Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County, No. SCD184845, Frank A. Brown, Judge.
BENKE, ACTING P. J.
A jury convicted Robert Lamar Myers of two counts of first degree murder (Pen. Code, § 187, subd. (a)), three counts of attempted murder (§§ 664/187, subd. (a)), and two counts of discharging a firearm at an occupied vehicle (§ 246). With respect to each of these counts, the jury further found Myers was a principal in the offense and during the offense at least one principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)), at least one principal personally discharged a firearm (§ 12022.53, subds. (c), (e)(1), and at least one principal used a firearm and caused great bodily injury or death to another (§ 12022.53, subds. (d), (e)(1)). Additionally, the jury also found with respect to each count that Myers committed the offense for the benefit of a street gang (§ 186.22, subd. (b)(1)). The jury also returned special circumstance findings that Myers had committed multiple murders within the meaning of section 190.2, subdivision (a)(3), and the two murders were perpetrated by means of discharging a firearm from a motor vehicle within the meaning of section 190.2, subdivision (a)(21).
All further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Myers to two terms of life in prison without the possibility of parole on the murder counts and three consecutive terms of 21 years to life on the attempted murder counts. In addition, the court imposed consecutive weapon enhancements of 25 years to life on each murder and attempted murder count. The sentences on the remaining counts and enhancements were stayed pursuant to section 654.
Myers appeals, contending the trial court erred in admitting hearsay statements attributed to co-defendants, and admitting evidence of surreptitiously recorded statements made by Myers and a co-defendant. Myers also contends the court should have granted his motion to bifurcate trial of the gang enhancements, the court should not have instructed the jury on a conspiracy theory of criminal liability, and the cumulative effect of the purported errors rendered the trial fundamentally unfair. Myers claims the prison terms of life without the possibility of parole violate the constitutional prohibition against cruel and unusual punishment because he was a juvenile when the offenses occurred.
Myers was tried separately from his co-defendants.
FACTS
This case involves rival street gangs and three related shooting incidents that took place over a 22-hour period. One of the gangs, the Skyline Piru street gang, was active in the Skyline area of southeast San Diego and frequented the 1300 block of Gribble Street, Skyline Drive and Meadowbrook Drive. The gang was allied with the O'Farrell Park gang. The main rivals of the two gangs were the Lincoln Park and the Five Nine Brim gangs, which were allied with each other. Myers, whose moniker was "Baby Lunatic, " was a member of the Five Nine Brim gang.
August 13, 2004: The Gribble Street Shooting
On August 13, 2004, Charles Foster, a member of the Skyline Piru gang, and another Skyline Piru gang member were walking along the intersection of Lausanne Drive and Skyline Drive when they were approached by three black males in a white Ford Expedition. The male in the front passenger seat asked, "What's brackin?" which means "What's up?" Foster replied, "You know what's brackin, " and flashed his hand signal for the Skyline Piru gang. The front passenger responded by flashing the hand signal for the Lincoln Park gang. Foster challenged them to get out of the vehicle and fight. The front passenger said, "No. It ain't time yet."
After the Expedition drove away, Foster warned everyone he saw who was a Skyline Piru gang member to watch out for a white truck.
Foster called the Expedition a truck even though it was an SUV.
At approximately 8:00 that night, Myeshia Ziegler received a phone call from her boyfriend. He told her to watch out for a white Expedition with occupants that might be driving around shooting people in Skyline. At approximately, 11:30 p.m., Ziegler, Stephanie Robinson and others were in front of a neighbor's house on Gribble Street. When Ziegler and Robinson saw the white Expedition, they hid behind a vehicle in the driveway and yelled to others: "Get down, white Expedition." Charles Foster was down the street with other individuals in front of Darrell Flynt's house. Ziegler's brother Arthur, who was standing on the corner, saw the white SUV traveling west on Gribble Street. Its headlights were turned off. The vehicle was traveling slowly, but sped up as the windows were rolled down. Someone in the rear passenger seat flashed a Lincoln Park gang signal.
According to Robinson, there were three black males in the Expedition. The driver shot over the roof of the vehicle with his left hand over the driver's door. The rear passenger, who was behind the driver, sat on the rolled-down window and leaned over the top of the vehicle as he fired a gun. The front passenger also fired shots. Ziegler told police she saw two shooters.
