Opinion
B225257
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. JASON MARTIN, Defendant and Appellant.
Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm , Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA324894)
APPEAL from a judgment of the Superior Court of Los Angeles County, Beverly Reid O'Connell, Judge. Modified and, as so modified, affirmed; remanded with directions.
Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm , Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jason Martin appeals from the judgment entered following a jury trial that resulted in his convictions for first degree murder and two counts of attempted premeditated murder. Martin was sentenced to life in prison without the possibility of parole, plus two terms of life in prison, plus 45 years.
Martin contends: (1) his constitutional confrontation rights were violated by the de facto admission of hearsay testimony; (2) the evidence was insufficient to prove one of the attempted murder counts; and (3) the court committed various sentencing errors. We vacate the sentence imposed on count 3, and remand for correction of minor sentencing errors. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People's evidence.
(i) The crimes.
Karina Michel and Manuel Figueroa were engaged to be married. On May 29, 2007, at approximately 8:00 p.m., Michel and Figueroa drove to 62nd Street and Main Street in Los Angeles to get dinner at a neighborhood taco truck. Michel's 11-year-old daughter, Briana, and the couple's five-year-old son, Jacob, accompanied them. The couple parked their Honda in a parking lot next to the taco truck. The area was well-lit and approximately 10 persons were present. Michel was wearing her diamond engagement ring and a gold necklace, and carrying a designer purse. The parking lot was in an area claimed as the territory of the 66 East Coast Crips, an African-American street gang.
While the children ate their meals in the back seat of the car, Figueroa waited for his and Michel's food at the truck. Michel walked back to the car with the family's drinks. Michel placed the drinks on top of the car and reached into her purse. Suddenly, Briana and Figueroa heard a gunshot, and Michel fell to the ground. Figueroa observed Martin running from between the Honda and another car with a gun in his hand. He heard two more gunshots as Martin ran toward 62nd Street. Figueroa hurried to the car, where the children were screaming. He found Michel on the ground, nonresponsive, bleeding from a gunshot wound to her head.
Carlos Gomez was visiting his friend Nelson Ramos at an apartment building located at 62nd Street and Main Street. Just before the shooting, the two men were standing on Ramos's narrow balcony. Both Gomez and Ramos saw Martin walking out of a nearby alley, into the taco truck parking lot. Because Ramos's daughter was crying, the two men walked back inside the apartment. Shortly thereafter, they heard a gunshot, and returned to the balcony. Both men observed Martin running back towards the alley. As Gomez and Ramos watched, Martin stopped by the entrance to the apartment building's parking lot, looked up at the balcony, aimed, and fired a single gunshot at the men. Gomez and Ramos dove to the floor inside the apartment. Ramos looked out a window and observed Martin fleeing in the alley.
The taco truck vendor, Benansio Sanshez, also heard the gunshot from the direction where the Honda was parked. He saw an African-American man running from the scene, carrying a weapon. The man fired two or three more shots.
(ii) The investigation.
Michel died from a bullet wound to her forehead. Stippling around the wound showed she had been shot at close range.
Michel's necklace had been broken. It, and her engagement ring, were discovered in her jacket. A broken clasp from the necklace was found nearby. Her Dooney & Burke purse was on the ground, open, and some of the contents had scattered. An expended bullet was found beneath her leg. Two .9-millimeter cartridge cases were recovered from the scene, one from the flatbed of a truck next to Michel's body and the second in the middle of 62nd Street where Martin was observed running. Detective Eric Spear calculated that the distance between the point below the balcony and the spot from which Martin fired was 77 feet.
The day following the murder, the Los Angeles City Council offered a $50,000 reward for information regarding the crimes and publicized the reward via a flyer. As a result of a call to a homicide hotline, Martin was identified as a suspect and a six-pack photographic lineup containing his photograph was prepared. Figueroa, Ramos, Gomez, and Sanshez identified or tentatively identified Martin in the photographic lineup.Gomez also identified Martin in a live lineup, at the preliminary hearing, and at trial. Figueroa and Ramos identified other subjects as the shooter in a live lineup conducted approximately five months after the shooting, but positively identified Martin at trial. Sanshez was unable to identify anyone at the live lineup or at trial.
Ramos was certain of his identification; Figueroa was "90 percent" sure; Gomez was "[p]retty sure"; and Sanshez stated the photo looked like the shooter, but was not an exact match.
Figueroa testified that he immediately recognized Martin in the live lineup, but identified the wrong person because he was "very emotional that day, and it just brought all the memories back to my head, and I couldn't deal with it. You know, it just brought it back again, and all I remember is I just wanted to get out of there." At the live lineup, Ramos identified two subjects other than Martin as possibly being the shooter. Soon after leaving the lineup, he told a detective that he had "fucked up" and intentionally made a misidentification. Ramos explained, "I was scared because I didn't want to pick him because I lived in the neighborhood where everything happened." He had since been relocated.
(iii) Gang evidence.
Martin was arrested on June 21, 2007. In his bedroom closet, officers discovered a backpack emblazoned with East Coast Crips gang writing, a notebook containing East Coast Crips writings, and photographs, one of which showed him making an East Coast Crips gang sign.
Los Angeles Police Department gang detective Eric Rose testified that he had seen Martin "hanging out in East Coast Crip areas" at least a dozen times. Rose had spoken to Martin on approximately six occasions prior to Martin's arrest. Rose twice saw Martin at a location on West 56th Street that was a "known East Coast Crip gang hangout." On a "couple" occasions, he observed Martin with an East Coast Crip gang member named Joshua Hightower. During Rose's first contact with Martin, Martin did not state that he used a moniker. On a subsequent occasion, Martin told Rose that his moniker was "Jay;" another time, he stated it was "Spook." Rose did not memorialize either of the monikers given by Martin on a "field identification" ("F.I.") card. Rose did not recall whether Martin added " 'little' " or " 'baby' " to the " 'Spook' " moniker.
