Opinion
B219922 Los Angeles County Super. Ct. No. MA041498
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. TAURUS DAVON MILLER et al., Defendants and Appellants.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Taurus Davon Miller. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Robert Damien Anderson. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from judgments of the Superior Court of Los Angeles County. Charles A. Chung, Judge. Affirmed.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Taurus Davon Miller.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant Robert Damien Anderson.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, Taurus Davon Miller was convicted of first degree murder and five counts of attempted murder. Codefendant Robert Damien Anderson was convicted of second degree murder and five counts of attempted murder. Both defendants appeal on numerous grounds. We affirm the judgments.
FACTS
We summarize the evidence in accordance with the usual rules on appeal. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) On February 1, 2008, R.L. was at her home with several family members. A group of men came to the apartment looking for another family member, Anthony L., who was not there. The encounter concerned allegedly stolen money. When Anthony L. arrived at the apartment a short time later, he, Lawrence Hart, D.H., Brian M., Christian D., and George O. left to find the men who had come to the apartment. They saw Robert Anderson by a bus stop with a girl. Anderson stared at them. Brian M. stepped off the sidewalk into the street in Anderson's direction and yelled, "What's up? 98 Main Street." Anderson replied with the words, "This West Boulevard Crip," or "West Boulevard," or "West Boulevard Mafia." Brian M. appeared agitated. Anderson began to run away. The group followed as Anderson ran to an apartment complex. As he ran, Anderson yelled, "Hey, 'cuz. Hey, 'cuz." Anderson entered the apartment complex and went to the balcony or patio area of one of the apartments.
Anderson went into the apartment and came out with his brother, Michael Hubbard, and Taurus Miller. The two groups exchanged words. R.L. had caught up with the Brian M. group in a car, and she called out that this was not the same group of men who had come by her house earlier. Brian M. said to Anderson something along the lines of "I see now that you have your boys out here, you want to talk mess." Brian M. and the others then turned and walked away. Hubbard raised a gun and shot at the group, hitting Lawrence Hart in the chest. Miller then took the gun and fired a number of additional shots. Witnesses heard between two and five additional shots.
Hubbard was also a defendant in this case. We consider his appeal separately in case No. B221341.
Hubbard, Anderson, and Miller immediately fled. Elizabeth H., Hubbard and Anderson's sister, was at the apartment at the time of the shootings. She called her boyfriend, M.S., after the incident. Elizabeth H. told M.S. that Hubbard had just shot someone. She said Miller loaded the gun.
The defendants went to stay with Miller's girlfriend, Christina C., in Compton. Around one week later, Christina C. received a telephone call from Miller, who was on the run in Las Vegas. Hubbard was on the line, along with another friend, Rodney D. During the telephone call, Hubbard told Rodney D. that on the day of the shooting, some men were trying to jump Anderson. Hubbard came out with a gun and fired. Hubbard said he thought he had shot the victim in the head. Miller told Rodney D. he loaded the gun and gave it to Hubbard. Miller also told Rodney D. that Hubbard shot once, then Miller shot the gun three more times to try to back up Hubbard.
At the scene of the shooting, police found three .45-caliber expended cartridge casings and a .45-caliber copper jacketed bullet. In the living room of Hubbard and Anderson's apartment, police found three live .45-caliber bullets, an empty .45-caliber ammunition clip, and one additional .45-caliber bullet in a pair of pants. Police also recovered mail bearing Miller's name, and a cell phone that said "Taurus" and "Shamrock" on the screen. There was a backpack containing pieces of paper, some of which displayed Hubbard's name, and others Anderson's name. In addition, police found a green notebook with Hubbard's name on the cover. Inside the notebook were notations referring to gangs in Long Beach, the 49th Street Hustler Crips, the West Boulevard Crips, and music lyrics or other gang-themed writings.
At the trial, the People offered the testimony of gang expert Long Beach Detective Gary Hodgson. Hodgson was familiar with a gang known as the 49th Street Hustler Crips. The gang had five members on record. Hodgson testified that because of the gang's small size, it had formed an alliance with Sex, Money, Murder, a larger gang. According to Hodgson, Miller had admitted to other detectives that he was a member of the 49th Street Hustler Crips gang. Hodgson also opined that Hubbard was a member of the 49th Street Hustler Crips gang based on photographs of Hubbard's tattoos and attire, and writing from Hubbard's notebook.
Based on a hypothetical summarizing the evidence presented at trial, Hodgson opined that the shooting was carried out to benefit the 49th Street Hustler Crips gang. Hodgson explained that the shooting would elevate the position of the shooter in the gang and would also create a reputation for the gang in that neighborhood. Hodgson testified: "[If] they commit a crime, they are less likely to have somebody report it because they don't want to be involved with the gang. They don't want the gang coming at them. And it shows to the other gangs around that area that they take care of business and not to mess with them."
At trial, the People also played the jury an excerpted recording of a conversation among Hubbard, Anderson, and Miller while they were in a police holding cell. In the conversation, the three discussed what they had told police. Miller said he told the police he fired three shots. Hubbard asked if Miller talked to police about him. The three discussed what was at Hubbard and Anderson's house:
"MILLER: They think it was two guns.The three also talked about other people, including someone "from 49." Hubbard said he would handle matters: "Hey, I'm telling you, cuz. Hey. Hey. Bro, I'm gonna handle this shit. Don't trip. I'm gonna handle this shit. If I get out none of the niggers is coming to court. If I get out, I'm going to make sure -- I was just trying to say this you feel me --I'll make sure that you get out and he get out." The three debated whether they could beat the charges and what evidence the police had. They also discussed the rumored gang affiliation of Lawrence Hart and interactions among gang members in jail.
"HUBBARD: Why?
"ANDERSON: Why?
"MILLER: I don't know. They told, um, they -- they think it's two guns.
"HUBBARD: Cuz why?
"ANDERSON: Oh. Because they found that shit in our house.
"MILLER: Was there two there, the rest of them, what?
"ANDERSON: And I assume they found that shit in our house.
"MILLER: Which one?
"ANDERSON: The shit that -- the shit -- man, you know what I'm -- the shit in our house.
"MILLER: You talking about your bedroom?
"HUBBARD: Fuck.
"ANDERSON: No. There -- there wasn't shit in the house.
"MILLER: There was only one gun though. That clip --
"ANDERSON: ___ they said they told you they found it?
"MILLER: Yeah. He was like, he told me my fingerprints was on the clip. [¶] . . . [¶] . . . Just the clip that just -- we ____. I mean it wasn't [¶] . . . [¶] . . . used in a crime or nothing."
Hubbard testified in his own defense. According to Hubbard, on the day of the shooting he was packing a bag and preparing to go to Long Beach. He heard a commotion outside and went to the window. He saw a lot of people chasing someone. When he saw that it was Anderson being chased, he went outside and hopped over the balcony. Hubbard heard people in the group saying, "Where are you runnin', you bitch ass nigger. Bring your ass back here." Hubbard walked closer to the group and asked what was going on. Someone pulled up in a car and said, "That's not the people," but the crowd did not care. Miller approached and told Hubbard the crowd had a gun. Miller handed Hubbard a gun. Hubbard held the gun in the air to show the crowd he had it. The group that had gathered ran off and Hubbard walked around the corner to make sure they had all left. Hubbard was scared. He thought there were 10 to 15 people assembled. He displayed the gun to scare the crowd and make the people run away. Although most were running away, Hubbard saw a few men turn as if to run towards him. The gun he was holding went off. Hubbard was puzzled that the gun had fired, then he looked down and saw it at his feet. Miller picked up the gun. Hubbard did not recall hearing any additional shots. Anderson ran up to Hubbard and said, "What the fuck you just do?" Hubbard answered that he did not know, and they ran away.