Rosalie Wilkerson, who was inside her house, looked out her front window when she heard a woman's voice outside yell, "White Expedition! White Expedition!" Wilkerson saw black males firing handguns from the front passenger side seat and rear passenger side seat as well as an individual in the rear driver's side shooting over the top of the vehicle.
Shots from the Expedition were fired at Flynt's house. Foster was shot in his left ankle as he ran toward an opened garage door. Flynt told police that the left rear passenger leaned out and fired over the top of the Expedition. Flynt described the shooter as a black male wearing a white baseball cap, white do-rag and white T-shirt. Flynt said he saw five males in the Expedition. Foster saw two males on the passenger side of the Expedition-one was bald and the other was wearing a baseball cap with orange on it, which looked like an old Houston Astros hat. He recognized the bald passenger as the person who, earlier that day, spoke to him from the Expedition.
In the middle of the street near a speed bump, police found a tan-colored baseball cap with an "SD" logo. Police also found four shell casings from a.380 caliber gun and six casings from a.22 caliber gun. Additionally, a missile from a fired round was found, but it was too distorted to determine the caliber.
August 13, 2004: The Fashion Valley Shooting
On the night of August 13, five friends-Richard Wilson, Christopher Scott, Kenneth McKnight, Marcus Whitfield and Michael Canty-went to the Padre Gold to attend a "Freaky Friday" club-type event. Scott and Wilson arrived in Wilson's BMW 745. McKnight and Whitfield arrived in Whitfield's Lexus. Canty arrived by himself in a borrowed Mustang. Scott and Wilson went inside while the others stayed outside in the parking lot. McKnight spoke with two females he met outside. Later, the two females went over to a white Expedition parked on the other side of the lot.
When Scott and Wilson came back outside, they said the crowd inside the Padre Gold was too young. The five friends decided to go to the Gaslamp District. They agreed to give a ride to a girl who asked if they could drive her home. The three vehicles left in tandem, with the girl in Wilson's BMW.
After they dropped the girl off inside a Naval housing complex across the street from the Padre Gold, McKnight noticed a white Expedition behind them, but did not think much about it. McKnight was riding with Whitfield in the Lexus, which was the lead car as the three cars headed south on Freeway 163. The next car was Wilson's BMW with Scott. Canty followed them in the Mustang.
As they drove through the Fashion Valley area, McKnight and Whitfield heard a sound "like... a tire popping." McKnight looked back, but did not see the other two cars driven by his friends. There was no answer when McKnight called Wilson on his cell phone. Whitfield later called Canty and found that Canty was at UCSD Medical Center. Whitfield drove to the hospital and learned Canty was shot in the arm. Whitfield and McKnight then went back onto Freeway 163 to look for Scott and Wilson.
Scott, who was in the BMW, had heard two or three gunshots, and he asked Wilson if he heard anything. Wilson turned down the radio. Five or six shots were then fired at the BMW. Scott ducked under the glove box and saw that Wilson was lying over the center console. The car was still moving, and, after Scott unsuccessfully attempted to revive Wilson, he tried to stop the vehicle by ramming it toward the center divider. The car slid 597 feet along the barrier before coming to a stop. At that point Scott realized he had been shot in the back.
The California Highway Patrol was dispatched to the Fashion Valley scene at 12:40 a.m. on August 14, 2004. Three shell casings (9 millimeter) were found on the freeway. One casing was 261 feet from the resting point of the BMW, another one was 1, 944 feet from the resting spot and the other was 2, 087 feet from the resting point.
Paramedics arrived and transported Wilson and Scott to the hospital. Wilson died from a gun shot to the back of his head. Scott, who had been shot in his back and in his shoulder, underwent surgery and stayed in the hospital for a week. He used a breathing machine for three months. At the time of trial-four years later-one bullet remained in Scott's chest. He also had 30 staples in his chest and felt lingering back pains. He had not returned to work.