Officer Jesse Drenckhahn, a gang expert, testified regarding the customs, genesis, primary activities, hand signs, graffiti, and predicate crimes of the East Coast Crips gang. The gang is a large, predominantly Black gang with approximately 2,500 members and numerous subsets. One of the subsets, the 66 East Coast Crips, claimed as its territory the area in which the crimes took place. One of the gang's primary rivals in 2007 was the Florencia 13 gang, a Hispanic gang which claimed territory bordering East Coast Crip turf. In 2007, the two gangs had an ongoing "turf war" that had resulted in numerous homicides and assaults on both sides. Gangs function by controlling a territory and the criminal activity transpiring within, by instilling an atmosphere of fear and intimidation within the community.
Because the sufficiency of the evidence on these points is not disputed, we set forth only the evidence relevant to the issues presented on appeal.
Black gangs typically have a hierarchy, with OG's, or "original gangsters," at the top. "Soldiers," or younger, up-and-coming gang members, commit most of the violent crimes. In a Black gang such as the East Coast Crips, younger gang members sometimes take the name of an older gang member, prefacing the moniker with "Lil," "Tiny," "infant," or the like; they may also use a number system. Thus, "Spook II" and "Lil Spook" are interchangeable.
In Drenckhahn 's opinion, Martin was "definitely" an East Coast Crips gang member in 2007. Drenckhahn based his opinion on the following: (1) Martin had been stopped numerous times by gang officers in 2007. During those stops he admitted membership and sometimes gave his moniker as "Lil Jay," "Spook," or "Lil Spook." (2) He had been stopped in the presence of Joshua Hightower, a documented and self-admitted 66 East Coast Crips gang member, with whom Drenckhahn had personally interacted. (3) He had been stopped in the presence of Corn East Blackshire, an East Coast Crips member, who sported numerous gang tattoos. (4) Martin had been stopped at known East Coast Crip hangouts. (5) Photographs obtained from Martin's residence showed him with Hightower. In one, both men were wearing identical blue T-shirts, a color associated with the Crips; in the other, Martin was "throwing" an East Coast Crips gang sign. Martin "was a proud member if he's taking pictures, flashing the hand signs, and posing with other members of the gang." (6) The backpack recovered from Martin's closet was emblazoned with the moniker Spook II or Lil Spook, and "covered" with East Coast Crip gang graffiti, including derogatory terms for rivals, the names of rival gangs crossed out, and a listing of Crip subsets allied with the 66 East Coast Crips. (7) The notepad recovered from the closet contained similar gang writings, including a "roll call," or listing of fellow gang members, headed by the moniker "Spook II." In gang parlance, the writer typically puts his or her name first; the notebook therefore indicated the graffiti was written by "Spook II." Drenckhahn believed Martin's moniker was "Lil Spook," in part because Martin had given that information to Officer Rose. The notebook also contained Hightower's moniker, "Hood 4." (8) Two F.I. cards showed that on June13, 2007, Officers Ballestreros and Reedy stopped Martin and three other youths, including Hightower, on West 65th Street. Martin had identified himself as a member of the 66 East Coast Crips, and gave his moniker as "Lil Spook." It would have been unusual for a non-gang member to claim gang membership in the presence of gang members.
On the night of the murder, an officer observed recent East Coast Crips gang graffiti in an alleyway across from the shooting scene. Two weeks after the murder, other East Coast Crips graffiti was observed by officers on the wall of a store located at 56th and Broadway, near the crime scene. Drenckhahn testified regarding the meaning of the graffiti. The graffiti found at 56th Street included notations representing rival gangs, including Florencia 13, coupled with the letter "K," as well as a slash. This indicated a desire to kill Florencia 13 and other rival gang members. It amounted to a threat of violence, and was "an obvious sign of disrespect and an invitation for confrontation." The graffiti additionally contained the words, "FUC N E Mexican," with the word "Mexican" crossed out. This, in gang parlance, meant "fuck any Mexican" and indicated disrespect and a threat of violence to Mexicans in general, a hostility due to the East Coast Crips gang's rivalry with the Hispanic Florencia 13 gang. The graffiti included the moniker "Spook II," followed by an East Coast Crip "roll call." This indicated Spook II had placed the graffiti there.
When presented with a hypothetical based on the facts of the case, Drenckhahn opined that the shootings were committed for the benefit of the East Coast Crips gang.
b. Defense evidence.
Kathy Pezdek, an expert in the field of eyewitness identification, testified regarding various factors that influence a witness's ability to accurately identify a perpetrator.
A defense investigator testified that Sanshez, the taco truck vendor, had told him all young African-Americans look alike.
Karen Manada, Martin's mother, testified that Martin lived with her not far from the crime scene; Manada's sister and her four children lived there as well. As far as she knew, Martin was not a gang member and did not use a gang moniker. She had never seen the backpack or notebook found in the closet.
Martin's cousin, Ronald Harris, also lived with Martin; he was 12 years old at the time of Martin's arrest. According to Harris, Martin was not a gang member. Martin had told Harris that gangs were "not the way." The backpack found in the closet belonged to Harris. Harris's sister's friend, artist Joshua Hightower, had placed the graffiti on the backpack after Harris asked him to draw something on it. When Harris saw what Hightower had done, Harris threw the backpack in the closet because he thought he would be in trouble. Harris had suffered a felony adjudication for committing vandalism.