Hubbard testified that he did "nothing really" as a 49 Street Hustler Crips gang member. He went to parties and hung out with the group. He explained that he was using a lot of street terms in the holding cell conversation because he wanted to sound tough, not scared. He indicated that when he went onto the balcony during the incident and was handed a gun, he was not thinking about being a 49th Street Hustler Crip, nor did he have such thoughts when the gun went off. He claimed to have no connection with the Sex, Money, Murder gang and knew of no connection between the gang and the 49th Street Hustler Crips.
Hubbard, Anderson, and Miller were tried jointly, but with dual juries; one jury for Hubbard, and one for Anderson and Miller. The jury found Miller guilty of one count of willful, premeditated and deliberate first degree murder for the killing of Lawrence Hart. (Pen. Code, § 187, subd. (a).) The jury also found Miller guilty of the attempted murders of Brian M., Christian D., D.H., Anthony L., and George O. The jury found true allegations that the attempted murders were committed willfully, deliberately, and with premeditation pursuant to section 664, subdivision (a). The jury also found true gang enhancements in connection with each count. The jury further found true allegations that Miller personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c) (counts 2-6), and that a principal personally and intentionally discharged a firearm proximately causing Hart's death, within the meaning of section 12022.53, subdivisions (d) and (e)(1) (count 1). The trial court sentenced Miller to a total prison term of 85 years to life.
The jury found Anderson not guilty of willful, premeditated and deliberate first degree murder. Instead, the jury found him guilty of one count of second degree murder for the killing of Hart. (Pen. Code, § 187, subd. (a).) The jury also found Anderson guilty of five counts of attempted murder, and found true the allegation that the attempted murders were committed willfully, deliberately and with premeditation. (§ 664, subd. (a).) The jury found not true gang enhancements alleged as to all six counts. The jury found true allegations that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c), (d), and (e)(1). The court struck the section 12022.53 allegations as improper in light of the jury's conclusion that the gang enhancements were not true. The trial court sentenced Anderson to a total prison term of 15 years to life.
Miller and Anderson both timely appealed.
DISCUSSION
I. Anderson's Appeal
On appeal, Anderson contends: (1) there was insufficient evidence to find Anderson aided and abetted the murder or attempted murders; (2) Anderson's counsel was ineffective because he failed to object to the admission of evidence regarding Anderson's prior possession of a gun; (3) the trial court improperly admitted evidence that a witness had been intimidated; (4) the trial court prejudicially erred when it failed to instruct the jury on the definition of assault; (5) in the jury instruction on the natural and probable consequences doctrine, the jury should have been instructed that it was required to find premeditated attempted murder was a natural and probable consequence of assault with a firearm; (6) there was insufficient evidence to support the application of the "kill zone" theory; and (7) Anderson's counsel was ineffective for failing to object to his sentence which constituted cruel and unusual punishment.
We address each argument below.
A. Sufficient Evidence Supported the Jury's Aiding and Abetting Finding
Anderson argues there was insufficient evidence to support a finding that he facilitated an assault with a firearm or that he had the requisite intent to be convicted on an aiding and abetting theory. We disagree.
To assess Anderson's argument, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. (Zamudio, supra, 43 Cal.4th at p. 357.) We do not reweigh the evidence or resolve evidentiary conflicts. "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (Ibid.)
At trial, the prosecutor argued Anderson either aided and abetted the murder and attempted murders, or that he aided and abetted an assault with a firearm and could be found guilty on a natural and probable consequences theory. "Aider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him carry out the offense. [Citation.] '[W]hile mere presence at the scene of an offense is not sufficient in itself to sustain a conviction, it is a circumstance which will tend to support a finding that an accused was a principal. [Citations.]' [Citation.] ' "[C]ompanionship, and conduct before and after the offense" ' are also relevant to determining whether a defendant aided and abetted a crime. [Citations.]" (People v. Miranda (2011) 192 Cal.App.4th 398, 407 (Miranda).)
"Under the natural and probable consequences doctrine, an aider and abettor is guilty of not only the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the actual perpetrator. The defendant's knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. [Citation.] The elements of aider and abettor liability under this theory are: the defendant acted with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. [Citation.] An aider and abettor may also be convicted of a nontarget crime that is lesser than the nontarget crime committed by the actual perpetrator." (Miranda, supra, 192 Cal.App.4th at pp. 407-408.)
Here, there was sufficient evidence to find Anderson aided and abetted the murder and attempted murders, or aided and abetted an assault with a deadly weapon. After Anderson got into a confrontation with Brian M. and his group, he ran home. There was evidence from which the jury could reasonably infer that Anderson knew Hubbard and Miller were at the apartment, and that there was a firearm and ammunition in the apartment. As Anderson ran home, he cried out, "Hey, 'cuz," in an attempt to alert someone at the apartment. Elizabeth H. told police that Miller had been at the apartment for a week prior to the shooting. In the holding cell recording, Anderson discussed with Hubbard and Miller what police found at the apartment. Anderson stated he "assume[d] they found that shit in our house" and appeared to be referring to an ammunition clip. The conversation supported the inference that Anderson knew there was a gun and ammunition at the apartment.
In addition, Brian M. had called out a gang name, and there was evidence from which the jury could reasonably infer that Anderson knew Hubbard and Miller were members of a different gang. Based on Anderson's apparent familiarity with gangs in the recorded holding cell conversation, and aided by the gang expert's testimony, the jury could also conclude that Anderson knew the probable dynamics of a confrontation between members of different gangs. This included the likelihood that a challenge between gang members would precipitate a violent confrontation. (See People v. Hoang (2006) 145 Cal.App.4th 264, 275-276 [sufficient evidence of aiding and abetting assault with a deadly weapon and attempted premeditated murder where defendant responded to verbal slight against girlfriend by bringing gang members to confrontation, then defendant made no move to defuse situation or leave].)
Elizabeth H., Hubbard and Anderson's sister, told police Anderson went into the apartment before going back out with Hubbard and Miller, with Hubbard carrying a gun. An unrelated witness also saw the defendants go into one of the apartments before the shooting.
Sean G. was driving down the street where the shooting occurred, headed toward the victim's group. From the corner of his eye, he saw three people running single file, all with their arms extended. When he first saw them, he assumed they were playing paintball or firing air soft guns. He then heard, but did not see, shots being fired, and within seconds came upon the victim, who had been shot and was surrounded by his companions. Before the confrontation, Jim L. saw the three defendants "creeping" along the wall of the apartment complex heading toward the victim's group, which also suggested some form of plan. D.H. heard Anderson and Hubbard both keep repeating to someone in the group, "Do you want problems, cuz?" Anderson stood next to Hubbard and Miller as Hubbard displayed the gun, then shot Hart. There was no evidence that Anderson in any way attempted to distance himself from the shootings. After Hubbard and Miller fired the gun, Anderson immediately fled with them. (In re Juan G. (2003) 112 Cal.App.4th 1, 5 [presence at the crime scene, companionship, and conduct before and after the offense are relevant factors in determining aiding and abetting]; People v. McDaniels (1980) 107 Cal.App.3d 898, 904.)
Anderson contends there was insufficient evidence for the jury to conclude he went into the apartment before the shooting, which would have allowed him time to confer with Hubbard and Miller and see that they were bringing out a gun. We disagree. Evidence that Anderson went into the apartment came from a witness's trial testimony, and Elizabeth H.'s interview with police, which was conducted shortly after the shooting. Although she testified at trial that Anderson did not enter the apartment, it was for the jury to resolve the conflict in the evidence. The jury could reasonably believe Elizabeth H.'s interview with police was accurate and her testimony on this point false. (People v. Young (2005) 34 Cal.4th 1149, 1181 [testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable]; People v. Allen (1985) 165 Cal.App.3d 616, 623 [jury entitled to believe some parts of a witness's testimony and reject others].) We construe conflicts in the evidence in favor of the judgment. (Zamudio, supra, 43 Cal.4th at p. 357.)