August 14, 2004: The Meadowbrook Drive Shooting
At about 9:00 p.m. on August 14, 2004, Alfred Lacy, Lee Smith, Tommy Reynolds and Aaron Moore played basketball in Skyline Park. Afterward, the four of them walked to the bus stop at the intersection of Skyline Drive and Meadowbrook Drive to catch a bus home. While they were waiting for a bus, a white Ford Expedition stopped at a red light at the intersection. Lacy had seen the Expedition several times before at an apartment complex on Potomac Street. When the light changed, the Expedition was driven away, but a couple of minutes later, the Expedition returned. The front seat passenger had moved toward the driver's side and was hanging out the driver's window. He positioned himself to shoot over the top of the vehicle and fired one shot from a handgun that he held with both hands. The bullet struck Smith in the abdomen, killing him. Lacy told police the shooter was wearing a white T-shirt. He also saw the color red inside the vehicle.
When police arrived, Lacy told them they should look for the white Expedition at the apartment complex on Potomac Street. Police Officer Paul Keffer heard the location broadcast on his radio and drove to the area of 6800 block of Potomac Street, where he observed a white Expedition traveling southbound. Keffer followed the Expedition to an apartment complex at 6700 Doriana Street. Before the Expedition came to a complete stop, the rear door on the driver's side opened and a black male, later identified as Dejon Satterwhite, exited and ran. After the vehicle stopped, the right front passenger exited and began walking away from the vehicle. Keffer, who had his gun drawn, yelled for the man to stop. The man, Robert (Ivory) Harris, complied. As the police helicopter and backup units arrived, Keffer handcuffed Harris. Other officers ordered the driver, Edward Thomas, out of Expedition and arrested him.
Thomas, Harris and Satterwhite, who is Thomas's half-brother, were members of the Five Nine Brim gang.
Myers, who was wearing a red sweatshirt, was sitting in the right rear passenger seat and appeared to be leaning over and putting something under the seat. Officers ordered him to put his hands up and get out of the Expedition. In one hand, Myers was carrying a bottle of brandy in a brown paper bag. In the other hand, he had a cigar. Ordered to drop the bottle, Myers took a big swig from it and threw it on the ground. After Myers mimicked police orders to raise his hands and turn around, police rushed him and tackled him to the ground.
On the floorboard of the back passenger seat and underneath Myers's seat, officers found a.22 caliber rifle. Police also located a silver 9 millimeter Ruger semi-automatic handgun underneath Myers's seat. They also found a box of ammunition, which contained 9 millimeter and.22 caliber rounds. At the shooting scene on Meadowbrook Drive, police found a.389 caliber cartridge.
When the Ford Expedition stopped on Doriana Street, Jimmine Johnson, who was Thomas's girlfriend at the time, and her friend, Kendra Brown, were passengers. Thomas had picked up Johnson and Brown at Brown's residence at about 9:30 p.m. They were planning to go to a party. Johnson and Brown entered the Expedition and sat between Satterwhite and Myers on the back seat. While Johnson and Brown were in the Expedition, Harris, sitting in the front passenger seat, waved a handgun in Thomas's face. He did so in a joking manner. Thomas told Harris to put the gun away. Later, someone noticed a police car was following them. When Satterwhite opened the door and ran, one of the other males remarked: "He should have at least taken one of the pistols with him." After Satterwhite ran, Harris passed a black handgun to Myers. Myers asked Johnson to hold the gun. He said the police would not search her because she was female. Johnson refused.
Lacy's Identifications
After the arrests on the night of August 14, the police drove Lacy to the apartment complex on Doriana Street, where a curbside lineup was conducted. Lacy identified Thomas as the shooter. Lacy also told officers that Myers had been in the Expedition. At trial, Lacy testified he identified Thomas at the lineup because he was the only one wearing a white T-shirt, and he did not recall telling police that Myers was in the Expedition. Furthermore, Lacy testified that he did not see Myers or a person wearing a hooded red sweatshirt in the Expedition and had never seen Myers before. Lacy admitted he did not want to testify as a "snitch" because it was unsafe to do so.
The Recorded Statements
After the arrests on August 14, while Myers and Harris were sitting in the back seat of a police car, their conversation was recorded. The tape also included statements Harris made to Thomas, who was in an adjacent police car. The tape, which was admitted at trial, was replete with gang references.