Martin testified in his own behalf, as follows. He denied being a gang member or using a gang moniker. He had had nothing to do with the shootings. He did not recall where he was or what he did on the day of the murder. When he was stopped by police on June 21, 2007, he was not with the three other persons who were stopped by police. Instead he was across the street. Of the three others, he knew only Hightower. He told the officers he was not a gang member; he did not state that he used a moniker. The backpack and notebook found in his closet did not belong to him, despite the fact the notebook contained his name. He was not responsible for any of the graffiti in the alley. The gesture he was making in the photograph was not a gang sign. He admitted having been placed on probation for possession of burglary tools, and being arrested for being a minor in possession of a firearm. He had found the firearm on the street and picked it up.
2. Procedure.
Trial was by jury. Martin was convicted of first degree murder (Pen. Code, § 187, subd. (a)) (count 1) and two counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)) (counts 2 and 3). The jury found Martin committed the murder while engaged in the attempted commission of robbery (§ 190.2, subd. (a)(17)); intentionally killed Karina while an active participant in a criminal street gang, to further the activities of the gang (§ 190.2, subd. (a)(22)); and personally and intentionally used and discharged a firearm in each count, proximately causing Karina's death in count 1 (§ 12022.53, subds. (b), (c) & (d)). The trial court sentenced Martin to a term of life in prison without the possibility of parole on count 1, plus 25 years. On counts 2 and 3, the court imposed a sentence of life imprisonment, plus 20 years. It imposed a restitution fine, a suspended parole restitution fine, court security assessments, and criminal conviction assessments, and ordered Martin to pay victim restitution. Martin appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Confrontation clause claim.
Martin contends the trial court committed federal constitutional error by giving an ambiguous instruction that allowed jurors to consider out-of-court statements by non-testifying police officers, related by the gang expert, for their truth. He posits that given the evidence, instruction, and arguments of counsel, there is a reasonable likelihood jurors improperly considered hearsay statements for their truth in violation of Crawford v. Washington (2004) 541 U.S. 36. We discern no prejudicial error.
a. Applicable legal principles.
Whether evidence was admitted in violation of the confrontation clause is subject to independent review. (Lilly v. Virginia (1999) 527 U.S. 116, 137; cf. People v. Seijas (2005) 36 Cal.4th 291, 304.) Likewise, an appellate court " ' "reviews the wording of a jury instruction de novo" [citation], and determines whether "the instructions are complete and correctly state the law" [citation].' " (People v. Camino (2010) 188 Cal.App.4th 1359, 1380; People v. Fenderson (2010) 188 Cal.App.4th 625, 642; People v. Bell (2009) 179 Cal.App.4th 428, 435.)
An expert may generally base his or her opinion on any matter known to the expert, including hearsay not otherwise admissible, which may "reasonably . . . be relied upon" for that purpose. (Evid. Code, § 801, subd. (b); People v. Montiel (1993) 5 Cal.4th 877, 918-919; People v. Gardeley (1996) 14 Cal.4th 605, 617-618; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426 ["An expert may give opinion testimony that is based on hearsay"].) "On direct examination, the expert may explain the reasons for his [or her] opinions, including the matters he [or she] considered in forming them." (People v. Montiel, supra, at pp. 918-919; People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.) As a result, often the expert " 'may testify to evidence even though it is inadmissible under the hearsay rule.' " (People v. Gardeley, supra, at p. 619.) "This basis evidence is inadmissible . . . for its truth." (People v. Hill (2011) 191 Cal.App.4th 1104, 1128; People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154; People v. Cooper (2007) 148 Cal.App.4th 731, 747 ["Such evidence is not admitted for the truth of the matter asserted"].) An expert's recitation of sources relied upon for his or her opinion "does not transform inadmissible matter into 'independent proof' of any fact." (People v. Gardeley, supra, at p. 619.)
"[P]rejudice may arise if, ' "under the guise of reasons," ' the expert's detailed explanation ' "[brings] before the jury incompetent hearsay evidence." ' [Citations.]" (People v. Montiel, supra, 5 Cal.4th at pp. 918-919; People v. Dean (2009) 174 Cal.App.4th 186, 193; People v. Cooper, supra, 148 Cal.App.4th at p. 747 [expert cannot bring incompetent hearsay before the jury under the guise of stating the reasons for opinion].) "Because an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment. [Citations.] Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his [or her] opinion and should not be considered for their truth. [Citation.]" (People v. Montiel, supra, at p. 919.)
Crawford v. Washington, supra, 541 U.S. 36 held that the Sixth Amendment prohibits admission of out-of-court testimonial statements against a criminal defendant unless the declarant is unavailable as a witness and the defendant had a prior opportunity to cross-examine him or her, or the declarant appears at trial. (People v. Jennings (2010) 50 Cal.4th 616, 651; Davis v. Washington (2006) 547 U.S. 813, 821.) A defendant's confrontation rights apply only to testimonial statements offered for their truth. (People v. Sisneros, supra, 174 Cal.App.4th at pp. 153-154, citing Crawford v. Washington, supra, 541 U.S. at pp. 59-60, fn. 9 ["The [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted"].)
Crawford "does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions." (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.) "As our appellate courts have repeatedly found consistent with the Supreme Court's Sixth Amendment precedent: 'Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned.' [Citations.]" (People v. Sisneros, supra, 174 Cal.App.4th at pp. 153-154; see People v. Ramirez, supra, 153 Cal.App.4th at p. 1427; People v. Cooper, supra, 148 Cal.App.4th at p. 747.) "[A]dmission of expert testimony based on hearsay will typically not offend confrontation clause protections because 'an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion.' [Citation.]" (People v. Sisneros, supra, at p. 154; People v. Thomas, supra, at p. 1210.)