At a minimum, the evidence adduced at trial was sufficient for the jury to conclude Anderson had knowledge of Hubbard's and Miller's unlawful purpose, he intended to encourage or facilitate an assault with a firearm, and he encouraged or instigated the assault with a firearm.
B. Anderson's Counsel Was Not Ineffective for Failing to Object to Evidence of Anderson's Prior Gun Possession
i. Background
At trial, Leticia H. testified. Leticia H. was Lawrence Hart's cousin. She was also at one time roommates with Hubbard and Anderson's older brother, Nicholas D., and Nicholas D.'s girlfriend, Maya A. Anderson also lived at their apartment. Leticia H. testified that she once saw Anderson with a gun. The gun belonged to Maya A.'s cousin's boyfriend, who was visiting. Leticia H. testified that "they all had the gun," including Anderson. Leticia H. indicated Anderson did not say: "I got the gun from so and so or this is where I got the gun from[.]" She did not know what kind of gun it was and never heard Anderson talk about what kind of gun it was. She did not remember what the gun looked like, other than that it was black. She never saw any other guns in the house.
The defense's only objection to this testimony occurred when Leticia H. said "they thought he [Anderson] stole the gun." The court sustained a hearsay objection and instructed the jury to disregard the statement.
At trial, Elizabeth H. claimed she had never seen her brothers with a gun before. However, the prosecutor introduced her previously recorded interview with police. During the interview, Elizabeth H. said that around four months before the shooting she saw Hubbard and Anderson with a black gun at their apartment.
ii. Discussion
Anderson contends the evidence he possessed firearms prior to the shooting was inadmissible under Evidence Code section 352, and the admission of the evidence deprived him of due process and a fair trial. Since his counsel did not object to the admission of the evidence, Anderson argues his counsel was ineffective for failing to object. We find no ineffective assistance of counsel.
To establish entitlement to relief based upon a claim of ineffective assistance of counsel, the burden is on the defendant to show "(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288; Strickland v. Washington (1984) 466 U.S. 668, 694.) A defendant establishes a reasonable probability of a more favorable determination when he persuades a reviewing court that the result of his trial was fundamentally unfair or unreliable. (Strickland, supra, at p. 694.)
Where the record on appeal "sheds no light" on why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless there could be "no satisfactory explanation" for counsel's actions. (People v. Ledesma (2006) 39 Cal.4th 641, 746.) Where the record does not illuminate the basis for a challenged act or omission, a defendant's claim of ineffective assistance of counsel is more appropriately made in a petition for habeas corpus where there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner challenged. (Ibid.)
On the record before us, we cannot conclude that there could be no satisfactory explanation for Anderson's counsel's failure to object to the evidence of Anderson's alleged prior possession of firearms. Indeed, we do not agree that the admission of evidence regarding Anderson's previous possession of a firearm was improperly admitted. Anderson relies on People v. Riser (1956) 47 Cal.2d 566, disapproved of on other grounds by People v. Morse (1964) 60 Cal.2d 632, 637, footnote 2, 652 and People v. Chapman (1959) 52 Cal.2d 95, 98, for the proposition that "[w]hen the prosecution relies . . . on a specific type of weapon, it is error to admit evidence that other weapons were found in [the defendant's] possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (Id. at p. 577.) However, in this case, the prosecution introduced evidence showing only that the gun used in the shootings was a .45 caliber. And the evidence relating to a gun Anderson had or handled before the shooting did not rule out the possibility that this was the same gun that was used in the shooting. As in People v. Carpenter (1999) 21 Cal.4th 1016, 1052, the "evidence did not merely show that defendant was a person who possesses guns, but showed he possessed a gun that might have been the murder weapon . . . ." The evidence was relevant and admissible for purposes other than attempting to show that Anderson was the kind of person who has guns. Anderson's counsel had no reason to object to evidence that was legitimately relevant and likely to be admitted.
Moreover, even if the evidence was improperly admitted, Anderson's counsel may have had valid tactical reasons for declining to object. Leticia H.'s testimony was fairly weak in connecting Anderson to the gun. She described it as owned by someone else— Anderson's older brother's girlfriend's cousin's boyfriend—who was only visiting. She also indicated "they all had" the gun. Anderson's counsel could reasonably determine it was better to let this testimony pass than to call attention to it and risk giving it more importance that it deserved. Similarly, Elizabeth H. recanted her own statement to police at trial and testified she had not seen Anderson with a gun. Anderson's counsel could again reasonably have determined it was better to let this small piece of evidence go without drawing attention to it, especially given the likelihood the court would admit the evidence over a defense objection. (People v. Catlin (2001) 26 Cal.4th 81, 165 [the decision whether to object or seek an admonition regarding testimony is highly tactical and "depends upon counsel's evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony"].)
"[T]he mere failure to object rarely rises to a level implicating one's constitutional right to effective legal counsel." (People v. Dickey (2005) 35 Cal.4th 884, 914.) This case is no exception. We find no ineffective assistance of counsel.
C. The Trial Court's Admission of Evidence of Witness Intimidation Was Harmless
i. Background
Leticia H. was also an eyewitness to the shootings. At trial, she testified that she heard a gunshot and saw Hubbard with a gun. She saw Anderson and Miller with Hubbard. She heard four or five additional shots. She then saw Christian D. and George O. dragging Lawrence Hart away. On cross-examination, Leticia admitted that she originally told police Anderson was the shooter, but on redirect she indicated she was certain it was Hubbard she saw with a gun during the shooting.
On redirect, Leticia H. also testified that some time after the shooting, while she was crossing a street, the younger sister of Maya A., Hubbard and Anderson's older brother's girlfriend, drove past her and called her name. Leticia H. testified that Maya A.'s younger sister, along with others, "jumped" her because they did not want her to testify. The trial court sustained a defense objection and struck the portion of Leticia H.'s testimony describing why she was attacked. The prosecutor then asked Leticia H. why she believed she was beat up. The trial court overruled a defense objection, finding the matter went to Leticia H.'s credibility. Leticia H. testified: "Because as they—before they jumped me, that is when she said, 'You better not go to court,' 'Better not testify.' 'We gonna whip your woo, woo.' Just cussin' me out and tellin' me that it's gonna get his sister in trouble." Leticia H. reported there were five girls who attacked her. She knew only one of them—Maya A.'s younger sister.
As described above, the prosecutor also played excerpts from the recorded holding cell conversation between the defendants. At one point, Anderson said in the recording: "Snitch if you want to. Whatever. You know what happens to snitches. They can come to court on me if they want to. They know what happened to them." There was also the following exchange between Anderson and Hubbard:
"HUBBARD: Hey, I'm telling you, cuz. Hey. Hey. Bro, I'm gonna handle this shit. Don't trip. I'm gonna handle this shit. If I get out none of the niggers is coming to court. If I get out, I'm going to make sure -- I was just trying to say this you feel me -- I'll make sure that you get out and he get out.
"ANDERSON: I know _______. If they -- they hit me with something, man, I hope I get out _____ don't be straight, I'm going to get out and grind to the limit straight. If I get out. On everything.
"HUBBARD: If I get -- hey. Hey. Hey. Hey. Bro. If you get out, do the same."