Flynt's Plea Bargain
Flynt, whose house on Gribble Street, was shot at on the evening of August 13, 2004, had a confrontation with Myers three years later while both were in a holding tank for criminal defendants in the downtown San Diego courthouse. Flynt, a Skyline Piru gang member whose moniker was "Tiny 12-gauge, " was told that Myers shot at his house the night Foster was injured. Flynt approached Myers and asked if he was the person who "shot at my house." Myers responded: "I don't know, I probably was." Flynt punched Myers and a fight ensued. Later, Flynt, who was facing a robbery charge, entered a plea agreement with the district attorney's office in which he was allowed to plead guilty to felony grand theft with a sentencing lid of three years eight months. His attorney would be allowed to argue in favor of probation even though Flynt already had been granted probation twice only to have his probation revoked in each instance. Had he been convicted of robbery, Flynt's prison exposure would have been nine years. Under the plea bargain, Flynt agreed to testify truthfully in Myers's s case; if the trial judge concluded Flynt did not testify truthfully, the plea bargain would be voided.
Trial Evidence
At trial, a forensic criminalist expressed the opinion that the six.22 caliber casings found at Gribble Street were fired from the.22 caliber rifle that police found in the Expedition. The criminalist also testified that the three casings found on Freeway 163 were fired from the 9 millimeter semi-automatic handgun found in the Expedition. Missiles recovered from the Mustang driven by Canty also were fired from the same 9 millimeter semi-automatic handgun. Police never recovered a.380 handgun they believed was used in some of the shootings.
DNA testing on the baseball cap found on Gribble Street showed that the DNA was a mixture from at least three, and possibly as many as seven, people. The predominant contributor to the DNA was Myers. Myers's fingerprints were lifted from the Expedition at the passenger side rear door window, the exterior of the passenger side rear door handle, and on the roof above the rear side passenger door.
Detective Jack Schaeffer of the Black Gangs Team of the San Diego Police Department's Gang Suppression Unit, testified that gang culture was primarily concerned with respect earned by committing violent crimes. One's status in a gang could be enhanced by committing violent crimes, especially against members of rival gangs. The detective said that members of the Five Nine Brim gang committed such crimes as murder, drive-by shootings, robberies, carjackings and selling drugs. In connection with the gang allegations, Schaeffer testified about three "predicate" crimes committed by Five Nine Brim gang members. Two of the crimes involved robberies and murders; and the third involved a gang fight between the Skyline Piru and O'Farrell Park gangs on one hand and the Five Nine Brim and Lincoln Park gangs on the other, in which a person was murdered and others were injured.
Schaeffer testified that the Gribble Street drive-by shooting was done for the benefit of the Five Nine Brim gang. He noted, among other things, that the location is in the middle of the Skyline Piru gang territory and multiple weapons were used. He also noted the manner in which the Expedition was driven down the street without lights and the fact that Foster, a member of the Skyline Piru gang, was injured. In concluding that the Freeway 163 shootings were committed for the benefit of the Five Nine Brim gang, the detective noted that Canty was a well-known O'Farrell Park gang member, and it is likely the Five Nine Brim gang members assumed those individuals associating with him that evening were members of Canty's gang as well. Shooting Canty-a rival gang member-would increase the status of the Five Nine Brim gang members, Schaeffer said. Schaeffer also noted that even if the people who were with Canty were not gang members, committing such a violent crime would increase the status of the Five Nine Brim gang. The detective testified the Meadowbrook Drive shooting was committed for the benefit of the gang because it was inside the territory of the Skyline Piru gang, and it was on a major street near a taco shop where gang members were likely to gather together. Even if the targets were not gang members, the Five Nine Brim gang members would get credit for committing such a violent crime in Skyline territory.
DISCUSSION
I
Admission of Hearsay Statements by Co-Defendants
Myers contends the trial court committed prejudicial error by admitting two hearsay statements made by the codefendants.
Thomas's Statement
During the direct examination of Kendra Brown, she testified that after the Expedition stopped at the apartment complex and she heard the police helicopter and saw "tons of cops, " she asked Thomas, "What's going on? What's going to happen to us?" Defense counsel objected that the next logical question-what did Thomas say?-would be inadmissible hearsay. The court excused the jury to discuss the issue with counsel. Outside the presence of the jury, Brown testified that Thomas's response to her question was: "We're going to jail and you and Jimmine are going home." Brown further testified that none of the males in the car said anything in response to Thomas's comment. Upon inquiry from the court, the prosecutor responded Thomas's statement was admissible because of two exceptions to the hearsay rule: (1) as a statement made against penal interest, and (2) as an adoptive admission. Before the court recessed for lunch, it indicated that it would allow Brown to testify before the jury regarding Thomas's response to her question on the ground it was made against penal interest.