Both before and after Crawford, gang experts have routinely been allowed to give their opinions regarding whether the defendant is a gang member. (See People v. Gardeley, supra, 14 Cal.4th at p. 620 [expert testified that defendants had admitted gang membership]; People v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464 [defendant's gang membership is a proper subject for expert testimony; expert may rely on, inter alia, information obtained from colleagues]; People v. Sisneros, supra, 174 Cal.App.4th at pp. 148-149; People v. Thomas, supra, 130 Cal.App.4th at pp. 1208-1209 [gang expert testified that other gang members had identified defendant as a gang member].) Such testimony does not violate the Confrontation Clause, where the hearsay basis for the expert's opinion is not offered for its truth. As explained in Thomas: "[B]ecause the statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for an expert witness's opinion, the confrontation clause, as interpreted in Crawford, does not apply. There was no error in the use of the hearsay statements." (People v. Thomas, supra, at p. 1210.) Thus, the law is clear that no Crawford violation occurs unless hearsay material upon which the expert based his opinion is admitted for its truth. (See People v. Ramirez, supra, 153 Cal.App.4th at p. 1427.) It is also settled that gang evidence is often admissible to prove motive and intent. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
b. Additional facts.
Here, the People theorized that the crimes were motivated by Martin's gang membership, and sought to use gang evidence to prove motive and intent. The defense objected to Drenckhahn's testimony insofar as it included hearsay, arguing that admission of such evidence would violate Crawford. The trial court overruled the objection, correctly noting that hearsay evidence relied upon by a gang expert as a basis for his or her opinion does not violate Crawford.
At the request of the defense, the court agreed to give a limiting instruction at the conclusion of Drenckhahn's testimony. That instruction, given shortly after close of the People's case, was as follows: "In his testimony, Officer Drenckhahn has testified that he considered information received from other officers; information documented in F.I. cards, police reports. In formulating his opinion, an expert is entitled to rely on certain hearsay matters. These hearsay matters are to be considered by you in evaluating the basis for the expert's opinion, any proof of motive or intent, and are not to be considered for the truth." The trial court did not give a written copy of the instruction to jurors.
As discussed ante, the parties elicited testimony from the expert regarding F.I. cards memorializing the June 13, 2007 stop of Martin, Hightower, and two others by Officers Ballestreros and Reedy. Without objection, the prosecutor apparently displayed two of the F.I. cards, People's Exhibits 56 and 57, for the jury. At sidebar, the trial court queried whether the defense intended to object to their admission. Upon receiving an affirmative answer, the trial court excluded the F.I. cards as hearsay. The court told the jury, "Ladies and gentlemen, the document you just saw is not offered for the truth of the matter, but just a basis upon which the expert bases his opinion. It's not offered for the truth."
During the defense case, defense counsel sought to admit two additional F.I. cards that had been prepared during the same stop, Defense Exhibits Q and R. The defense sought to use Exhibits Q and R, to demonstrate, inter alia, that Martin was stopped on one side of the street by one officer, whereas the three other men were stopped on the opposite side of the street by another officer. The trial court allowed the evidence, but ruled that the other two F.I. cards, People's 56 and 57, should also be admitted for "completeness."
c. Discussion.
Martin urges: (1) the limiting instruction was inadequate to explain the relevant principles to jury; (2) during opening statement and argument, the prosecutor discussed the hearsay evidence at issue as if it were admitted for its truth; and (3) it was unreasonable to expect jurors to engage in the type of "mental gymnastics" required to avoid considering the evidence for its truth. While a variety of hearsay evidence was used by the expert in formulating his opinion, Martin appears to focus his complaints primarily on the expert's testimony relating statements made to him by Officers Ballestreros and Reedy about Martin's admissions, during the June 13, 2007 stop, that he was a gang member with the moniker "Lil Spook," and the F.I. cards memorializing that information. Martin points out that the value of much of the other inculpatory evidence hinged on the accuracy of the conclusion his gang moniker was "Lil Spook" or "Spook II."
When reviewing a purportedly ambiguous jury instruction, we ask whether the jury was reasonably likely to have construed the instruction in a manner that violated the defendant's rights. (People v. Bacon (2010) 50 Cal.4th 1082, 1110; People v. Richardson (2008) 43 Cal.4th 959, 1028; People v. Crew (2003) 31 Cal.4th 822, 848.) " 'In conducting this inquiry, we are mindful that " 'a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.' " [Citations.]' [Citation.]" (People v. Richardson, supra, at p. 1028; People v. Harrison (2005) 35 Cal.4th 208, 252.) " 'Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" (People v. Richardson, supra, at p. 1028.)
While not a model of clarity, we do not believe the limiting instruction given by the court misled the jury. It clearly identified the relevant evidence—"information received from other officers" and "information documented in F.I. cards." It clearly stated that such evidence was "not to be considered for the truth." The only potentially confusing phrase—"any proof of motive or intent"—would most logically have been understood by jurors to mean that the identified evidence could be used to evaluate the expert's opinion as it pertained to the issues of motive or intent. Indeed, Martin acknowledges that the instruction told jurors the out-of-court statements were not to be considered for their truth in determining motive and intent.
Martin urges, however, that the instruction was misleading in that it told jurors the hearsay statements, though not admissible for their truth, were nonetheless admissible as proof of motive and intent and could serve as proof of motive or intent independently of the expert's opinion. But this approach would have made little logical sense; apart from evaluation of the expert testimony, jurors could not have made much use of the statements to evaluate motive or intent if they did not consider them for their truth. Assuming, as we must, that jurors are intelligent persons and capable of understanding and correlating jury instructions (People v. Richardson, supra, 43 Cal.4th at p. 1028), we do not believe it is reasonably probable that jurors adopted the interpretation of the instruction advanced by Martin.