The trial court instructed the jury with CALJIC No. 2.06: "If you find that a defendant attempted to suppress evidence against himself in any manner, such as by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
In his closing argument, the prosecutor, in describing the evidence of Anderson's guilt, told the jury:
"Another thing we can look at is the suppression of evidence. Was there an attempt or was there a statement regarding the intimidation of witnesses. That is common in gang cases. We heard witnesses get intimidated. We heard Leticia [H.] got beat up. She had to call Detective Biddle on the phone and make a police report because she got beat up by some people that were associated with the defendant. And don't come to court sort of thing. We know that's a problem in these types of cases and, in fact, happened in this case. [¶] What does Mr. Anderson say? He adopts that old gang saying, better not snitch. You better not come to court. They better not come to court. They know what will happen to them. Mr. Hubbard says if I get out of court, I'm going to make sure the witnesses don't come to court. If you get out, you do the same. [¶] So we have this statement from Mr. Anderson regarding witnesses better not come to court. If he didn't do anything wrong, what is he worried about? In fact, he should want witnesses to come to court but that is not what he says. He says witnesses better not come to court. They know what will happen to them."
ii. Discussion
In People v. Williams (1997) 16 Cal.4th 153, 200, our high court summarized the general principles regarding when evidence suggesting the defendant has intimidated a witness is admissible to prove consciousness of guilt: " ' " 'Generally, evidence of the attempt of third persons to suppress testimony is inadmissible against a defendant where the effort did not occur in his presence. [Citation.] However, if the defendant has authorized the attempt of the third person to suppress testimony, evidence of such conduct is admissible against the defendant.' " ' [Citations.] In [People v. Terry (1962) 57 Cal.2d 538, 566], we held that proof of a criminal defendant's 'mere opportunity' to authorize a third person to attempt to influence a witness 'has no value as circumstantial evidence' that the defendant did so."
We have found no evidence in the record suggesting Anderson authorized the attack on Leticia H. The only evidence relevant to Anderson's potential involvement in the Leticia H.'s beating was his ominous statement in the holding cell that "snitches" know what happens to them if they testify.
The trial court indicated it was admitting the evidence because it was relevant to Leticia H.'s credibility. Evidence " 'that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to [his] credibility and is well within the discretion of the court.' [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 220.) But here, there was no evidence that Leticia H. was afraid to testify or feared retaliation for testifying. Nor was there any indication that any inconsistencies between her testimony in court and her earlier statements to law enforcement were due to fear of retaliation. For example, Leticia H. originally told police she thought Anderson was the shooter; at trial, she was certain Hubbard was the shooter. But the People never contended Anderson was the shooter and never tried to establish that Leticia H.'s earlier statements were accurate, in contrast to her trial testimony.
However, even if the trial court erred in admitting evidence of the attack on Leticia H., we conclude the error was harmless. In an otherwise lengthy and complex trial, Leticia H.'s testimony about the attack was a short and minor moment. The evidence connecting Anderson to the beating was minimal. And although the prosecutor attempted to relate the beating to the theory that the case was gang related, the jury rejected this theory and found the gang enhancements not true as to Anderson, although they found them true as to Miller. Further, the jury was instructed that it should only consider an attempt to suppress evidence by Anderson as a circumstance showing consciousness of guilt if the jury found he did in fact attempt to suppress evidence. In addition, the jury was instructed that attempted suppression of evidence was not enough on its own to prove guilt and that it had to decide what weight and significance to give the evidence. It is not reasonably probable that the outcome of the trial would have been different had the trial court excluded Leticia H.'s testimony about being attacked. (People v. Nelson (2011) 51 Cal.4th 198, 214-215; People v. Weiss (1958) 50 Cal.2d 535, 554, superseded by statute on another ground as stated in People v. Griffin (1991) 235 Cal.App.3d 1740, 1746.)
D. The Trial Court Did Not Prejudicially Err in Failing to Define Assault
Anderson contends the trial court committed prejudicial error when it failed to define the term assault for the jury when instructing on the natural and probable consequences doctrine. We find the trial court's error was harmless.
i. Background
The trial court instructed the jury with CALJIC No. 3.02 on an aider and abettor's liability for natural and probable consequences, as follows:
"One who aids and abets another in the commission of a crime or crimes is not only guilty of those crimes but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [¶] In order to find the defendant guilty of the crimes of murder and attempted murder under this theory as charged in counts one through six, you must be satisfied beyond a reasonable doubt that: [¶] [1.] The crime of assault with a firearm, in violation of Penal Code section 245(a)(2), was committed; [¶] [2.] That the defendant aided and abetted that crime; [¶] [3.] That a co-principal in that crime committed the crimes of murder and attempted murder; and [¶] [4.] That the crimes of murder and attempted murder were a natural and probable consequence of the commission of the crime of assault with a firearm. [¶] In determining whether a consequence is natural and probable, you must apply an objective test, based not on what the defendant actually intended but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen."
The trial court also instructed the jury with CALJIC No. 9.01: "Assault—present ability to commit injury necessary," as follows: "The necessary element of an assault is that the person committing the assault have the present ability to apply physical force to the person of another. This means that at the time of the act which by its nature would probably and directly result in the application of physical force upon the person of another, the perpetrator of the act must have the physical means to accomplish that result. If there is this ability, present ability exists even if there is no injury."
The trial court also gave CALJIC No. 9.02: "Assault with a deadly weapon," as follows: "Section 245(a)(2) of the Penal Code is a crime. [¶] Every person who commits an assault on the person of another with a firearm is guilty of a violation of section 245(a)(2) of the Penal Code, a crime. [¶] A firearm includes a handgun. [¶] In order to prove this crime, each of the following elements must be proved: [¶] [1.] A person was assaulted; and [¶] [2.] The assault was committed with a firearm."
The trial court did not instruct the jury on the definition of assault.
The Use Note accompanying CALJIC No 9.02 provides that the court must also give CALJIC No. 9.00. CALJIC No. 9.00 states in relevant part: "In order to prove an assault, each of the following elements must be proved: [¶] 1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person; [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another. [¶] The word 'willfully' means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person. [¶] To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed [and, if so, the nature of the assault]."
In his closing argument, the prosecutor primarily argued Anderson, Hubbard, and Miller planned to shoot the members of the Brian M. group. He contended this was established by evidence indicating all three went into Hubbard and Anderson's bedroom and came out with a gun, they each got into a position to shoot, and they jointly fled from the scene. The prosecutor argued Anderson "knew of the unlawful purpose. He encouraged, facilitated the plan by involving his brother calling for him, 'Hey, 'cuz, hey 'cuz.' He then accompanies his brother and defendant Miller to the shooting location. Team effort, group effort."
However, the prosecutor also asserted a natural and probable consequences theory could apply:
"So if Mr. Anderson's story was, or if you said, wait a minute, I will go with he was aiding and abetting and his brother assaulting somebody with a firearm -- in other words, he will take the gun out there and point it at him. He is going to threaten them. He is going to try to scare them away with this gun. He is going to assault them with a firearm, but I didn't know he was going to shoot anybody. I didn't know my gang member brother was actually going to pull the trigger. Sorry. You are responsible for the natural and probable consequences of the conduct that you aid and abet. So if you help your brother go out there, you aided and abetted his assaulting somebody with a firearm, and during that assault with a firearm, during the pointing of the gun, he decides to go shoot and kill somebody and you think it's foreseeable that a gang member confronting another group of individuals after being verbally assaulted it's reasonably foreseeable that assault with a firearm, that shooting could turn into a murder, then he is responsible for it."
ii. Discussion
In People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman), our high court held that "when the prosecutor relies on the 'natural and probable consequences' doctrine, the trial court must identify and describe the target crimes that the defendant might have assisted or encouraged. An instruction identifying target crimes will assist the jury in determining whether the crime charged was a natural and probable consequence of some other criminal act. And an instruction describing the target crimes will eliminate the risk that the jury will engage in uninformed speculation with regard to what types of conduct are criminal." (Id. at p. 254.) When required, the trial court must give these instructions sua sponte. (Id. at p. 268.)
The parties agree the trial court should have defined "assault" for the jury. However, they disagree as to whether this error was prejudicial. We consider whether there was a " 'reasonable likelihood' that the jury misapplied the trial court's instructions on the 'natural and probable consequences' doctrine . . . ." (Prettyman, supra, 14 Cal.4th at p. 272.) We also consider whether it was reasonably probable that the trial's outcome would have been different in the absence of the trial court's instructional error. (Id. at p. 274.) We answer both questions in the negative.
