Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County Super. Ct. No. TA079975, Ronald V. Skyers, Judge.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth D. McGee.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant Bernard Green.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
Kenneth D. McGee and Bernard Green were charged with and convicted of one count of first degree murder, with true findings on allegations that an armed principal personally used and intentionally discharged a firearm causing the victim’s death, and that the murder was gang related. (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b), (c), (d), (e)(1), 186.22, subd. (b)(1)(B).) McGee and Green were both sentenced to state prison for total terms of 50 years to life. Both appeal, contending there were instructional, evidentiary, and sentencing errors. We vacate their sentences to allow the trial court to impose and stay sentences on two of the firearm enhancements, but otherwise reject their claims of error and affirm the judgments.
All section references are to the Penal Code.
FACTS
A.
McGee and Green, joined by Porsha Hampton and Sashae Craig, spent the night of July 2, 2005 at Green’s house. The next morning, Hampton was driving McGee, Green and Craig to Craig’s house when she stopped to pick up her cousin, Ronald Belvin.
Belvin (dressed in Crips gang colors) got into the back seat and sat behind Hampton (Green was in the front passenger seat, McGee was behind him, and Craig was in the middle in the back seat, between Belvin and McGee). As soon as Belvin got in, McGee asked him, aggressively, “Where are you from?” Belvin answered, “East Coast.” Green (“excited” and “mad”) and McGee told Belvin, “this is Millers” (referring to the Miller Gangster Bloods, or the MGB). Belvin said he didn’t “gang bang” and told McGee he had not heard of “Millers” (which “denigrated” the MGB).
Green told Hampton to stop at an apartment complex that was the MGB’s “base of operations,” explaining that he wanted to get a sweater. When they arrived, McGee and Green entered the complex, then returned to the car a few minutes later without a sweater.
Green told Hampton to drive to Craig’s house. When they arrived, Green got out of the car and told Belvin, “Homey, catch my fade” (meaning he wanted to fight). Belvin remained in the car. McGee pulled out a revolver, put it to Belvin’s head and told him, “Homey, you gonna catch our fade.” Belvin “freaked out” and tried to flee but McGee and Green gave chase, “double teamed” him, caught him, and punched and kicked him. Belvin did not fight back and tried to get away but Green, who then had the gun, shot Belvin twice from a distance of about three feet. Hampton jumped out of the car and tried to take the gun from Green but he pushed her out of the way. Belvin managed to get up and started to climb over a nearby gate leading to the back of a house. McGee took the gun from Green, telling him “Let me get some of this,” ran after Belvin, and shot him three times. McGee and Green fled on foot.
B.
Sheriff’s deputies arrived at the scene to find Belvin still breathing (he died at the hospital later that morning). Hampton spoke to the deputies at the scene and again that afternoon at the station, describing the conversations and events summarized above. At the scene, Hampton said the men were arguing in the car, and that it was Belvin who first asked, “Where are you from?” At the station and at trial, Hampton related the events as set out above.
Green and McGee were arrested and charged as noted at the outset. At trial, the People presented evidence of the facts summarized above. A firearms expert and the doctor who performed the autopsy testified to facts establishing that the fatal bullet entered at a trajectory suggesting that Belvin was shot as he was climbing the gate. In addition, a gang expert (Sgt. Douglas Jensen) testified that the MGB was also known as the “Athens Miller Gangsters” because the MGB had joined forces with the Athens Park Bloods, which together had an ongoing rivalry with the Crips. The primary activities of the MGB (which has about 48 members) are robberies, narcotics sales, and assaults on rival gang members (two members had previously been convicted of crimes enumerated in section 186.22). Sgt. Jensen (who knew both Green and McGee as admitted MGB members) testified about the gang’s concept of “respect” and the commission of violent crimes to instill fear in the community.
When presented with a hypothetical set of facts based on the evidence presented at this trial, Sgt. Jensen opined that the murder was committed for the benefit of and to promote the MGB, explaining that one gang member is expected to back up the other and that both are expected to promote themselves within the gang. He also testified that the stop at the gang’s headquarters suggests that is where they got the gun.
The jury convicted Green and McGee as charged.
DISCUSSION
I.
McGee and Green contend the trial court should have granted their requests to instruct the jury on the lesser included offense of voluntary manslaughter (CALCRIM No. 570), claiming the evidence of the rivalry between the Bloods and Crips constitutes substantial evidence of provocation. We disagree.
A.