The People argue that in addition to CALCRIM No. 303, CALCRIM No. 1403 cured any purported error in the limiting instruction. It did not. CALCRIM No. 1403, as given to the jury, provided: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime and special circumstances allegations charged; [¶] OR [¶] The defendant had a motive to commit the crime charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime." Contrary to the People's argument, CALCRIM No. 1403, while properly informing the jury gang evidence could not be used as propensity evidence, offered no guidance on the limited use of the evidence underlying the expert's opinion.
Further, the jury was reminded, in the written instructions, that "certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." (CALCRIM No. 303.) We presume jurors follow the court's limiting instructions. (People v. Ervine (2009) 47 Cal.4th 745, 776; People v. Hovarter (2008) 44 Cal.4th 983, 1005.) Contrary to Martin's argument, we do not view the evidence at issue here—his statements to an officer that he was a gang member with a particular moniker—as carrying the same profound impact as evidence of a defendant's confession. (See People v. Ervine, supra, at p. 776 [recognizing that limiting instructions are insufficient to protect a defendant from a nontestifying codefendant's confession implicating the defendant, but characterizing this principle as a " 'narrow exception' to the general rule that juries are presumed to follow limiting instructions"].)
Martin also urges that the prosecutor's discussion of the evidence during argument did not make clear that the June 13 statements were not to be considered for their truth. (See People v. Eid (2010) 187 Cal.App.4th 859, 883 [a reviewing court considers counsel's closing arguments to determine whether an instructional error would have misled the jury]; People v. Stone (2008) 160 Cal.App.4th 323, 331 [" 'The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury' "].) He argues that the prosecutor repeatedly referenced the evidence his gang name was "Lil Spook" or "Spook II" for the truth of the matter asserted; she also referenced the F.I. cards. This circumstance, he urges, exacerbated the purportedly confusing nature of the limiting instruction and likely resulted in the statements being considered by the jury for their truth, thereby violating Crawford.
Officer Rose testified at trial that Martin had admitted his gang membership to him, and had once given his moniker as "Spook." There was no hearsay violation inherent in this testimony; Rose testified at trial and Martin's out-of-court statements to him were admissible as party admissions. (People v. Jennings, supra, 50 Cal.4th at pp. 661-662.) Thus, when referencing Martin's gang name, the prosecutor was not necessarily relying on the statements related by officers regarding the June 13, 2007 stop.
As the F.I. cards were admitted into evidence, apparently for their truth, the prosecutor cannot be faulted for relying on the matters contained therein for their truth. Martin argues at length that the trial court erred by admitting two of the F.I cards apparently pursuant to the "rule of completeness" set forth in Evidence Code section 356. (See generally People v. Ervine, supra, 47 Cal.4th at p. 783.) The People do not address the issue. We need not address the question of whether admission was proper under Evidence Code section 356, however, because in our view admission of the F.I. cards violated neither Crawford nor state evidentiary rules.
We doubt that the F.I. cards were "testimonial" within the meaning of Crawford. (See People v. Jennings, supra, 50 Cal.4th at p. 651; Davis v. Washington, supra, 547 U.S. at p. 821; People v. D'Arcy (2010) 48 Cal.4th 257, 290.) Clearly testimonial statements include ex parte in-court testimony, affidavits, custodial examinations, prior testimony and the like. (Crawford v. Washington, supra, 541 U.S. at pp. 51-53; People v. D'Arcy, supra, at p. 290.) Statements to police are testimonial if the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis v. Washington, supra, at p. 822.) The mere fact the statements might be later used in court does not make them testimonial. "Davis now confirms that the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. Instead, we are concerned with statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14.) The critical consideration is the primary purpose of the police in eliciting the statements. (People v. Romero (2008) 44 Cal.4th 386, 422.) The statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. (People v. Cage, supra, at p. 984.)
Officer Drenckhahn testified that most patrol officer contacts with gang members are consensual; the primary duty of the gang enforcement units are to gather intelligence on gangs and monitor their activities; and the units' intelligence gathering function is "obviously for crime suppression prevention." F.I. cards are routinely filled out, turned in, and placed into a computerized system by a non-officer employee. The officers who stopped Martin on June 13, 2007, do not appear to have been specifically investigating the charged murder or attempted murders, or any other particular crime. Their contact with Martin and their gathering of information from him was not primarily to establish or prove some past fact for possible use at trial. Contrary to Martin's argument, we do not agree that the circumstances of the stop suggest the F.I. cards were "created with particular reference to this trial." (Underlining in original omitted.) While Figueroa had identified Martin in a six-pack the preceding day, Martin was not arrested or charged as a result of the June 13 stop, and it appears speculative that the patrol officers even knew he was a suspect. Thus, because the F.I. cards were not testimonial, there was no Crawford violation.
Under state law, the F.I. cards appear to be admissible under Evidence Code section 1280. That section provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness." These requirements were met here.
