street gang. T-Strong was not a gang member, but was a trusted associate of Pinoy Real.
After a period of time, various disputes arose among the crime partners. Masubayashi said the atmosphere at the Penthouse was getting out of control because of the methamphetamine use. He believed Chung was taking too many unnecessary risks, and he was unhappy Chung would pick up girls at clubs and bring them back to the Penthouse. Chung likewise became disenchanted with Masubayashi. Chung wanted Masubayashi out of the Penthouse so he could move up in the operation and become second in command to Peter. Johnson also irritated Chung. While driving Chung’s white Jeep Cherokee, Johnson had received a citation under a fraudulent name. Chung was concerned because he was on parole and did not want Johnson’s misdeed to end up getting him violated on his parole. Chung was angry with both Masubayashi and Johnson, and they eventually moved out of the Penthouse and ended up living in an Anaheim apartment formerly used by the group. The apartment belonged to Takahisa Suzuki.
On November 11, 1997, about one month after Masubayashi and Johnson began residing at Suzuki’s apartment, T-Strong and Carrillo made an unannounced visit to Masubayashi and Johnson. As Johnson and his girlfriend returned to the apartment with groceries, they encountered T-Strong and Carrillo waiting outside the apartment complex. The four brought the groceries into the apartment where Masubayashi and his girlfriends were sleeping. Masubayashi awakened and the four men talked about going to a strip club. Masubayashi, Johnson, T-Strong, and Carrillo then left the apartment together in Masubayashi’s vehicle.
Masubayashi was driving, Johnson was in the front passenger seat, and the two others were in the back seat. T-Strong and Carrillo told Masubayashi to drive to a nearby restaurant parking lot so they could pick up their car and drive separately. As they entered the parking lot, Masubayashi saw Chung’s Jeep, but he did not see anyone inside. He pulled up next to the Jeep, parked his car, and got out of the driver’s side. Johnson got out of the passenger seat to allow T-Strong and Carrillo to get out of the car. As Johnson was getting back into car, Masubayashi heard a gunshot. He turned and saw Johnson’s head bobbing and saw a person he believed to be T-Strong pointing a gun at him. He then began running away. As he was running, he heard several gunshots. One shot entered his right chest. Johnson died.
Masubayashi first ran toward a fast-food restaurant, but then ran across the street. As he ran across the street, he looked back and saw Chung’s Jeep coming towards him. He stood behind a telephone pole to protect himself. The Jeep sped towards him, but stopped just short of hitting the pole. As the Jeep backed up, Masubayashi ran around the driver’s side of the Jeep and ran towards a restaurant. As he ran, Masubayashi collapsed in the middle of the street and saw the Jeep drive towards the freeway.
An information charged Lee with murder by means of lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15)) (count 1), conspiracy to commit murder (§ 182, subd. (a)(1)) (count 2), and willful, deliberate, and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a)) (count 3). The information alleged Lee was armed with a firearm as to all the counts (§ 12022, subd. (a)(1)).
The information also charged T-Strong, and they were tried together.
All further statutory references are to the Penal Code, unless otherwise indicated.
Before trial, Lee filed a motion to dismiss the charges alleging his due process rights were violated by the unreasonable delay of the prosecution. Although the events took place in 1997, the prosecutor did not file charges until 2001. The trial court reserved ruling on the motion until the conclusion of the jury trial.
During jury selection, and over defense counsel’s objection, the prosecutor successfully challenged three jurors for cause. The first challenged juror was prospective juror No. 259. When this juror was asked about her ability to sit in judgment on this case during a penalty phase, she expressed concern about the defendants’ young age, and stated she hoped the prosecution would not have sufficient evidence to warrant a penalty phase. When pressed, she said she could do it if she had to, but it would be very difficult. The juror indicated she was not opposed to the death penalty, and if there was enough evidence to convince her, she did not mind getting to the penalty phase. She again reiterated that although she could do it, she did not want to get to a penalty if at all possible.
The prosecutor requested prospective juror No. 259 be excused for cause because she admitted she could not be fair, hoped to not get to the penalty phase, and was sympathetic to the defendants’ age. The trial court acknowledged prospective juror No. 259 was equivocal in her answers, but concluded it inferred from her answers she would be “pulling for the defense.” The court found prospective juror No. 259’s ability to return a death verdict to be substantially impaired and granted the challenge for cause.