The trial court has no duty to instruct on any lesser included offense unless there is substantial evidence to support the lesser crime. (People v. Cunningham (2001) 25 Cal.4th 926, 1007-1008; People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Barton (1995) 12 Cal.4th 186, 201.)
McGee and Green were charged with murder, which is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) They wanted instructions on voluntary manslaughter, which is an unlawful killing without malice and is a lesser included offense of murder -- but only when the requisite mental element of malice is negated by a sudden quarrel or heat of passion. (People v. Lee (1999) 20 Cal.4th 47, 59; People v. Breverman, supra, 19 Cal.4th at pp. 153-154; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) A defendant is entitled to voluntary manslaughter instructions only when there is evidence of both heat of passion and provocation caused by the victim. (People v. Steele (2002) 27 Cal.4th 1230, 1253; People v. Manriquez (2005) 37 Cal.4th 547, 583.)
B.
The argument here -- that evidence of “gang talk” between rival gang members, the gang challenge, and the expert’s testimony about the rivalry between the Bloods and Crips was evidence of both provocation and heat of passion -- is in essence an argument that provocation and heat of passion should be judged not based on an “ordinary and reasonable man” standard but instead on the standard of an “ordinary and reasonable gang member.” Neither Green nor McGee cites any authority to support such a rule and we know of none.
Belvin did nothing to provoke his own death. He simply got into his cousin’s car and admitted he was a member of the Crips. The evidence relied on by McGee and Green -- a summary of Hampton’s first statement to the police which includes a statement that when the three men got out of the car, there was a “heated argument” just before McGee shot Belvin -- does not begin to establish heat of passion or provocation. Indeed, uncontroverted evidence establishes that Belvin was unarmed, that he told McGee and Green that he didn’t “gang bang,” and that he did his best to flee. The issue is whether Belvin did anything to cause an “ordinary man of average disposition” to act rashly, not whether he did anything (such as wearing blue clothes and admitting he was a member of the Crips) that would cause a rival gang member to kill him. (People v. Breverman, supra, 19 Cal.4th at p. 163; People v. Johnston (2003)113 Cal.App.4th 1299, 1311-1312.) The evidence established a cold-blooded murder, not voluntary manslaughter, and the request for instructions on the lesser included offense was properly denied.
Yet this is the defense perception of this case: “Judged from the defense’s view of the evidence, [Green] was driving in a car when his girlfriend stopped to pick up her cousin, Mr. Belvin. To [Green’s] surprise, Mr. Belvin entered the car wearing the garb of a homicidal street gang. He announced himself as a member of the East Coast Crips, and demanded that [Green] state his own gang affiliation. There was a baseball bat under [the driver’s seat, but no evidence that Belvin knew it was there]. It also was reasonable to assume that Mr. Belvin was armed with a weapon. It was common knowledge to the general citizenry of the area that the Bloods and Crips were engaged in a violent turf war, and that Crips had murdered Bloods. . . . The prosecutor’s gang expert confirmed that [Green and McGee] would be ‘focused,’ ‘hyper vigilant,’ and ‘tense’ when Mr. Belvin entered the car, and would have the heightened emotional response of any reasonable person when confronting a sworn enemy.” Noticeably absent from this scenario is any explanation for Belvin’s decision to knowingly get into a car with two Bloods.
We summarily reject Green’s suggestion that he and McGee were entitled to voluntary manslaughter instructions on an imperfect self-defense theory. Although this instruction was in the package requested by the defendants, they did not discuss it with the court during the jury instruction conference, and neither offered any argument to support such a theory. In fact, McGee told the court that he and Green were “not claiming self-defense . . . .” In any event, there isn’t a shred of evidence to support this theory. As noted in the text, Belvin was unarmed and unable under the circumstances to pose any sort of threat to McGee or Green.
Were we to find error, we would find it harmless. (People v. Watson (1956) 46 Cal.2d 818; People v. Breverman, supra, 19 Cal.4th at pp. 164-165, 177-178.) The evidence was overwhelming -- Hampton testified that McGee and Green initiated the gang challenge, stopped to get a gun, then shot Belvin as he tried to escape. This was not a close case.
II.
McGee contends there is insufficient evidence that the MGB had as one of its primary activities the commission of one or more offenses enumerated in subdivision (e) of section 186.22, and Green contends there is insufficient evidence that the murder was committed with the specific intent to promote, further, or assist the MGB as required by subdivision (b)(1)(B) of section 186.22. Neither claim has merit.