Martin also argues that because the Drenckhahn's testimony regarding the out-of-court statements made by other officers was often presented as fact, jurors necessarily considered the statements for their truth. In his view, jurors could not reasonably have been expected to understand and apply the difference between expert testimony and testimony offered for the truth of the matter asserted. He posits this is especially true given that the standard jury instruction regarding expert testimony told jurors they "must decide whether information on which the expert relied was true and accurate." (CALCRIM No. 332.) Thus, jurors were told on the one hand to consider whether the statements made to Drenckhahn by the officers who stopped Martin on June 13 were "true and accurate" for purposes of evaluating the expert's opinion, but on the other hand were not permitted to consider that same information for its truth for any other purpose. We observe that People v. Hill, supra, 191 Cal.App.4th 1104, expressed similar concerns regarding a gang expert's testimony, and provided a thorough critique of current law. (See People v. Hill, supra, at pp. 1129-1135, citing People v. Goldstein (2005) 6 N.Y.3d 119 [810 N.Y.S.2d 100, 843 N.E.2d 727].) We are not entirely unsympathetic to Martin's argument, but, as Hill concluded, current California Supreme Court precedent compels rejection of Martin's argument. (People v. Hill, supra, at p. 1131.)
In any event, any error was harmless beyond a reasonable doubt in light of the properly admitted evidence establishing Martin's gang membership. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Lynch (2010) 50 Cal.4th 693, 755; People v. Romero, supra, 44 Cal.4th at p. 422.) The challenged evidence went only to two points: Martin's gang membership and his moniker. Other evidence persuasively established Martin's gang membership. The jury could rely on the expert's opinion on the matter, which was only based in small part on the June 13, 2007 stops made by nontestifying officers. The evidence before the jury, and relied upon by the expert, included photographs found in Martin's room, including a picture in which Martin was shown with a known East Coast Crips gang member, throwing a gang sign. A backpack covered in East Coast Crips graffiti, and a similarly embellished notebook, were found in his closet. Further, Officer Rose—who testified at trial—stated that he had repeatedly seen Martin "hanging out" in East Coast Crip areas; had observed him at a known East Coast Crip hangout twice; and had seen him with other East Coast Crip gang members on other occasions. Martin once told Rose his moniker was "Spook." While this evidence was disputed by Martin, we view the evidence of his gang membership as overwhelming. Any error was harmless beyond a reasonable doubt.
2. Sufficiency of the evidence.
Martin next challenges the sufficiency of the evidence to prove one of the two attempted murder convictions. The evidence showed Martin fired a single shot at Gomez and Ramos as they stood on the balcony. Martin was nonetheless convicted of two counts of attempted murder. He contends that, because only one shot was fired, the evidence was insufficient to support two convictions for attempted murder. While the question is somewhat close, we conclude the evidence was sufficient.
When determining whether the evidence was sufficient to sustain a criminal conviction, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Carrington (2009) 47 Cal.4th 145, 186-187; People v. Halvorsen (2007) 42 Cal.4th 379, 419.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The relevant legal principles are set forth in two controlling decisions, People v. Smith (2005) 37 Cal.4th 733, and People v. Perez (2010) 50 Cal.4th 222.
The California Supreme Court has recognized two theories applicable when a defendant fires at more than one victim. The "kill zone" theory applies when a shooter uses lethal force designed and intended to kill everyone in an area around the targeted victim as the means of accomplishing the killing of that victim. (See People v. Bland (2002) 28 Cal.4th 313, 329-330; People v. Perez, supra, 50 Cal.4th at p. 232.) The " 'kill zone' " theory should not be confused with the theory applicable here, the "line of fire" theory. (See People v. Perez, supra, at pp. 232, 233.)
In Smith, the defendant's ex-girlfriend was seated in the driver's seat of her car, with her three-month-old baby seated in the rear seat directly behind her, in a car seat. The defendant, who appeared to be angry at the ex-girlfriend, looked through the vehicle's open window and admittedly observed the baby in the back seat. (People v. Smith, supra, 37 Cal.4th at p. 742.) Standing directly behind the car, the defendant fired a single shot, using a large-caliber bullet, into the vehicle from a distance of approximately one car length, as the car pulled away from the curb. (Id. at pp. 742-743.) The bullet shattered the rear windshield, passed through the driver's side headrest, and lodged in the driver's side door, narrowly missing both the mother and baby. (Id. at p. 736.)
The California Supreme Court found the evidence was sufficient to support two counts of attempted murder. (People v. Smith, supra, 37 Cal.4th at p. 736.) The court concluded, "the evidence is sufficient to support the jury's verdict finding defendant acted with intent to kill the baby as well as the mother. The fact that only a single bullet was fired into the vehicle does not, as a matter of law, compel a different conclusion." (People v. Smith, supra, at p. 736.) Smith rejected the argument that the fact only one bullet was fired reflected the defendant's intent to kill only one victim, the mother. (Id. at p. 738.) Smith recognized that unlike murder, the crime of attempted murder requires the specific intent to kill each victim. However, the court reasoned that intent to unlawfully kill and express malice are " 'one and the same.' " (Id. at p. 739.) Express malice requires a showing that the assailant either desired the death or knew, to a substantial certainty, that the result would occur. (Ibid.) Intent to kill or express malice may be inferred from the circumstances. (Id. at p. 741.) " 'The act of firing toward a victim at a close, but not point blank, range "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.]' [Citations.]" (Ibid.) The fact the shooter fired only once and then abandoned the attempt due to " ' "necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance." ' " (Ibid.) "To summarize, in order for the jury to convict defendant of the attempted murder of the baby, it had to find, beyond a reasonable doubt, that he acted with intent to kill that victim, i.e., that he purposefully shot into the vehicle with 'a deliberate intent to unlawfully take away [the baby's] life' [citation] or knowledge that his act of shooting into the vehicle would, ' " 'to a substantial certainty,' " ' result in the baby's death. [Citation.] There was no further requirement that a separate, or indeed any motive, be shown for his act of shooting at the baby in order to find that he acted with express malice. [Citation.] . . . . Under the case law . . . evidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both. [Citations.]" (Id. at p. 743, italics added.)