The next juror the prosecutor challenged was prospective juror No. 190. In her questionnaire, this juror wrote, “Hate the death penalty.” She also indicated she had initially been morally opposed to the death penalty, but was presently just “concerned because human error might cause a wrong decision.” When questioned in court, this juror stated that since completing her questionnaire, she had reflected and now believed she could return a verdict of death. Although she indicated she had concerns maybe she “wouldn’t be fair to [the prosecution]” if the case went to a penalty phase, she did not believe her beliefs would substantially impair her ability to be a fair juror. In ruling on the prosecution’s challenge for cause on this juror, the trial court stated the juror had been equivocal and “hugely inconsistent.” The court indicated it did not believe the juror could be fair, explaining, “She’s all over the map. Her statements and her client questionnaire are straightforward and dramatic in terms of her opposition to the death penalty and when she said she would not vote for the death penalty.” For all these reasons, the court granted the prosecutor’s challenge for cause.
The last prospective juror the prosecutor challenged for cause was prospective juror No. 284. In her questionnaire, this juror wrote she had some “reservations” about the death penalty, but she would impose the death penalty if appropriate under the circumstances. She later sent a note to the clerk indicating she had attended a barbeque over the weekend and heard people discussing the case. Some of the party attendees were her longtime friends, and were T-Strong’s distant relatives. One party attendee was a potential witness at the trial and other family members indicated they would be attending the trial. Based on this information, this juror said she would no longer be able to sign a death verdict because of her ties to the defendant’s family. She further stated she would not vote for the death penalty, especially if T-Strong’s mother was in the courtroom. The court granted the prosecution’s challenge for cause on prospective juror No. 284, finding she was credible and believable when she stated she “would automatically vote against the death penalty[.]”
Prior to trial, Lee filed a motion to exclude statements Chung made to the police. In a separate trial, Chung was convicted of charges arising out of the November 11, 1997, incident, and he was sentenced. His convictions were affirmed on appeal. Lee successfully moved to exclude Chung’s statements to law enforcement. The trial court ruled the statements would only be admitted if Chung testified and was available for cross-examination. On the day Chung was scheduled to be called as a witness, the prosecution requested Chung be questioned outside the presence of the jury to determine whether he would attempt to invoke his Fifth Amendment rights. After lengthy argument as to whether Chung had a post-appeal Fifth Amendment right, the prosecution granted Chung use immunity. The prosecution did not concede Chung had any right to assert any Fifth Amendment privilege, but “out of an abundance of caution” gave Chung use immunity to not impede his truthful testimony.
At trial, Masubayashi identified Lee as the Jeep’s driver. He observed Lee driving the Jeep as it proceeded out of the parking lot near the fast-food restaurant and when the car was heading towards the telephone pole. On cross-examination, Masubayashi admitted he initially told an Anaheim detective that he did not know who was driving, and had also identified an individual by the name of Clarito Mina, who looks similar to Lee, as a possible driver.
Chung was called as a prosecution witness at Lee’s trial. Chung testified he had been granted immunity. When the prosecutor questioned him as to whether he was with Lee in Los Angeles on the evening of November 11, 1997, and the early morning hours of November 12, 1997, Chung refused to answer. Chung then responded to a few of the prosecutor’s general questions, but when asked again whether he was with Lee on the dates in question, he again refused to answer. Subsequent attempts by the prosecutor to secure testimony from Chung as to his whereabouts on the dates in question were equally unsuccessful. When the prosecutor completed direct examination, Lee moved for a mistrial on Fifth Amendment grounds. Lee contended the prosecutor’s repeated questions as to whether Chung was with Lee at the time the crime occurred prejudiced Lee. The trial court found there was no prejudice and denied the mistrial motion.
The prosecutor sought to introduce Lee’s statements to police the day after the incident. Pursuant to objections by the codefendant, the prosecutor redacted portions of Lee’s statement. Lee objected to the redacted statement claiming the gap in the statement created by the redactions made it look as if Lee was not forthcoming with the police. He argued the redacted statement “paint[ed] an incorrect picture of what [Lee] told the police.” The court concluded the redactions did not prejudice Lee and allowed the prosecutor to admit the redacted version of his statement to the police.
Over defense counsel objection, the prosecutor called Alfonso Valdez, a gang expert. After detailing his background, training, and experience, Valdez testified generally concerning the culture and habits of Asian criminal street gangs; he was not involved in or familiar with the facts of this case. He explained Asian gangs are motivated primarily by economic gain, the importance of respect in gangs, and the methods of joining a gang, including committing a crime.