Two factors in particular served to minimize the impact of the trial court's failure to define assault. First, unlike the trial court in Prettyman, the trial court in this case identified the alleged target offense and partially described it. The target offense identified was not simply assault, but was instead assault with a deadly weapon. This made it highly improbable that the jury would adopt a definition of assault that encompassed nothing more than a noncriminal exchange of words; the assault had to be assault with a firearm. Second, the court also gave CALJIC No. 9.01, which described the necessary element of assault that the person committing the crime have the present ability to apply physical force to the person of another. Although this instruction did not completely define assault, it conflicts with Anderson's theory, which is that the jury could have concluded Anderson aided and abetted the target crime—assault—by merely encouraging an argument between Hubbard or Miller and the crowd on the street, and nothing more.
We are not persuaded by Anderson's contention that the prosecutor's comments in his closing argument implied the jury could find Anderson guilty based on his act of engaging in a verbal confrontation or fleeing from gang members. In the portions of the closing argument Anderson cites to support his contention, the prosecutor told the jury that Anderson got Miller and Hubbard to "engage this group and get them involved in this potentially volatile situation," and that "after the verbal argument, they go inside into Anderson and Hubbard's bedroom and all three of them come out together and leave the apartment . . . the three of them were not back there planning, you know, their next outing together. . . . They go back into the bedroom, all three of them, and they come out and there is a loaded gun." Further, while discussing Anderson's "gang knowledge," the prosecutor argued it was important because it related to "the reasonableness of the response that he would expect by involving two gang members in this dispute." These comments did not suggest to the jury that they could find Anderson's engaging in a verbal attack sufficient to encourage or facilitate a target crime under the natural and probable consequences theory. In context, the prosecutor's statements supported his argument that Anderson aided and abetted an assault with a firearm.
Given the instructions the jury received identifying and partially describing a single target crime, there was no analytical room for the jury to engage in uninformed speculation about what types of conduct were criminal and constituted the target offense. Even without a definition of assault, we conclude it is not reasonably likely that the trial court's instructions caused the jury to misapply the law. (People v. Carrington (2009) 47 Cal.4th 145, 192.) We also find it was not reasonably probable that the trial's outcome would have been different in the absence of the trial court's instructional omission.
E. The Trial Court Did Not Err in Failing to Instruct that Premeditated Attempted Murder Was A Natural and Probable Consequence of Assault With a Firearm
As noted above, in the trial court's instruction on the natural and probable consequences doctrine, the jury was instructed that under that theory it must find attempted murder was a natural and probable consequence of the commission of the assault with a firearm. Anderson contends the jury should have been instructed that the doctrine would only apply if the jury found attempted premeditated murder was a natural and probable consequence of the assault with a firearm. We disagree.
Initially, we recognize that this issue is currently pending in our Supreme Court. (See People v. Favor (2010) 190 Cal.App.4th 770, review granted Mar. 16, 2011, S189317.) However, until directed otherwise, we choose to follow People v. Cummins (2005) 127 Cal.App.4th 667, 680 (Cummins) and People v. Lee (2003) 31 Cal.4th 613 (Lee), which indicate the instruction Anderson contends should have been given was not required.
Anderson's argument is based on the reasoning of People v. Hart (2009) 176 Cal.App.4th 662 (Hart). In Hart, an accomplice was convicted of premeditated attempted murder when his codefendant shot the owner of a liquor store during the course of their armed robbery. (Id. at p. 665.) The jury was given instructions that it could find the defendant guilty of attempted murder if it found that it was a natural and probable consequence of attempted robbery. On appeal, the accomplice argued that the instructions erroneously precluded the jury from finding him guilty of any lesser degree of murder. The Third District found that the instructions were insufficient. It held that the instructions failed to inform the jury that in order to find the accomplice guilty of attempted premeditated murder "it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery." (Id. at p. 673.) The evidence could have supported a finding that attempted unpremeditated murder was a natural and probable consequence of the attempted robbery, but not attempted premeditated murder.
The Hart court reasoned: "The trial court properly instructed the jury concerning premeditation and deliberation, as it relates to the attempted murder, stating, in essence, that it is a subjective state of mind. However, in determining whether the premeditation and deliberation element was a natural and probable consequence of the attempted murder, the jury does not look at the aider and abettor's subjective state of mind. Therefore, the general instruction concerning the premeditation and deliberation element of attempted murder did not properly inform the jury concerning its duty with respect to the natural and probable consequences doctrine." (Hart, supra, 176 Cal.App.4th at p. 673.) Hart concluded, given the evidence, that the defendant was prejudiced because the trial court "failed to inform the jury that it could convict [the defendant] of a lesser crime than [the perpetrator's] crime under the natural and probable consequences doctrine." (Id. at p. 674.)
However, in Cummins, Division One of this district found that the trial court did not have to specifically instruct the jury that it must find premeditated attempted murder was a natural and probable consequence of the target crime. Cummins found the accomplice in that case "was a willing and active participant in all the steps that led to the attempt on [the victim's] life." (Cummins, supra, 127 Cal.App.4th at p. 680.) The defendants had kidnapped the victim, taken him to the edge of a cliff, and then one of the defendants pushed him off. Cummins concluded that, "[a]lthough the evidence did not conclusively determine which defendant had physical contact with the victim when he was pushed," the accomplice's conduct made him "no less blameworthy than" the actual perpetrator. (Id. at pp. 680-681.) Unlike in Hart, the evidence in Cummins supported a finding that a greater degree of murder was foreseeable.
The court determined that an aider and abettor need not have acted with premeditation and deliberation in order to be convicted of attempted premeditated murder under the natural and probable consequences doctrine. (Cummins, supra, 127 Cal.App.4th at p. 680; see also Lee, supra, 31 Cal.4th at pp. 624-625.) The Cummins court found that when a jury is properly instructed on the elements of attempted premeditated murder and the natural and probable consequences doctrine, nothing more is necessary. The Cummins court therefore rejected the need for a Hart-type instruction.
The court further relied on Lee, in which the California Supreme Court determined a defendant could be convicted of premeditated attempted murder, even if he did not act with deliberation and premeditation. (Cummins, supra, 127 Cal.App.4th at p. 680; see also Lee, supra, 31 Cal.4th at pp. 624-625.) Although Lee did not involve the natural and probable consequences doctrine, the court noted that "where the natural-and-probable-consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy. In light of such a possibility, it would not have been irrational for the Legislature to limit section [Penal Code] 664(a) only to those attempted murderers who personally acted willfully and with deliberation and premeditation. But the Legislature has declined to do so." (Lee, at pp. 624-625; Cummins, at p. 680.) The Cummins court found no reason to depart from the Lee court's reasoning. Thus, the court in Cummins determined that because the jury was properly instructed on the elements of attempted premeditated murder, "[n]othing more was required." (Cummins, at p. 681.)
Here, as in Cummins, there was evidence that Anderson was a willing and active participant in the steps that led to the attempts on the lives of the assembled crowd. The jury was properly instructed on the elements of attempted premeditated murder, and, based on the evidence, found the attempts on the lives of the crowd were willful, deliberate, and premeditated. As in Cummins, we conclude nothing more was required. (See also People v. Curry (2007) 158 Cal.App.4th 766, 790-792.)
F. There Was No Error in Connection With the Kill Zone Theory
i. There Was Sufficient Evidence to Find Anderson Guilty of Murder and Attempted Murder Under a "Kill Zone" Theory
Anderson argues that the evidence at trial established there were only four shots fired during the incident and, as a result, the jury could not find a "kill zone" was created. We disagree.