After counsel returned to court following the lunch recess, and still outside the presence of jury, the court said it was having second thoughts about admitting Thomas's hearsay reply to Brown's question. In response, the prosecutor suggested a third exception to the hearsay rule, i.e., namely, a statement made by a co-conspirator, applied to Thomas's statement. The prosecutor argued there was circumstantial evidence of a conspiracy. The prosecutor and defense counsel also argued over whether there was evidence that Myers heard Thomas's statement.
The court ruled Thomas's response to Brown's question was admissible, but did not explicitly state which hearsay exception applied. However, the court instructed the jury pursuant to CALCRIM No. 357, which pertains to adoptive admissions.
CALCRIM No. 357 reads in part: "If you conclude that someone made a statement outside of court that (accused the defendant of the crime/[or] tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in (his/her) presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if (he/she) thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."
Harris's Statement
Also during Brown's direct examination, she was allowed to testify that after someone in the Expedition noticed a police car was following them, Harris, sitting in the front seat said: "We can blast on them." No one in the vehicle responded to Harris's remark.
Myers contends that Harris's comment was improperly admitted because it constituted hearsay and no hearsay exception was applicable.
Even if Harris's remarks were not properly admitted under an applicable exception to the hearsay rule, the error in admitting the remarks was harmless under any standard. (See People v. Hardy (1992) 2 Cal.4th 86, 147; Chapman v. California (1967) 386 U.S. 18.) Strong circumstantial evidence linked Myers to all three drive-by shootings. A hat with Myers's DNA was left on Gribble Street by an occupant of the Expedition. The close proximity in time between the Gribble Street and Freeway 163 shootings supported a reasonable inference that Myers participated in-or at least was in the Expedition during-the later shooting as well as during the Gribble Street shooting. As to the final drive-by shooting, Myers was in the Expedition with firearms when police stopped the vehicle shortly after Smith was shot to death on Meadowbrook Drive. On this record, we conclude the testimony about Thomas's "We're going to jail and you and Jimmine are going home" and Harris's "blast them" comments was harmless beyond a reasonable doubt.
We also reject Myers's contention that the court abused its discretion under Evidence Code section 352. The dangers of prejudice, confusion and undue time consumption did not substantially outweigh the probative value. In the context of Evidence Code section 352, " 'prejudicial' is not synonymous with 'damaging.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) " 'The "prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues...." ' " (Ibid.) The contents of Thomas's statement was not evidence "which uniquely tends to evoke an emotional bias against the defendant." (Ibid.)
Myers also contends that Thomas's statement did not qualify for admission under either the hearsay exception for statements made against penal interest (Evid. Code, § 1230) or the hearsay exception for statement made in furtherance of a conspiracy (Evid. Code, § 1223.) The Attorney General has not defended the admission of Thomas's statement on these grounds.
II
Admission of Taped Conversation of Myers and Co-Defendant in Police Car
Following their arrest at the apartment complex on Doriana Street, Myers and Harris were placed in a police car, which had a "Big Brother" recording machine. Almost immediately, Harris realized there was a recording machine in the vehicle and told Myers about it.
Myers contends the trial court committed prejudicial error by admitting evidence of this recorded conversation
At one point during the taped conversation, there was an exchange between Harris and Thomas, who sat in another police vehicle nearby.
Harris did most of the talking during the taped conversation, which is replete with gang references and offensive language, such as "fuck" and references to women as "bitches." There also are numerous portions of the taped conversation that are inaudible or unintelligible.
On the tape, Harris said he told police that he had nothing to do with the shooting, he had just been picked up and was getting a ride home. When Harris asked Myers what he told police, Myers replied: "I want to speak to my attorney." Myers also said: "We['re] going to be gone for a long time[, ] Blood."
Myers's trial counsel believed that the transcript of the taped conversation incorrectly attributed the following sentence to Myers rather than Harris: "We're going to be gone for a long time, Blood."