The prosecutor presented Valdez with a detailed hypothetical question mirroring the facts of the case, but used identification letters to represent the gangs and actors rather than names. As part of the hypothetical, Valdez was to assume a gang member from gang “B” drives gang member “A” to a location where gang member “A” executes one victim and wounds a second victim. When the wounded victim attempts to flee, he is pursued and there is an attempt to run the car over him. The prosecutor asked Valdez to render various opinions. The prosecutor asked Valdez whether the crime was consistent with someone committing a crime to join a gang. The trial court overruled defense counsels’ objection, and Valdez responded it was consistent. The prosecutor asked whether gang members “A’s” conduct was done for the benefit of gang “X.” After the trial court overruled counsels’ objections, Valdez explained the shooting benefitted the gang by increasing both the gang’s and “A’s” respect.
The prosecutor then asked, “Do you have an opinion as to whether or not the activities and conduct of gang B or gang member B would benefit gang X?” Valdez replied, “Yes. [¶] . . . [¶] Gang member B’s activity being the driver of the car facilitates the crime and he’s facilitating the overall activity, so he also benefits from the conduct.” Defense counsel objected and during a lengthy in-chambers discussion, he moved for a mistrial on the grounds Valdez had rendered a legal conclusion when he stated the driver facilitated the crime by driving in the manner described. The trial court denied the mistrial motion, but when back in the jury presence, the court struck the answer and admonished the jury not to consider it.
When asked, without getting into any legal conclusions, to describe the conduct he believed benefited gang “X,” Valdez replied, “He also attempted to kill one of the two victims. He assisted in driving . . . .” The answer was cutoff by another defense objection and another in-chambers conference was held. Defense counsel again contended Valdez was stating a legal conclusion and counsel renewed his motion for mistrial. The prosecutor argued Valdez had not been allowed to finish his answer, and he was merely reciting back the facts of the hypothetical. The court overruled the objection and denied the mistrial motion. When back in the jury’s presence, the court admonished the jury the witness had been given a hypothetical example and to give it “the weight to which you find it entitled.”
Glenda Bloemhof testified for the defense. She testified that in 1996 when she was 16 years old, she had spent time with Mina. Bloemhof stated she met Masubayashi in 1998 or 1999, and she dated him for about one and one-half years. Sometime after 1997, she went to a hotel in Los Angeles county and both Mina and Masubayashi were there. When she entered the room with Mina, he was nervous, but she did not remember him running out of the room. Bloemhof repeatedly stated she did not remember details of what occurred in the hotel room. To refresh her recollection, she was given a transcript of a statement she made to the police in 2000. Bloemhof maintained she still had no independent memory of the events.
Later, the tape of Bloemhof’s statement to the police was played to the jury. In the taped interview Bloemhof was heard to say she was currently dating Masubayashi, but she had dated Mina for a period of time before and had lived with him for three years. She did not know Masubayashi in 1997 when the shooting occurred, but met him later. She told of being at a Los Angeles hotel with Masubayashi and Mina showing up. Mina had confronted Bloemhof and asked, “[W]ho the hell is that laying on the bed?” Masubayashi was the person lying on the bed. Bloemhof related Mina “got all scared and paranoid and then like he just ran out of the room[]” at the sight of Masubayashi. The next day, Mina repeatedly paged Bloemhof and the following day left a message on her answering machine. Later, Mina told Bloemhof he was there when Masubayashi was shot. Mina did not tell her who else was there or any of the details as to how Masubayashi was shot.
The jury convicted Lee on all counts and found true all the allegations. Lee renewed his motion to dismiss under the due process clauses of both the federal and state constitutions.
With respect to prejudice, Lee informed the court three alibi witnesses, Peter, Suzuki, and Suzuki’s girlfriend, were unavailable due to the delay in the Lee’s prosecution. Lee asserted Peter had been deported and was unavailable to be called as a witness at Lee’s trial. He also argued Suzuki was unavailable because “nobody had seen . . . Suzuki for a long period of time[,]” and Suzuki’s girlfriend was unavailable because Masubayashi testified he had seen the woman’s picture “in some sort of fashion magazine in Japan.” This appears to be the only information Lee could offer as to the girlfriend’s whereabouts. Defense counsel also asserted Mina was unavailable because he had been deported to the Philippines. Lee argued Mina’s unavailability prevented him from effectively presenting his third party culpability defense—that Mina, not Lee, was the driver. Lee did not indicate what specific testimony Peter, Suzuki, and Suzuki’s girlfriend would give if they were available. Lee also argued the effectiveness of Bloemhof’s testimony as to Mina’s statements was diminished by the passage of time.