In People v. Bland (2002) 28 Cal.4th 313 (Bland), our high court explained that a jury may find that a defendant who shoots at a group is guilty of attempted murder of everyone in the group based on a theory of concurrent intent, even if the defendant primarily targeted only one person in the group. The court adopted the explanation of a Maryland case:
" '[C]onsider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. The defendant's intent need not be transferred from A to B, because although the defendant's goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. . . .' [Citation.]" (Bland, supra, 28 Cal.4th at p. 330.)
Here, there was sufficient evidence to support the application of a kill zone theory. We disagree with Anderson's assertion that the evidence demonstrated that a total of only four shots were fired. In fact, witnesses testified they heard between two and five shots being fired after the initial shot. Thus, there was sufficient evidence for the jury to find that the defendants shot a "hail of bullets" and concurrently intended to kill everyone in the crowd.
Anderson's reliance on People v. Perez (2010) 50 Cal.4th 222 (Perez),is misplaced. In Perez, the defendant shot a single bullet at an assembled crowd of eight people. Our high court concluded these facts supported only one offense of attempted murder, not eight. The prosecutor in the case argued that when the defendant fired the single shot he did not intend to kill everyone in the group, but instead intended to "kill anybody." (Id. at p. 225.) The court held that "[o]n facts such as these, 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." (Ibid.)
In contrast to Perez, this was not a case where only a single shot was fired. Instead, Hubbard fired one shot, then Miller fired multiple additional shots at the assembled crowd. The volley of additional shots distinguishes this case from Perez and renders the kill zone analysis applicable. Anderson has not cited any authority for the proposition that the number of shots fired must equal the number of potential victims in order for a kill zone theory to apply. Perez does not stand for this proposition. We decline to adopt such an approach, particularly in light of the evidence in this case which, although conflicting, indicated that as many as six total shots were fired at a crowd of six people.
ii. No Prejudicial Instructional Error
Anderson further argues the trial court erred in instructing the jury with CALJIC No. 8.66.1, instead of CALCRIM No. 600. Anderson contends CALJIC No. 8.66.1 improperly refers to a "zone of risk," while CALCRIM No. 600 refers to a "zone of harm." We find no prejudicial error.
CALJIC No. 8.66.1, as given by the trial court, stated:
"A person who primarily intends to kill one person may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the kill zone. The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a kill zone, is an issue to be decided by you."
CALCRIM No. 600 states in relevant part:
"A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of ___, the People must prove that the defendant not only intended to kill ____ but also either intended to kill ____, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill ____ or intended to kill ______ by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of ____."
Anderson argues that CALJIC No. 8.66.1's use of the term "risk" rather than "harm" allowed the jury to conclude the shooter was guilty of attempted murder simply because he placed the victims in danger rather than intending to kill them. The language of the instruction does not support this argument. Even if the term "zone of risk" was less than clear, the remainder of the instruction explained the kill zone theory to the jury. The instruction states that concurrent intent means the perpetrator "intended to kill the primary victim by killing everyone in that victim's vicinity." This portion of the instruction clearly informs the jury that the perpetrator must intend to do more than endanger the other victims—he or she must intend to kill them. And the last sentence of the instruction tells the jury it must decide whether the defendant intended to kill the victim, either as a primary target or as someone within the kill zone. Thus, there is no reasonable likelihood that the jury would have misunderstood the instruction as Anderson suggests, or that it caused the jury to misapply the law. (People v. Snow (2003) 30 Cal.4th 43, 97-98.) Further, even if the use of "zone of risk" was error, we conclude it is not reasonably probable the trial's outcome would have been different if "zone of harm" had been used instead.
G. Counsel Was Not Ineffective for Failing to Object to Anderson's Sentence as Cruel and Unusual Punishment
Anderson argues his sentence of 15 years to life for crimes committed when he was 17 years old, was cruel and unusual punishment. He contends he received ineffective assistance of counsel because his attorney failed to object to the sentence on this basis. We conclude the sentence did not constitute cruel and unusual punishment, and his counsel was not ineffective for failing to object on that ground.
"Article I, section 17 of the California Constitution prohibits infliction of '[c]ruel or unusual punishment.' A sentence may violate this prohibition if ' "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." ' [Citation.] [¶] . . . Defendant must overcome a 'considerable burden' to show the sentence is disproportionate to his level of culpability. [Citation.] Therefore, '[f]indings of disproportionality have occurred with exquisite rarity in the case law.' [Citation.]" (People v. Em (2009) 171 Cal.App.4th 964, 972 (Em),citations omitted.)
The jury found Anderson guilty of second degree murder and five counts of attempted murder. Anderson primarily argues that his sentence is disproportionate because he was only minimally involved in the shootings. However, the jury did not take this view of the evidence, and instead found him culpable in both the murder and the attempted murders. These were serious crimes, one of which resulted in death. Moreover, as the court noted in Em, the defendant's age matters when a court considers whether a sentence is cruel or unusual punishment, but "[i]t is also manifestly true, however, that murder matters." (Em, supra, 171 Cal.App.4th at p. 976.)
As the People point out, numerous courts have upheld much lengthier sentences imposed on juveniles who committed murders. (See, e.g., Em, supra, 171 Cal.App.4th at pp. 971-977 [finding 50-years-to-life sentence imposed on juvenile under 16 not cruel and unusual punishment]; People v. Gonzales (2001) 87 Cal.App.4th 1, 17-18 [sentence of 50 years to life imposed on juvenile who was 14 at the time of the crime not cruel and unusual punishment]; People v. Thongvilay (1998) 62 Cal.App.4th 71, 88-89 [25-years-to-life sentence imposed on defendant who was 17 at the time of the felony murder not cruel and unusual punishment].) Similarly, courts have upheld lengthy sentences imposed upon defendants convicted on an aiding and abetting theory. (See, e.g., Gonzales, supra, at p. 18.)
Anderson relies on People v. Mendez (2010) 188 Cal.App.4th 47, to support his argument, but that case involved a sentence of 84 years to life imposed upon a defendant who was 16 at the time the offenses were committed. Following Graham v. Florida (2010) 560 U.S. __ , the court in Mendez concluded the sentence was a de facto term of life without the possibility of parole, and therefore unconstitutional. (Mendez, supra, at pp. 64, 68.) This case does not compare. Anderson will be eligible for parole after 15 years. He aided and abetted serious crimes, including a murder. We have no basis to conclude the 15-years-to-life sentence was disproportionate to his crimes and culpability. As such, we cannot find his counsel was ineffective for failing to object to the sentence on this basis.
II. Miller's Appeal
A. The Trial Court Did Not Err in Denying Miller's Request for a Continuance
Miller contends the trial court's denial of his motion for a continuance also denied him the ability to represent himself effectively and thus violated his Sixth and Fourteenth Amendment rights to represent himself. We find no error.
i. Background
In March 2009, Miller made a Marsden motion to discharge his appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).)The court denied the motion. Miller then asked to represent himself. The court asked Miller if he would be ready for trial in the next 29 days. Miller's counsel informed the court that additional discovery was being supplied by cocounsel and additional documents or interviews needed to be transcribed. Counsel indicated the discovery that Miller needed to review would probably be "about a foot thick." Miller said he would not be ready for trial in 29 days. The court stated it was denying the Faretta motion, but also gave Miller a written Faretta waiver form to complete. (Faretta v. California (1975) 422 U.S. 806 (Faretta).)A few hours later, Miller told the court he did not wish to represent himself and wanted to keep his appointed attorney. That same day, all three defendants sought continuances. The court denied all three requests.