Harris told Myers that he was not going to take any deals because he did not do anything. Myers replied he did not do anything either, but added: "They are going to hang me[, ] homie. They are going to try to hang me with it." Later, Myers said: "But[, ] Blood[, ] if we just stick to script[, ] South."
After Harris related that he told police the rifle was the only firearm he saw in the Expedition, Myers said he had "fucked up" because "[a]ll the pistols were under my seat." Harris replied: "What the fuck you put them under your seat for[, ] Blood. You were supposed to put them away. That's why I handed them to you."
Over defense objection, the trial court admitted the taped conversation.
The jury was allowed to read an eight-page transcript of the taped conversation while the tape was played. The transcript was not admitted as an exhibit and did not go into the jury room.
Myers contends the trial court abused its discretion under Evidence Code section 352 by allowing the jury to hear the tape because it "was extremely prejudicial [as the tape] tended to evoke an emotional bias against appellant as an individual that far outweighed its probative value." Myers also contends the tape was likely to confuse and mislead the jury because it was difficult to hear portions of the tape, to accurately discern who was talking at times, and to determine what was meant by the speakers, who frequently used gang language. Myers argues that because of the difficulty in understanding the significance of portions that were hard to comprehend, the tape invited the jury to speculate.
The admissibility of evidence under Evidence Code section 352 is reviewed under the deferential abuse of discretion standard and will not be disturbed unless it manifestly constituted an abuse of discretion. (People v. Hall (1980) 112 Cal.App.3d 123, 127.) A tape recording may be admissible even if substantial portions of it are unintelligible. (Id. at p. 126; see also People v. Siripongs (1988) 45 Cal.3d 548, 573-574.)
"To be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness." (People v. Demery (1980) 104 Cal.App.3d 548, 559, overruled on another ground as recognized in Lucido v. Superior Court (1990) 51 Cal.3d 335, 362; People v. Miley (1984) 158 Cal.App.3d 25, 36 [tape recording containing unintelligible parts was not unduly prejudicial as admitted]; People v. Finch (1963) 216 Cal.App.2d 444, 454 [recordings admissible absent a showing that any statement was a misstatement or that material statements were missing].) "[A] partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape's relevance is destroyed." (People v. Polk (1996) 47 Cal.App.4th 944, 952.)
In People v. Siripongs, supra, 45 Cal.3d at pages 561 and 574, police taped the defendant's telephone conversation without his knowledge. Even though certain portions of the recording were unintelligible, the trial court held that the tape was admissible because the understandable portions demonstrated defendant's efforts to remove incriminating evidence from his home. The Supreme Court found no abuse of discretion in admitting the tapes. (Id. at p. 574.)
Here, notwithstanding unintelligible portions, the tape showed Harris's and Myers's attempts to come up with exculpatory responses to anticipated police questioning. The tape also was relevant to show Myers's involvement with the Five Nine Brims gang, to help explain why the three shootings were related and as proof of the gang benefit allegations. The trial court reviewed the recording and the transcript of the conversation and was aware of the inaudible, unintelligible portions, as well as those parts that were clearly intelligible and probative. The trial court properly ruled that the tapes were admissible after carefully balancing whether their prejudicial impact would outweigh their probative value. There was no abuse of discretion.
We do not agree with Myers's contention that the unintelligible portions of the tape left the jury to speculate as to the significance of what was being said and thereby base its verdicts on speculation and conjecture. The portions of the tape that were understandable established Myers's and Harris's attempts to get their story straight as well as Myers's involvement with the Five Nine Brims gang. "We decline to indulge in speculation as to what 'further evidence of culpability' the jury could have possibly imagined." (People v. Siripongs, supra, 45 Cal.3d at p. 574.)
Nor are we concerned that offensive language in the tape was unduly prejudicial. "Jurors today are not likely to be shocked by offensive language and any risk of prejudice here was outweighed... by the probative value of the evidence." (People v. Edelbacher (1989) 47 Cal.3d 983, 1009.)