The prosecutor did not dispute the unavailability of the purported alibi witnesses, but questioned what prejudice, if any, their unavailability established. But if prejudice had been established, the prosecutor contended there was justification for the delay that outweighed any prejudice suffered by Lee. The prosecutor advised the trial court it did not have a “provable case” against Lee until May 2000, when Chung admitted he and Lee were together in the Jeep. Up until Chung changed his story, the prosecutor argued it only had a tentative identification from Masubayashi and this was contradicted by Chung’s and Lee’s statements in which each provided an alibi for the other. Once Chung changed his story, the prosecution made efforts to locate witnesses and otherwise prepare the case for filing.
After a review of the pleadings and points and authorities, and after hearing counsels’ argument, the trial court denied the motion. In denying the motion to dismiss, the trial court found there was “no federal due process violation . . . because there’s no delay in the case to gain a tactical advantage.” The trial court indicated that under the California Constitution when there has been prefiling delay, prejudice is not presumed. The court explained that to prevail, a defendant bears the burden of demonstrating prejudice from the delay, and when a defendant fails to meet this burden, the court need not inquire into the justification for the delay in prosecution. The court found Lee had failed to establish prejudice and denied the motion to dismiss. The court sentenced Lee to life in state prison without the possibility of parole.
DISCUSSION
Lee makes numerous claims of error. We will discuss each individually.
I. Unreasonable delay in charging
The parties agree that under both the federal and California Constitutions the accused must prove actual prejudice. (People v. Catlin (2001) 26 Cal.4th 81, 107.) Whether a defendant has met the initial burden to show prejudice is a factual question for the trial court, whose finding we review for substantial evidence. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 912.) We review the trial court’s denial of a motion to dismiss on the ground of prefiling delay for an abuse of discretion. (People v. Morris (1988) 46 Cal.3d 1, 38, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-545 & fns. 5 & 6.)
Although Lee established the three potential alibi witnesses were unavailable, the trial court found he failed to demonstrate what material testimony these witness would give had they been available. In concluding Lee failed to establish prejudice, the trial court indicated the defense was merely speculating as to what testimony Peter, Suzuki, and Suzuki’s girlfriend would give. We agree.
We are not persuaded by Lee’s argument Bloemhof’s testimony was somehow diminished by the passage of time. Mina’s incriminating statements were presented to the jury when Bloemhof’s 2000 taped statement to the police was played for the jury. In asserting a claim of prefiling delay, a defendant has the initial burden of showing evidence of actual prejudice, which cannot be presumed. (People v. Archerd (1970) 3 Cal.3d 615, 639-640, abrogated on another ground by People v. Nelson (2008) 43 Cal.4th 1242.) We discern no prejudice.
Lee argues the trial court erroneously required the defense to establish the prosecution’s motivation for delay was to gain a tactical advantage. Lee cites a split of authority among the federal circuit courts and notes the Supreme Court of the United States has not ruled on this issue. We agree there is a split of authority in the federal circuit courts as to whether the tactical advantage prong must be applied, with the Ninth, Seventh, and Fourth Circuits requiring that no such burden be placed upon the defendant. (United States v. Barken (9th Cir. 2005) 412 F.3d 1131, 1134; United States v. Ross (9th Cir. 1997) 123 F.3d 1181, 1185; United States v. Moran (9th Cir. 1985) 759 F.2d 777, 782; United States v. Henderson (7th. Cir. 2003) 337 F.3d 914, 920; Aleman v. Judges of the Circuit Court, Cook County (7th. Cir. 1998) 138 F.3d 302, 309; Jones v. Angelone (4th Cir. 1996) 94 F.3d 900, 905.) But because we determine Lee failed to establish the requisite prejudice under either constitutional standard, we need not decide whether the United States Constitution places an additional burden on Lee.