In May 2009, Miller filed a handwritten Faretta motion. At a June 10, 2009 pretrial hearing, the court denied both Hubbard's and Anderson's motions for a continuance. The court then heard Miller's Faretta motion. The court asked Miller if he could be ready for trial in the next 15 days if granted pro. per. status. Miller said he could. He had completed a written waiver of his right to counsel. The court advised Miller that if he went pro. per., he would have limited access to the pro. per. module, and limited access to funds, books, and time in the pro. per. library. After giving Miller several additional advisements, the court added:
"All right. One last thing. You have no discovery on this case. There is probably a few hundred to maybe a thousand pages worth of discovery. All that needs to be redacted. It probably will not be delivered to you until a couple of days. So you are losing precious days here as we are counting down toward trial. Will you still be ready for trial within that time period?"Miller responded that he would. The court continued:
"Okay. Then what I'm going to do is the following: [¶] I am going to find that he is making an intelligent waiver of his Faretta rights. I am going to tentatively grant him pro per status. [¶] What that means is this: I am granting you pro per status, but if on the 12-of-15-day date you tell me, look, judge, although I said I could be ready, there are all these issues, I didn't get the discovery until such and such a date, whatnot, because of that I don't think I can go pro per or be ready as a pro per, at that point I'm simply going to have Mr. Harris proceed as your trial lawyer. So I'm tentatively granting you pro per status."The prosecutor delivered redacted discovery to Miller that same day.
The next proceeding was held on June 15, day 5 of 15. At the beginning of the hearing, the trial court indicated it would probably deem everyone ready for trial, but would hear arguments. The court informed Miller that the following week they would be picking the first of two, or maybe even three juries. The court reminded Miller that he was charged with murder and multiple counts of attempted murder and was facing a minimum of seven life terms. The court asked if Miller still wished to represent himself. Miller said yes. Hubbard's counsel informed the court he was not ready for trial due to various discovery issues and requested a continuance. The court questioned Hubbard's counsel extensively about the discovery issues and denied the request for a continuance, although it indicated it would reconsider the motion if certain discovery problems were not resolved.
Miller then announced that he was not ready for trial. The following colloquy ensued:
"DEFENDANT MILLER: Currently not ready because I ain't got all the discovery to go over it and the pro per --"THE COURT: You told me when I granted you the pro per status that you were ready. Right?
"DEFENDANT MILLER: Correct.
"THE COURT: So what is the hang up now?
"DEFENDANT MILLER: I still need to go over things.
"THE COURT: Why didn't you file a written [Penal Code section 1050 motion]?
"DEFENDANT MILLER: I ain't got access to the law library.
"THE COURT: I warned you at the beginning if you went pro per, you may not get all the access to the pro per library. [¶] I will overlook the written 1050 at this time. You see what a hard time I'm giving [Hubbard's counsel] about a continuance. I don't want to hear, I just need to read things, or, I don't have discovery. Give me specifics why are you not ready for trial? [¶] . . . [¶] . . . Mr. Miller, what is the issue? Why do you need a good cause continuance at this time?
"DEFENDANT MILLER: To go over it and I wrote some down.
"THE COURT: Mr. Miller, can I tell you something? Getting a continuance is probably -- arguing a continuance is a procedural matter. It is one of the easiest things to do. Although the judge may give an attorney a hard time about it, it is one of the easiest things to do. [¶] The record will note there are long pauses. And it seems like you are trying to find the words to express why you need a continuance. This is the very, very basic. We haven't even gotten into the evidentiary issues or the Penal Code section yet as far as the elements of the crime. You are facing multiple, multiple, multiple, multiple life terms. [¶] Again you have got a great lawyer. Are you sure you don't want a lawyer? You can't even articulate the reason for a continuance right now and it's taking up a lot of time. [¶] Are you sure you don't want a lawyer?
"DEFENDANT MILLER: Yes, I'm sure.
"THE COURT: Tell me why you are not ready.
"DEFENDANT MILLER: With the proper materials.
"THE COURT: Pardon me?
"DEFENDANT MILLER: The proper materials to file motions.
"THE COURT: What materials? I need specifics. What materials do you need?
"DEFENDANT MILLER: Paper to write. Paper to write the motion down. And understanding the Penal Codes much more. That is the reason I need access to the law library. And I'm short of something in the docket. I would like to get an investigator to go get a couple -- more information of --
"THE COURT: I need specifics.
"DEFENDANT MILLER: I haven't quite went over all of it.
"THE COURT: You have got two options at this point. I told you when I granted you pro per status, I will grant you the status if you were ready to start. You told me you were ready to start trial on that date. You are telling me now that it sounds like you are no where near being ready for trial. I'm not delaying this trial any longer. [¶] It's been a year and about a half now that this case -- it's that old. And I let everyone know from the beginning this case was going to trial. It is going to trial. [¶] I'm not going to grant you your continuance, not without any more specifics. You are speaking in broad, vague terms. You are telling me you are pretty sure that there are certain things you need your investigator to look into. Certain motions you think you may need to file. I need specific motions. I need specific issues. It seems like you can't furnish those. [¶] I will deny your good cause continuance. I don't believe there is good cause. That means we are starting trial. [¶] Now, you have the option. You can either still represent yourself and go to trial, because I'm not granting your continuance, or, two you can ask for your lawyer back. [¶] Do you want your lawyer back or do you want to go to trial? You are not getting a continuance."
Miller asked to have his lawyer reappointed. Miller's counsel joined Hubbard's counsel's motion for a continuance because of the same discovery issues. The court denied the request. Eventually, however, the court continued the trial due to additional discovery issues.
ii. Discussion
In Faretta, supra, 422 U.S. 806, the high court determined that a criminal defendant has a constitutional right to represent himself, so long as he knowingly and intelligently waives his right to the assistance of counsel. (Id. at pp. 835-836.) A Faretta motion that is timely, unequivocal, and voluntarily and knowingly made must be granted. (People v. Doolin (2009) 45 Cal.4th 390, 453.)
In this case, the trial court granted Miller's Faretta motion. But when Miller, now representing himself, announced he was not ready for trial, the trial court denied his motion for a continuance. Generally, a continuance may be granted only on a showing of good cause, and the trial court has broad discretion to grant or deny the request. (Pen. Code, § 1050, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1037 (Jenkins).)However, a defendant who has exercised his Faretta rights and is representing himself must be given a reasonable opportunity to prepare his defense. A court may abuse its discretion and violate the defendant's rights if it grants a Faretta motion shortly before trial but denies the defendant a timely request for a reasonable continuance to allow him to prepare his case. (People v. Clark (1992) 3 Cal.4th 41, 110 (Clark); People v. Maddox (1967) 67 Cal.2d 647, 652-653.)
Yet, a self-represented defendant does not have an absolute right to a continuance. The California Supreme Court has held that if a defendant makes a Faretta motion midtrial—or in other words, if the motion is untimely—the trial court may grant the motion on the condition the defendant agrees he will not seek a continuance or otherwise delay the proceedings. (Clark, supra, 3 Cal.4th at p. 110; accord, Jenkins, supra, 22 Cal.4th at p. 1039.) In addition, the trial court may deny a Faretta motion or a motion for a continuance if it determines the defendant is merely seeking to delay the proceedings.
In People v. Douglas (1995) 36 Cal.App.4th 1681, 1689 (Douglas),the court explained that "if a court grants a defendant's untimely Faretta request, it must also grant a reasonable continuance, if necessary, so that defendant may prepare for trial. [Citations.] However, if the court determines the defendant's request is merely a tactic designed to delay the trial, the court has the discretion to deny the continuance and require the defendant to proceed to trial as scheduled either with his counsel or in propria persona." In Douglas, the trial court determined the defendant requested a continuance to delay the proceedings and not because he needed to prepare a defense. (Douglas, at p. 1688.) The Court of Appeal concluded the trial court did not err in granting the defendant's Faretta motion on the condition that the trial proceed as scheduled, or in subsequently denying the defendant's request for a continuance. (Douglas, at p. 1689.) Similarly, in Jenkins, our high court found the trial court did not abuse its discretion in denying the defendant's request for a continuance based on the court's reasonable belief that the defendant sought to delay the proceedings in order to affect the jury composition or cause a mistrial. (Jenkins, supra, 22 Cal.4th at p. 1038.)