As an alternative argument, Myers contends that if the court did not abuse its discretion in admitting the tape, it should have redacted Myers's statement that he had invoked his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights. The Attorney General argues that Myers has forfeited this claim because he did not request redaction of any portion of the tape below. (Evid. Code, § 353.) Nonetheless, in objecting to the tape, Myers's counsel pointed out: "[T]he first thing we hear is Mr. Myers saying he wants to have an attorney." Defense counsel's comment identified the problem and gave the court an opportunity to cure it. We deem counsel's comment sufficient to satisfy the requirement of Evidence Code section 353.
This refers to Myers's response to Harris's question about what Myers had told police: "I want to speak to my attorney."
However, we find no error in failing to redact the tape. Myers's statement on the tape when considered in context was simply a response to Harris's question about what he said to police. The prosecutor did not reference Myers's statement in a manner that violated Doyle v. Ohio (1976) 426 U.S. 610, 618, which held that an arrested person's invocation of his right to silence should not be used against him at trial. In closing argument, the prosecutor merely pointed out that Myers and Harris wanted to keep their story straight, which is the reason Harris asked Myers what he had told the police.
III
Denial of Motion to Bifurcate Trial of Gang Allegations
Myers contends the trial court committed prejudicial error by not bifurcating the trial of the gang allegations (§ 186.22, subd. (b)(1)). We review the trial court's ruling under the deferential abuse of discretion standard. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).)
Before trial, Myers filed a motion to bifurcate trial of the gang allegations, arguing the evidence to prove the allegations would be highly prejudicial and minimally probative to the charged offenses, and would deny him a fair trial. Myers noted the "predicate crimes" evidence required to prove the gang allegations was highly inflammatory. The prosecutor argued the gang evidence was necessary to let the jury know why the shooting occurred. With respect to the charged offenses, the prosecutor added the gang evidence was admissible to show identity, malice and premeditation. In denying Myers's motion to bifurcate trial of the gang allegations, the trial court found the gang evidence tended to show motive and premeditation.
Evidence of gang membership is often relevant to, and admissible regarding, the charged offense. "Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled and bifurcation would not be necessary. [Citation.]" (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) However, "[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself-for example, if some of it might be excluded under Evidence Code 352 as unduly prejudicial when no gang enhancement is charged-a court may still deny bifurcation." (Id. at p. 1050.) Accordingly, a trial court's discretion to deny a bifurcation motion is broader than its discretion to admit gang evidence when the gang allegation is not charged. (Ibid.) Joinder of a gang allegation and substantive charge is inappropriate only when the evidence admitted to prove the gang allegation is so minimally probative on the charged offense, and so inflammatory in comparison, that it threatens to sway the jury to convict regardless of actual guilt. (Id. at p. 1051.) The defendant has the burden of clearly establishing a substantial danger of prejudice requiring bifurcation. (Ibid.)
We discern no abuse of the trial court's discretion. Without the gang evidence, the jury would not have heard evidence to explain why the three drive-by shootings took place in a relatively short period of time. Detective Schaeffer's testimony offered an explanation for Five Nine Brim gang members shooting and killing people in a rival gang's territory. Charles Foster, who was shot on Gribble Street, was a member of Skyline Piru gang and earlier that day had challenged members of the Lincoln Park gang, which is allied with the Five Nine Brim gang. Michael Canty, a well-known member of the O'Farrell Park gang, which is allied with the Skyline Piru gang, was shot on Freeway 163 about an hour after the Gribble Street shootings. Although no Skyline Piru gang members or their allies were shot in the Meadowbrook Drive incident, the shooting took place in Skyline Piru territory, which would enhance the gang status of the Five Nine Brim gang members taking part. The gang evidence was highly probative on the issues of identity, intent and motive. Though prejudicial to a certain degree, evidence of Myers's membership in the Five Nine Brim gang and his gang's activities were "highly relevant to the prosecution's theory of how and why [the shootings occurred]." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370; see also People v. Williams (1997) 16 Cal.4th 153, 193 [gang evidence relevant to motive and identity].)