II. Challenges for cause
Lee contends the trial court erroneously granted the prosecutor’s cause challenges to three jurors and the error violated his right to select a fair and impartial jury under the Sixth and Fourteenth Amendments to the United States and California Constitutions. Citing Wainwright v. Witt (1985) 469 U.S. 412, Lee asserts a trial court may excuse a prospective juror based on the juror’s views on the death penalty when the prospective juror’s views would “‘prevent or substantially impair the performances of [the juror’s] duties as a juror in accordance with [the] instructions and [the] oath.’” Our Supreme Court has reiterated this standard in People v. Haley (2004) 34 Cal.4th 283. We review the rulings of the trial court accordingly.
“‘“A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror’s responses in deciding whether to remove the juror for cause. The trial court’s resolution of these factual matters is binding on the appellate court if supported by substantial evidence. [Citation.] ‘[W]here equivocal or conflicting responses are elicited regarding a prospective juror’s ability to impose the death penalty, the trial court’s determination as to his true state of mind is binding on an appellate court. [Citations.]’ [Citation.]”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 14.)
The first juror the trial court excused for cause was prospective juror No. 259. This juror initially expressed sympathy based on the defendants’ age. Later, she indicated that if she had to she could return a death verdict, but it would be very difficult. This juror also stated she hoped she would never be faced with a penalty phase decision. The trial court found prospective juror No. 259’s answers to be equivocal, and ultimately decided this juror was substantially impaired in her ability to abide by the court’s instructions and her oath because she would be biased in favor of the defense. Substantial evidence supports the trial court’s excusal for cause of prospective juror No. 259 and, therefore, we find no error.
The next juror the trial court excused for cause was prospective juror No. 190. Again, this juror began by expressing a serious concern about the death penalty, but later after reflection said she had concluded she could impose the death penalty. This juror indicated she had been morally opposed to the death penalty, but her current concern was only as to reaching the wrong decision based on human error. While stating she did not believe her ability to be a fair juror was impaired by her personal beliefs, she did indicate some question as to whether she could be fair to the prosecution. The trial court concluded this juror had been “hugely inconsistent.” Concluding this juror could not be fair to all parties, the court excused this juror for cause. We agree with the trial court’s assessment this juror was “all over the map” when it came to her beliefs on whether she could return a death verdict. This juror actually expressed her own doubt as to whether she could be fair to the prosecution. Substantial evidence supports the trial court’s excusal of prospective juror No. 190. We find no error.
The last juror the trial court excused for cause was prospective juror No. 284. This juror began by saying she could impose the death penalty if appropriate under the circumstances, but in the end stated she could not return a verdict of death for the codefendant because of her relationship with his family and extended family. The trial court took this juror at her word and excused her. We agree with the trial court’s conclusion this juror would automatically vote against the death penalty as to one of the defendants. We conclude substantial evidence supports the trial court’s excusal of prospective juror No. 284, and we find no error. The trial court properly excused for cause all three jurors. Lee was not denied his right to a fair and impartial jury.
Lee also complains that because of his codefendant, he was tried by a death qualified jury when he was not subject to the death penalty and, therefore, he was denied a fair trial. The Attorney General asserts Lee failed to preserve this issue for appeal because he did not move to sever his trial from his codefendant on this ground. We agree with the Attorney General that to preserve the issue Lee should have moved to sever. However, we will address the merits of his contention. Our Supreme Court has clearly stated severance is not compelled where the prosecution is seeking the death penalty against only one of the two codefendants. (People v. Tafoya (2007) 42 Cal.4th 147, 163-164; see Buchanan v. Kentucky (1987) 483 U.S. 402, 419-420.) Even if Lee had moved to sever his trial, the trial court likely would have properly denied the severance motion. We find no basis for reversal.
III. Witness called to stand
Lee asserts the trial court committed prejudicial error in allowing the prosecutor to call Chung to the witness stand knowing he would refuse to answer questions. Lee claims it was error for the court to require “Chung to claim his privilege against self-incrimination on the witness stand despite a pretestimonial hearing in which it became known that he would do so.” We disagree.
Outside the presence of the jury, Chung was advised by the court that it had found he had no right against self-incrimination. The court explained, “You have no Fifth Amendment right. I know [you are] concerned about that. In light of your concerns, I’m going to grant you use [of] immunity.” The court explained to Chung the concept of use immunity and read him the immunity agreement. The court also explained to him that he would be called to the witness stand before the jury, asked questions by the prosecutor, and directed to answer those questions. Chung asked the court what consequences there could be if he refused to answer the prosecutor’s questions. The court advised him that he could be held in contempt of court for failing to comply with the court’s order to answer. But the court then candidly indicated because Chung was currently serving a sentence of life without the possibility of parole, it was unlikely the court would hold Chung in contempt. The prosecutor requested the court advise Chung that he could face a new felony charge of accessory after the fact. After the court advised Chung of that possibility, Chung indicated he understood the possibility of a new charge and had “no problem with that.”