A.
McGee concedes that the gang expert testified that the primary activities of the gang were robberies, drug sales, and assaults on rival gang members, but contends the evidence is nevertheless insufficient because there are no details about the gang’s other crimes, the identity of the offenders, or the number of other offenses. The case relied on by McGee, In re Alexander L. (2007) 149 Cal.App.4th 605, is inapposite.
When asked about the gang’s primary activities, the gang expert in Alexander testified, “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ No further questions were asked about the gang’s primary activities on direct or redirect examination.” (In re Alexander L., supra, 149 Cal.App.4th at p. 611.) Division Three of the Fourth District found this evidence insufficient to satisfy the statute because the expert’s testimony lacked an adequate foundation: “We cannot know whether the basis of [the expert’s] testimony on this point was reliable, because information establishing reliability was never elicited from him at trial. It is impossible to tell whether his claimed knowledge of the gang’s activities might have been based on highly reliable sources, such as court records of convictions, or entirely unreliable hearsay.” (Id. at p. 612.)
Later in the opinion, the court adds that the expert also testified about two specific crimes committed by gang members, an assault with force likely to cause great bodily injury for which the offender “was apparently convicted,” and an assault with a deadly weapon by another gang member. (In re Alexander L., supra, 149 Cal.App.4th at pp. 612-613.)
In our case, there is no question about the foundation for Sgt. Jensen’s testimony about the MGB’s other crimes. Sgt. Jensen was the “primary investigator” for the MGB gang, with detailed knowledge about its size, its territory, its signs and symbols, and its affiliation with other Bloods gang. He reviewed all field interviews by other deputies, and had personally interviewed Green, McGee, and many other members of the MGB. He testified that two gang members, Marvin Burrel and Marquise Delifus, had been convicted of robbery and assault with a deadly weapon -- and that he had been personally involved in the investigation of those offenses. No more was required. (People v. Duran (2002) 97 Cal.App.4th 1448, 1465 [the testimony of a gang expert, founded on his conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from other law enforcement officers may be sufficient to prove the gang’s primary activities].)
B.
Green (joined by McGee) contends there is insufficient evidence that this murder was committed for the benefit of, at the direction of, or in association with the gang with the specific intent to promote the gang’s criminal conduct. This is so, he claims, because the only evidence on this point is the expert’s “unsubstantiated presumption” that every criminal act by a gang member is done for the benefit of the gang. He claims the expert’s opinion should have been excluded. We disagree.
1.
In response to a hypothetical question based on the facts of this case and inquiring specifically whether this murder was “committed to promote, to further, to benefit the Miller Blood Gang or in association with the Miller Blood Gang,” Sgt. Jensen responded that the crime was gang-related and committed for the benefit of and to promote the MGB, and explained his answer thus:
“Initially, as soon as you have the cousin [who] was referred to being challenged aggressively by gang members one and two -- any time a gang member asks or in the gang environment the question is asked ‘Where are you from’ in an aggressive tone, that is a challenge, that is a gang challenge. That is something -- I’m from somewhere. I want to know where you’re from. Because of . . . those rivalries. They want to know who they’re dealing with. Once . . . the cousin presented himself as an East Coast member, and the Miller Gangsters knew that he was a traditional rival, it is their task as Blood gang members who are rivals to do something about it, either beat him up, shoot him, do something.
“They have to take positive action or should take some type of positive action for their gang to put this other gang member down that, one, promotes themselves and their gang within -- if this victim, so to speak, had gotten away, he would have told [others that] Miller Gangsters did this. That actually increases his respect or the gang’s respect if they’re taking care of their business. Individual gang members would then also -- in this case increase their respect, their reputation within the gang by committing such a brazen act of violence . . . apparently in front of witnesses that know them, the two females.
“Again, that level of violence continues, the intimidation factor for the residents of the community. By doing that, that further assists the gang for future crimes because those people probably will not testify the next time or come forward in any other investigations fearing that they may be victimized.”
Sgt. Jensen was then asked whether the fact that there were two gang members in any way affected his opinion that the crime was done in association with the MGB. He responded: “Well, the fact that the two members . . . went to [the apartment that was their headquarters] previous to the crime . . . would generally dictate that they are either going to recover a weapon or brag to other gang members, tell them what they’re doing, as for input as to what they’re doing. The fact that there’s two members means that whatever one person does, the other person is expected to support him. He’s got back up. He’s gonna be protected and they stand together. It’s all do[ne] for the gang.”