In Douglas, as in this case, the defendant proceeded to trial with his appointed attorney. (Douglas, supra, 36 Cal.App.4th at p. 1688.)
Although the trial court here did not explicitly find that Miller was requesting a continuance merely to delay the proceedings rather than to prepare his defense, we infer from the record that this was the trial court's concern. This was a reasonable belief. Miller first asked to represent himself in March 2009, after the court denied his Marsden motion. At that time, he told the court he would not be ready for trial in 29 days. He then quickly rescinded his self-representation request. Miller waited two months, then sought to represent himself again. When his motion was heard one month later, Miller told the court he would be ready to proceed to trial in the next 15 days, despite the court's warnings that the case was complex and there were significant amounts of discovery he would need to review. Five days later, Miller told the court he was not ready for trial. The court stated that it did not wish to delay the trial further. And, when the court questioned Miller to find out why he was not ready, Miller's answers were vague at best. His justifications for the continuance request included that he needed more time to understand the Penal Code, suggesting that he required an indefinite continuance. Under these circumstances, the trial court could reasonably determine Miller's continuance request was merely intended to delay, and deny the motion.
We note that after the trial was eventually continued for several months, Miller did not reassert his right to represent himself.
We disagree with Miller's characterization of the trial court's ruling as conditioning the grant of Miller's Faretta motion on the understanding that Miller would not seek a continuance. Admittedly, when granting the motion, the trial court said it was "tentatively" granting the motion, and told Miller that if he was not ready on the eve of trial, the court would reappoint his counsel. But even if this could be construed as setting a condition on the grant of the motion, the court did not follow through with its statements. It granted the motion. When Miller requested a continuance, the court did not deny it based on any agreement by Miller not to delay the proceedings. Instead, the court extensively inquired to determine if Miller had good cause for a continuance. Further, after determining Miller had not established good cause, the court did not revoke Miller's right to represent himself. The court simply gave Miller the option to take back his counsel. Miller took that option instead of continuing to represent himself without a continuance.
Miller relies almost entirely on United States v. Farias (9th Cir. 2010) 618 F.3d 1049, to support his arguments. In Farias, the Ninth Circuit Court of Appeals found the district court deprived the defendant of his Faretta right to meaningfully represent himself. The district court told the defendant that if he proceeded pro se, the court would not grant any additional time for him to prepare for a trial scheduled to start the next day. (Farias, at pp. 1054-1055.) However, the court of appeals expressly stated that the district court had not found the defendant's motion was made for purposes of delay, and there were no such circumstances apparent in the record. (Farias, at p. 1053.) Indeed, the court explained: "In concluding that the district court deprived Farias of his Faretta right to proceed pro se, we emphasize that our conclusion relies on the fact that the district court made no findings that the purpose of Farias's request was to delay the trial and that the record contains no evidence of such purpose. We express no opinion whether, after finding that a defendant seeks to proceed pro se for the purpose of delay, a district court may refuse to grant the defendant additional time to prepare." (Farias, at p. 1055.)
Here, the record contains evidence that Miller's continuance request was made for purposes of delay, and we infer that the trial court denied the request on this basis. We conclude the trial court's denial of Miller's motion for a continuance was not an abuse of discretion and did not violate his constitutional right to represent himself.
B. Substantial Evidence Supported the Gang Enhancements
Miller contends there was insufficient evidence to support a true finding on the gang enhancements. We disagree.
Under Penal Code section 186.22, subdivision (b)(1), a person convicted of a felony committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members," is properly subject to its additional punishment. (Miranda, supra, 192 Cal.App.4th at p. 411; People v. Margarejo (2008) 162 Cal.App.4th 102, 106, 108.)
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains 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. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
Miller argues there were no facts to support a finding that Miller's crimes were "gang-related," or, in other words, that there was insufficient evidence to demonstrate that the crimes were committed "for the benefit of, at the direction of, or in association with any criminal street gang." We disagree. There was evidence that Miller was an admitted gang member, as was Hubbard. The incident began when Anderson and Brian M. exchanged what one witness described as "gang slurs." Miller was not present during this exchange, however there was evidence that Anderson ran to the apartment where Hubbard and Miller were both present, all three went into a bedroom, then emerged with a gun. The jury could infer from this evidence that Anderson told Miller and Hubbard what had happened on the street. The gang expert testified about the importance of respect in gang culture and the importance within a gang of responding to a challenge or disrespectful act. The jury could infer from the evidence that Miller's actions in particular were for the benefit of the gang because they would protect, or enhance, the gang's reputation.
Miller contends no one knew that he and Hubbard were 49th Street Hustler Crips gang members, and they were not in the gang's neighborhood, thus their actions could not have benefitted the gang. These two facts are not dispositive. Although there was no evidence the crowd knew of Miller and Hubbard's specific gang, the crowd did know that Anderson had yelled out what sounded like a gang name, then recruited Miller and Hubbard to come to his assistance. Further, Hubbard and Anderson were not unknown in the neighborhood of the shooting. Leticia H. used to be Anderson's roommate, and Hubbard's for a short time. Hubbard and Anderson's family lived in the apartment where the incident took place. Hubbard and Anderson's sister was in a relationship with M.S., who was a close friend of Hart's family. When police arrived at the scene, someone in the crowd shouted, "Robert did it," "Robert and his friends did it." The jury could reasonably infer that even if the crowd and the neighborhood did not immediately know that the shooting was conducted by members of the 49th Street Hustler Crips gang, that Miller and Hubbard could believe that this information would become known after the incident. This inference was supported by the defendants' holding cell conversation, in which they discussed the supposed gang affiliation of Hart, the victim, and their concern that someone from a gang affiliated with Hart or Hart's family would retaliate against them.
Contrary to Miller's assertion, the jury was not required to rely on the gang expert's testimony alone to conclude Miller acted to benefit a gang. Instead, it could properly accept the expert's characterization of the evidence adduced at trial. (Albillar, supra, 51 Cal.4th at p. 62 ["Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of [Penal Code] section 186.22(b)(1)"].) The altercation began with an exchange of gang names. Miller and Hubbard were members of the same gang. After Anderson ran home and Hubbard emerged from the apartment, Brian M. continued to make challenging, and disrespectful, statements. Miller loaded a gun and gave it to Hubbard. Miller took the gun after Hubbard had shot and fired a number of additional shots, to "back up" Hubbard. By Miller's own admission, he was not shooting to protect Anderson, but instead to support Hubbard, his fellow gang member. There was expert testimony that gang members might take such actions to enhance the reputation of the gang. The jury could properly find, based on these facts and with the aid of the expert testimony, that Miller's crimes were committed to benefit a gang.
In addition, Miller and Hubbard relied on each others' cooperation in committing the charged crimes. (Albillar, supra, 51 Cal.4th at pp. 61-62.) Hubbard responded verbally to Brian M.'s challenges, but Miller loaded a gun and handed it to Hubbard. Then, after Hubbard shot Hart, Miller took the gun and fired more shots, to "back up" Hubbard. The jury could reasonably conclude that Miller committed these crimes in association with a criminal street gang. (Id. at pp. 61-62 [although defendants were related to each other and roommates, evidence supported finding that they came together as gang members to rape victim and therefore acted in association with gang].) And, as explained in People v. Villalobos (2006) 145 Cal.App.4th 310, 322, committing a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent required under Penal Code section 186.22.
Substantial evidence supported the jury's findings on the gang enhancements.
C. Kill Zone Theory
Miller joins Anderson's arguments asserting there was insufficient evidence to support a kill zone theory on the attempted murder counts, and that the jury was improperly instructed on the theory. For the reasons explained above in Anderson's appeal, we reject these arguments and find no basis for reversal.
DISPOSITION
The judgments are affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
GRIMES, J.