In the presence of the jury, Chung expressed concerns the prosecutor would twist his words. When asked whether on the evening of November 11, 1997, and into the early morning hours of November 12, 1997, he was with Lee in Los Angeles, Chung said, “I won’t answer that question.” When asked the same question a second time, Chung responded, “I don’t even remember that day.” Chung repeatedly refused to answer the prosecutor’s questions, quibbled with the prosecutor over the questions, or gave partial or nonresponsive answers. Finally, after Chung began to more consistently refuse to answer the prosecutor’s questions, the prosecutor ended his direct examination.
Lee cites numerous cases for the proposition it was error for the trial court to require a witness to take the stand and exercise the right against self-incrimination before the jury. We acknowledge those cases, but find them inapt. Nowhere in his testimony before the jury do we find evidence of Chung claiming a privilege against self-incrimination. Chung said he would not answer the prosecutor’s questions and offered a variety of reasons why he would not answer—none being a concern he would incriminate himself.
Lee also claims once Chung refused to answer questions, the prosecutor should not have been allowed to repeatedly pose leading questions. Lee cites numerous cases to support his claim of error. In People v. Keller (1963) 212 Cal.App.2d 210, 218-219 (Keller), the court held reading 94 leading questions to a witness who formally refused to answer and then repeating those questions with answers after the witness was immunized was error. “‘[]The refusal to answer on the first reading may well have convey to some jurors the impression that the facts are as assumed in the question regardless of the answer given[,]’” and on the second reading, that potential was significantly increased. We do not find Keller instructive because those facts bear little resemblance to the facts here.
Next, Lee cites People v. Lopez (1999) 71 Cal.App.4th 1550 (Lopez). In Lopez, the prosecutor called a fellow gang member to testify against defendant. (Id. at p. 1553.) Before he was called to the witness stand, the witness made it very clear he would not testify against defendant. (Ibid.) The court advised the witness he had no Fifth Amendment privilege, and allowed the prosecutor to call the witness before the jury. (Ibid.) When he refused to testify, he was held in contempt. (Ibid.) The Lopez court found no error. The court opined the witness had no valid Fifth Amendment privilege, and under the circumstances, “the jury was entitled to consider [the witness’s] improper claim of privilege against him as evidence relevant to demonstrate exactly what the gang expert had opined; that gang members act as a unit to advance the cause of the gang and to protect their members.” (Id. at pp. 1555-1556.) We find Lopez to be on point. Chung had no valid privilege that would permit him to legitimately refuse to testify. The court properly allowed the prosecutor to call Chung before the jury to draw reasonable inferences from Chung’s refusal to answer questions. We discern no error.
Lee contends this court should not follow Lopez because the case was decided before Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We disagree. Lee correctly asserts Crawford prohibits the prosecution from admitting testimonial statements of witnesses absent from trial unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. (Id. at pp. 51-52.) We fail to see the relevance of Crawford to our facts. The prosecutor did not offer testimonial statements from Chung. The prosecutor simply asked Chung questions regarding his whereabouts and Lee’s whereabouts at the time the crimes were committed.
Finally, Lee asserts it was improper to repeatedly question a witness who had unequivocally refused to answer questions. On these facts though it cannot be said Chung unequivocally refused to answer any questions. Chung was selective in the questions he answered. Chung admitted he had stated he would answer questions posed by the defense, but not by the prosecution. He testified the murder victim and Masubayashi were guys who he used to live with in Koreatown. He confirmed Lee had a new puppy on the night of November 12 and he knew T-Strong in November 1997. Although Chung would not answer when asked if he was a Pinoy Real gang member in 1997, he agreed his nickname was “Temper[.]” On this record, it cannot be said Chung was a totally recalcitrant witness as Lee alleges. This witness engaged in verbal jousting with the prosecutor answering questions as he saw fit, but refusing to answer questions as to Lee’s whereabouts on the night in question. We see nothing improper in the prosecutor’s questioning.