Smith favorably referenced an earlier appellate court case, People v. Chinchilla (1997) 52 Cal.App.4th 683, in its analysis. (People v. Smith, supra, 37 Cal.4th at p. 741.) Chinchilla affirmed two convictions of attempted murder based on the defendant's firing of a single bullet from a distance of 15 to 20 feet, at two police officers who were crouched, one behind the other, in the shooter's line of fire. (Id. at pp. 685-687; People v. Smith, supra, 37 Cal.4th at p. 744.) The court held, "intent to kill two different victims can be inferred from evidence that the defendant fired a single shot at the two victims, both of whom were visible to the defendant." (People v. Chinchilla, supra, at p. 685.)
In People v. Perez, supra, 50 Cal.4th 222, the California Supreme Court clarified that only one attempted murder conviction was possible when the defendant fired a single bullet at a distance of 60 feet, from a car going 10 to 15 miles per hour, at a group of seven police officers and one civilian, who were standing within 15 feet of each other in a dimly lit area. (Id. at pp. 224-225.) The defendant's shot injured one officer, but killed no one. The court rejected the view that multiple attempted murder convictions were permissible because the officers were in close proximity to each other, and the defendant's shot endangered them all. (Id. at pp. 224-225.) Perez reasoned that "shooting at a person or persons and thereby endangering their lives does not itself establish the requisite intent for the crime of attempted murder," which requires specific intent to kill. (Id. at p. 224.) The court explained, "where the shooter indiscriminately fires a single shot at a group of persons with specific intent to kill someone, but without targeting any particular individual or individuals, he is guilty of a single count of attempted murder." (Id. at p. 225.) There was no evidence Perez knew or specifically targeted any particular individual or individuals in the group; no evidence he specifically intended to kill two or more persons with the single shot; and no evidence he intended to kill more than one person, but was thwarted by circumstances beyond his control. (Id. at p. 231.) Perez distinguished Smith and Chinchilla, reasoning that in Smith, "the presence of both victims in the shooter's direct line of fire, one behind the other, gave him the apparent ability to kill them both with one shot." (People v. Perez, supra, at p. 233.) In Perez, in contrast, the evidence was insufficient to establish that the defendant "acted with the intent to kill two or more individuals by firing the single shot at the group of seven officers and a civilian." (Ibid.)
While we consider the question quite close, in our view, this case is closer to Smith and Chinchilla than Perez. The two victims here were in an enclosed space, close together. Most significantly, they were aligned in such a way that that they were both in Martin's line of fire from the single shot. The balcony was small, and they were both leaning on the railing when Martin shot at them from the side. Just as the mother and baby were aligned in the shooter's line of fire, so were the victims here. Unlike in Perez, Martin did not indiscriminately fire at a moderately dispersed group of persons without targeting any particular individual. (See People v. Perez, supra, 50 Cal.4th at p. 225.) Instead, the evidence showed he stopped, looked at the balcony, aimed, and fired. The means of force he used could have killed both victims positioned in the line of fire, had they not fortuitously dived into the apartment. Moreover, unlike in Perez, where there was no evidence the defendant knew or specifically targeted any particular individual or individuals, here it was a reasonable inference that Martin was targeting both Ramos and Gomez. The only logical inference from the evidence was that Martin fired at the men because he wished to eliminate them as witnesses to his crime, because they were Hispanic and he wished to target Hispanics due to his gang's rivalry with the Florencia 13 gang, or both. Under either circumstance, the jury could reasonably infer he hoped to kill both men: both were Hispanic, and both were potential witnesses. In sum, the jury could reasonably have inferred that Martin knew both men were on the balcony, wished to kill both, targeted both men, and was close enough that he could potentially have killed both with a single shot.
Martin contends that his case is distinguishable from Smith in two important respects. First, he posits that in his case, unlike in Smith, the evidence was insufficient to show he observed both victims on the balcony. He argues that because Ramos and Gomez were standing close together on the balcony, and he viewed them from the side, only one of the men could have been entirely visible to him. We agree knowledge of both victims' presence was required, but disagree that the evidence was insufficient on this point. Detective Spear testified that there was a streetlight directly in front of the balcony that illuminated the balcony and the street. The evidence showed Martin, positioned by the alley, to the side of the balcony, looked directly up at the balcony, paused, aimed, and shot. Nothing was blocking his view of the men and, although he saw them from the side, the jury could reasonably infer he saw both. (See People v. Chinchilla, supra, 52 Cal.App.4th at p. 690 [it was reasonable to infer from the circumstances that both victims were visible to the defendant, "who was close enough [to] . . . see the muzzle flash when he fired at them"].) Moreover, Martin ran past the front of the balcony when he headed back toward the alley, prior to shooting at the balcony. The jury could reasonably have inferred his knowledge of both men.
Martin also contends that he was at least 77 feet away from Ramos and Gomez, too far to fall within the holdings of Smith and Chinchilla. Martin is correct that 77 feet is further than the car length at issue in Smith, or the 15 to 20 feet in Chinchilla. However, he was still in relatively close range, and fired a .9-millimeter weapon at the men. As in Chinchilla, he was close enough that Gomez was able to see the "flame" when the gun discharged. Applying the deferential standard of review applicable to sufficiency of the evidence claims, we cannot say that the distance was too great, as a matter of law, to preclude application of the principles articulated in Smith and Chinchilla.