Similar questions were asked and answered on cross-examination, and a virtually identical question was asked on redirect (the answer was the same). Although Green objected to the questions asked on direct, he did not object to the questions asked on re-direct.
2.
Leaving to one side any question about whether Green’s challenge to this testimony was waived by his failure to renew his objection during the prosecutor’s redirect examination of Sgt. Jensen, the bottom line is that the opinion was properly admitted because it described a subject sufficiently beyond common experience and was necessary to the jury’s understanding of the issue. (People v. Williams (1997) 16 Cal.4th 153, 195; People v. Gonzalez (2006) 38 Cal.4th 932, 944; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4 [a gang expert may opine that facts assumed to be true in a hypothetical question present a classic example of gang-related activity so long as the hypothetical is rooted in facts shown by the evidence].) And although an expert is not allowed to testify that a specific individual had a specific intent (People v. Killebrew (2002) 103 Cal.App.4th 644, 658), his testimony is not objectionable simply because it embraces the ultimate issue to be decided by the jury (People v. Valdez (1997) 58 Cal.App.4th 494, 507).
Here, Sgt. Jensen did not say that he knew or had an opinion about Green’s or McGee’s intent. To the contrary, he opined, as permitted, that the crimes described in the prosecutor’s hypothetical questions were committed with the intent to benefit and promote the MGB gang. His expertise explained the motivation for the crime, something the average juror could not have understood in the absence of expert testimony. (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.)
In the context of this argument in Green’s brief, and in his and McGee’s separate arguments in their opening briefs, their reliance on People v. Killebrew, supra, 103 Cal.App.4th at page 658, is misplaced. The expert in Killebrew testified about the subjective knowledge and intent of the defendants. Sgt. Jensen offered no such testimony in our case.
Because the testimony was properly admitted, the evidence is sufficient to support the gang enhancement.
III.
McGee does not challenge the finding that he personally and intentionally discharged a firearm, but does claim there is insufficient evidence that he personally fired the fatal shot. We disagree.
Hampton testified that when Belvin tried to escape by climbing the gate, McGee took the gun from Green, chased Belvin, and shot him at least three times. The undisputed medical evidence suggested the fatal bullet wound was sustained as Belvin was climbing the gate. Accordingly, there is substantial evidence that McGee fired the fatal shot, and no more was required. (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Autry (1995) 37 Cal.App.4th 351, 358-359; People v. Thornton (1974) 11 Cal.3d 738, 754, overruled on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.)
We reject McGee’s contention that this enhancement cannot stand because the jury rendered inconsistent verdicts by finding also that Green personally discharged a firearm and caused Belvin’s death. The inconsistency shows no more than jury “lenity, compromise, or mistake, none of which undermines the validity of a verdict.” (People v. Lewis (2001) 25 Cal.4th 610, 656.)
IV.
In addition to convicting McGee of the murder and returning a true finding on the gang enhancement allegation, the jury found true the allegations that McGee personally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)), personally discharged a firearm (§ 12022.53, subds. (c), (e)(1)), and personally used a firearm (§ 12022.53, subds. (b), (e)). The trial court sentenced McGee to a term of 25 years to life for the murder, plus a consecutive term of 25 years to life for the finding that he had personally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)) -- but did not impose, stay or strike the enhancements for the two other firearm allegations. McGee claims the two lesser enhancements should have been stricken.
We agree there was error but conclude that the appropriate remedy is a remand to the trial court with directions to impose, then stay the sentences on the lesser firearm enhancements (and note that this issue is pending before the Supreme Court in People v. Gonzalez (2006) 146 Cal.App.4th 327 , review granted March 14, 2007, S149898). (See People v. Bracamonte (2003) 106 Cal.App.4th 704, 713 [section 12022.53 compels the trial court to add the applicable enhancement for each firearm discharge and use allegation found true, then stay execution of all such enhancements except the one providing the longest imprisonment term]; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062.)
Although Green does not join in this issue, he was sentenced in the same manner and the same modification should be made to his judgment.
DISPOSITION
McGee’s and Green’s sentences are vacated and the causes are remanded to the trial court with directions to impose sentence on the two lesser gun enhancements (§ 12022.52, subds. (b), (c), (e)(1)), then stay execution as to those sentences and forward corrected abstracts of judgment to the Department of Corrections; in all other respects, the judgments are affirmed.
We concur: MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.