It is also important to note the jury was twice instructed the prosecutor’s questions were not evidence and the questions have no evidentiary value. “‘We presume that jurors understand and follow the court’s instructions’ [citation].” (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
IV. Admission of redacted statement
Lee claims he was prejudiced by the trial court’s erroneous admission of a redacted version of the statement he made to the police on November 12, 1997, regarding the events of the previous night. The court ordered the redactions in response to objections made by Lee’s codefendant. Lee agreed generally to the redactions, but voiced objections to specific sections being deleted. In his statement, Lee admitted driving the Jeep the night of the incident, but claimed he was in Los Angeles at the time of the shooting. He argued that if specific portions of his statements were redacted, the tape would create an unclear and misleading picture of his use of the Jeep on the night of the shooting. The court concluded the redactions were proper under Bruton v. United States (1968)391 U.S. 123 (Bruton), and People v. Aranda (1965) 63 Cal.2d 518 (Aranda).
Under Aranda, a joint trial may properly be held if statements implicating the codefendant can be redacted without prejudice to the declarant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1045.) A codefendant is prejudiced when the redacted statement distorts his role. (People v. Lewis (2008) 43 Cal.4th 415, 457 (Lewis).) This is essentially the argument Lee makes. We are not persuaded.
Lee’s defense was that he was not the driver of the Jeep when the shooting occurred. The redacted statement presented to the jury contained numerous comments by Lee consistent with his defense. The relevant time frame was from late in the evening of November 11 until early in the morning of November 12. When asked of his whereabouts during this time, Lee indicated he “could’ve been at [Chung’s], [Chung’s] house at 9 o’clock[.]” He went on to say he was either at his house or at Chung’s house because the two visit together at both houses and travel frequently between the houses. The houses are within two blocks of each other in Los Angeles. When asked specifically where he was between the hours of 10:00 p.m. and 3:00 a.m., Lee indicated he was in Los Angeles the entire time. Lee denied being anywhere in Anaheim the previous night and claimed all the other people questioned by the police would confirm he was in Los Angeles. In the tape, Lee was heard to say, “you have to understand a lot of people drive [Chung’s] car,” and there were spare keys available to various people. Lee admitted he had driven the Jeep the day before, but insisted the last time he was in the vehicle was late in the day, but not at the time of the shooting.
Following the codefendant’s testimony, Lee was permitted to present to the jury an additional portion of his statement. Lee’s defense counsel read a stipulation to the jury explaining that a portion of Lee’s previously redacted statement was now being admitted. Counsel then read a portion of Lee’s statement in which he said he had been in the Jeep the previous evening about 8:00 p.m. when he drove to the 7-Eleven to get cigarettes.
The vast majority of Lee’s statement was presented to the jury. In the statement before the jury, Lee was heard to repeatedly deny driving the Jeep in Anaheim and to explain how a person other than himself could have been driving the Jeep without Chung’s knowledge. It cannot be said that the minimal amount of redaction deprived Lee of his constitutional right to present a defense. (People v. Maury (2003) 30 Cal.4th 342, 413.) Nor do we conclude the redactions prejudiced Lee in any other respect.
Lee also cites Evidence Code section 356 and argues the trial court erred in not admitting his entire statement. Again, we disagree. In relevant part, Evidence Code section 356 provides, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party[.]” Our Supreme Court has addressed the possible conflict between Aranda-Bruton and Evidence Code section 356. (Lewis, supra, 43 Cal.4th at p. 458.) The Lewis court explained the “limits on the scope of evidence permitted under Evidence Code section 356 may be proper when, as here, inquiring into the ‘whole on the same subject’ would violate a codefendant’s rights under Aranda or Bruton.” The trial court in Lewis “precluded defendant only from bringing out his own hearsay statements that expressly inculpated his codefendants. These limits were permissible notwithstanding Evidence Code section 356.” (Ibid.) This is precisely what the trial court did here. We find no error.
V. Gang expert allowed
Lee claims the trial court erroneously admitted the gang expert’s testimony because the expert testified to the ultimate facts in the case and offered an inappropriate legal conclusion. As we explain below, Lee’s claims are meritless.
It is well established, “[t]he subject matter of the culture and habits of criminal street gangs[]” is the proper subject of expert testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Expert testimony is admissible even though it encompasses the ultimate issue in the case. (Evid. Code, § 805; People v. Killebrew(2002) 103 Cal.App.4th 644, 651.) However, “A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.] . . . [O]pinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) “‘[A] trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]’” (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
Here, with regard to Valdez’s testimony concerning gang member “B” facilitating the crime, the trial court struck the testimony and admonished the jury to not consider it. “‘A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that “the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.” [Citation.]’ [Citation.]” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) We conclude this is not an exceptional case.