Finally, Martin posits that the California Supreme Court's more recent decision in Perez undercut the rationale of Chinchilla. We agree that, to the extent Chinchilla can be read to suggest multiple convictions are proper merely because the single shot endangered the lives of more than one person, it is not congruent with Perez. (Cf. People v. Chinchilla, supra, 52 Cal.App.4th at p. 691, with People v. Perez, supra, 50 Cal.4th at pp. 224-225.) Otherwise, however, Chinchilla's rationale remains sound. (See People v. Perez, supra, at p. 233 [citing Chinchilla].)
3. Sentencing errors.
a. Alternative sentences on count 3.
At sentencing, defense counsel argued that sentence on count 3, the attempted murder of Gomez, should be stayed pursuant to section 654, given that Martin had the same intent and objective when firing the single shot at Gomez and Ramos. The prosecutor argued, correctly, that section 654 is inapplicable when a defendant targets multiple victims. (See, e.g., People v. Martin (2005) 133 Cal.App.4th 776, 781-782; People v. Solis (2001) 90 Cal.App.4th 1002, 1023; cf. People v. Palacios (2007) 41 Cal.4th 720, 727.) The trial court stated: "As to count 3, this is a separate victim as well. However, the violence is one act in shooting towards the group, and I am exercising my discretion on that case to run the life term concurrently with count 2. [¶] Alternatively, I am imposing the life term but staying it pursuant to [section] 654 . . . ." The abstract of judgment indicates that a concurrent life term was imposed.
Martin argues that the court's statements when pronouncing judgment indicate it imposed an unauthorized sentence, requiring remand for resentencing. The People agree. When a trial court determines that a conviction falls within the purview of section 654, the court is required to impose and stay sentence. (People v. Duff (2010) 50 Cal.4th 787, 796.) Conversely, the imposition of concurrent terms implies that the trial court has found the defendant entertained multiple intents and objectives. (See generally People v. Garcia (2008) 167 Cal.App.4th 1550, 1565.) The trial court in the instant matter thus articulated inconsistent rationales for the "alternative" sentences imposed. Accordingly, we remand for resentencing so that the court can clarify its decision.
b. Section 12022.53.
The jury found true the allegations that Martin personally used and discharged a firearm, proximately causing Michel's death, on count 1 (§ 12022.53, subds. (b), (c) & (d)). As to the attempted murders, counts 2 and 3, the jury found Martin personally and intentionally used and discharged a firearm (§ 12022.53, subds. (b) & (c)). The trial court imposed sentence on the section 12022.53 enhancements as follows. On count 1, the court imposed an enhancement of 25-years-to-life pursuant to section 12022.53, subdivision (d). It declined to impose sentence on the subdivisions (b) and (c) enhancements, reasoning that they were "lesser included weapons charges." On count 2, the court imposed a concurrent 20-year enhancement pursuant to section 12022.53, subdivision (c). On count 3, the court indicated that the 20-year section 12022.53, subdivision (c) enhancement was "stayed pursuant to [section] 654" or, alternatively, would run concurrently with count 2. The court did not impose a section 12022.53, subdivision (b) enhancement on either count 2 or 3.
Section 12022.53 imposes increasingly severe sentence enhancements for firearm use in the commission of certain felonies set forth in subdivision (a) of that section. "Under section 12022.53, a defendant's personal use of a firearm in the commission of a specified felony results in an additional 10-year prison term (§ 12022.53, subd. (b)), personal and intentional discharge of a firearm leads to an additional 20 years (id., subd. (c)), while personal and intentional discharge of a firearm resulting in death or great bodily injury to a person other than an accomplice adds a prison term of 25 years to life (id., subd. (d)) to the sentence for the underlying crime." (People v. Brookfield (2009) 47 Cal.4th 583, 589-590, italics omitted; People v. Gonzalez (2008) 43 Cal.4th 1118, 1124.) "Each subdivision declares that its enhancements 'shall' be applied '[n]otwithstanding any other provision of law' and as 'an additional and consecutive term of imprisonment.' " (People v. Palacios, supra, 41 Cal.4th at pp. 725-726, italics omitted.) The legislative intent underlying the statute is to impose substantially longer prison sentences on individuals who use guns in commission of their crimes. (Id. at p. 725.)
The trial court erred in several respects. First, "the sentence enhancement provisions of . . . section 12022.53 are not limited by the multiple punishment prohibition of . . . section 654." (People v. Palacios, supra, 41 Cal.4th at p. 723.) Therefore, to the extent the court intended to stay the section 12022.53, subdivision (c) enhancement on count 3 pursuant to section 654, it erred.
Second, the court's basis for its alternative imposition of a concurrent section 12022.53, subdivision (c) enhancement on count 3 is unclear, given the statutory language that the enhancement is to be imposed as "an additional and consecutive term of imprisonment" "[n]otwithstanding any other provision of law." (§ 12022.53, subd. (c), italics added; People v. Palacios, supra, 41 Cal.4th at pp. 725-726.)
Third, subdivision (f) of section 12022.53 provides in pertinent part: "[o]nly 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." (See People v. Gonzalez, supra, 43 Cal.4th at p. 1125.) Subdivision (f) has been construed to require that, "after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements . . . must be imposed and then stayed," not under section 654, but pursuant to section 12022.53's statutory language. (People v. Gonzalez, supra, at pp. 1122-1123 & fn. 5.) Accordingly, here the trial court should have imposed and stayed the section 12022.53, subdivision (b) enhancements on all three counts, and the subdivision (c) enhancement on count 1, and is directed to do so on remand.
DISPOSITION
The sentence imposed on count 3 is vacated, and the matter is remanded for resentencing in accordance with the opinions expressed herein. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
KLEIN, P. J.
CROSKEY, J.