As to Valdez’s testimony gang member “B” drove the car and attempted to kill one of the victims, the trial court immediately instructed the jury Valdez answered in response to a hypothetical question and the jury could give his response the weight to which the jury believed it was entitled. At the close of trial, the court instructed the jury it was not bound by the expert’s opinion, they could disregard it, and the opinion was only as good as the facts and reasons on which it was based. The court also instructed the jury that it must decide whether the hypothetical question’s assumed facts were true. Again, we presume the jury followed the court’s instructions.
In any event, it is not reasonably probable that had the trial court excluded Valdez’s testimony, Lee would have received a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836.) Lee’s defense was mistaken identity. Lee did not argue the conduct did not amount to criminal offenses and, therefore, Valdez’s testimony gang member “B” facilitated the crimes or attempted to kill one of the victims was not germane to his defense. Additionally, there was sufficient evidence Lee was guilty of the offenses as three witnesses identified him as the Jeep’s driver.
Finally, admission of Valdez’s testimony did not deny Lee his federal constitutional rights to due process and a fair trial. As we explain above, the trial court excluded some of the evidence, and that evidence which was admitted was not prejudicial. (People v. Hall (1986) 41 Cal.3d 826, 834 [“ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense”].)
VI. Section 190.2, subdivision (a)(15)-Aider and Abettor
Lee claims the jury’s true finding on the section 190.2, subdivision (a)(15), special circumstance must be reversed because it only applies to the “actual killer” and not an aider and abettor, and there was no evidence he was the actual killer. As we explain below, section 190.2, subdivision (a)(15), applies to aider and abettors.
Section 190.2 states: “(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under [s]ection 190.4 to be true: [¶] . . . [¶] (15) The defendant intentionally killed the victim by means of lying in wait.” (Italics added.)
Based on the above italicized language, Lee claims section 190.2, subdivision (a)(15), only applies to an “actual killer.” Although Lee acknowledges the plain language of section 190.2, subdivision (c), which we discuss anon, he claims reliance on that section to conclude section 190.2, subdivision (a)(15), applies to aiders and abettors is meritless.
Section 190.2, subdivision (c), provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under [s]ection 190.4.” (Italics added.) Needless to say, one of the special circumstances enumerated in subdivision (a), is lying in wait.
The plain language of section 190.2, subdivision (c), authorizes death or life in prison without the possibility of parole for a person who is not the actual killer (Lee) who aided and abetted the actor (T-Strong) in the commission of a first degree murder if the defendant lied in wait. We reject Lee’s invitation to read an exception into the statute where the Legislature has not included one.
Our conclusion is buttressed by People v. Bonilla (2007) 41 Cal.4th 313 (Bonilla). In Bonilla, the California Supreme Court considered the lying-in-wait special circumstance of former section 190.2, subdivision (a)(15). (§ 190.2, former subd. (a)(15), added by Prop. 7, § 6, as approved by voters, Gen. Elec. (Nov. 7, 1978).) The lying-in-wait special circumstance applied, and still does, when “[t]he defendant intentionally killed the victim[.]” (§ 190.2, subd. (a)(15).) The Supreme Court rejected the argument that such language limited the application of the lying-in-wait special circumstance to actual killers and not aiders and abettors. (Bonilla, supra, 41 Cal.4th at pp. 330-331.) According to the court, such a narrow construction of the special circumstance would have impermissibly negated former subdivision (b) of section 190.2 (which subdivision the court expressly noted has been continued now as subdivision (c) of section 190.2). (Bonilla, supra, 41 Cal.4th at p. 331.)
Lee contends “unlike former [section 190.2,] subdivision (b), the applicable statute does not expressly include lying in wait, and the California Supreme Court’s reliance on the inclusion of subdivision (a)(15) in the former statute’s list makes Bonilla binding only as to murders committed before the 1990 amendment.” Although former subdivision (b), did expressly mention the lying-in-wait special circumstance, current subdivision (c), its replacement, expressly includes lying in wait when it states “one or more of the special circumstances enumerated in subdivision (a)[.]” Bonilla’s reasoning is equally applicable to section 190.2, subdivision (c). Therefore, we conclude the lying-in-wait special circumstance applies to Lee pursuant to section 190.2, subdivision (c), as an aider and abettor with the intent to kill.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., MOORE, J.