Schaeffer's testimony also was relevant to explain why some victims, such as Foster and Lacy, were fearful of being labeled a "snitch" and distanced themselves at trial from earlier identification of the Five Nine Brim gang members. The gang enhancement was "inextricably intertwined" with the charged offenses in that it assisted in establishing Myers's identity apart from the hat with his DNA left at the scene on Gribble Street, a motive for his crimes, and his requisite intent to commit his crimes. (Hernandez, supra, 33 Cal.4th at p. 1048.) In our view, none of the evidence offered to prove the gang allegation was so minimally probative on the charged offense, and "so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants' actual guilt." (Id. at p. 1051.) This includes the predicate offenses, which, as briefly outlined by Schaeffer, were no more inflammatory than the crimes charged in this case. There was no serious danger the jury would be tempted to punish Myers for other crimes committed by members of the Five Nine Brim gang.
Moreover, the jury demonstrated it did not accept the gang evidence uncritically; the verdicts demonstrate that the jury carefully weighed the evidence. The jury found the allegations that Myers personally and intentionally discharged a firearm causing great bodily injury or death were not true. The gang evidence was not so inflammatory or unduly prejudicial that it jeopardized the jury's objectivity or kept them from independently scrutinizing the evidence.
IV
Jury Instruction on Criminal Liability of Conspirators
Myers contends that as a matter of law uncharged conspiracy is not a valid theory of criminal liability in California, and, therefore, the trial court erred when it instructed the jury Myers could be found guilty on a theory of uncharged conspiracy. The contention is without merit.
In addition to instructing the jury that Myers could be found guilty of a crime as the direct perpetrator or as an aider and abettor (CALCRIM No. 400), the court instructed the jury there was a third theory of criminal liability pertinent to this case, namely conspiracy. The court then gave CALCRIM No. 416 as follows: "The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy.
"To prove that the defendant was a member of a conspiracy in this case, the People must prove that:
"1. The defendant intended to agree and did agree with one or more of the other coparticipants to commit Shooting at an Occupied Vehicle or Premeditated 1st Degree Murder. [¶]... [¶]
"3. The defendant and/or one of his coparticipants or all of them committed at least one of the following overt act[s] to accomplish Shooting at an Occupied Vehicle or Premeditated 1st Degree Murder; "[¶]... [¶]"
The prosecutor relied on all three theories of criminal liability. The prosecutor argued Myers's guilt for the murders of Wilson and Smith, the attempted murders of Foster, Scott and Canty and the three counts of shooting at an occupied vehicle during the Freeway 163 shootings was established under a conspiracy theory.
Criminal defendants may challenge instructions to the jury on appeal whether or not they objected to them at trial as long as the instructions affect their substantial rights. (§§ 1259, 1469; see People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.) Myers's claim is properly presented here. We review independently the propriety of instructing the jury on the conspiracy theory of criminal liability. (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
For more than a century, our Supreme Court has held that defendants may be convicted as principals to crimes in their role as conspirators. (See People v. Kauffman (1907) 152 Cal. 331; see also In re Hardy (2007) 41 Cal.4th 977.) "It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator." (People v. Belmontes (1988) 45 Cal.3d 744, 788, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In People v. Kauffman, supra, 152 Cal. 331, the defendant and six others, armed with guns, a bottle of nitroglycerin and burglary tools, planned to break into a safe at a cemetery. However, because there was an armed guard near the safe, the group decided against the burglary. On their way home, the group encountered a police officer and a gunfight ensued, in which the officer was killed. Although the defendant, who had been carrying the nitroglycerin, was unarmed and did not take part in the shooting, he was charged with and convicted of the officer's murder. (Id. at pp. 332-334.) In upholding the conviction, page 334, the high court observed: "There is no dispute about the rules of law governing the criminal liability of each of several parties engaging in an unlawful conspiracy or combination. An apt statement of them, abundantly supported by authority, is to be found in 8 Cyc. 641, in the following language: 'The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan....' " (Id. at p. 334.)
The reference to "8 Cyc. 641" in People v. Kauffman, supra, 152 Cal. at page 334, is a shorthand reference to a volume of a legal treatise, 8 Cyclopedia of Law & Procedure (1903) page 641. (See People v. Prettyman (1996) 14 Cal.4th 248, 261.)
Although Myers is highly critical of People v. Kauffman, the concept of the criminal liability of conspirators has persevered through the development of California jurisprudence. (See People v. Lapierre (1928) 205 Cal. 470; People v. Pike (1962) 58 Cal.2d 70; People v. Prieto (2003) 30 Cal.4th 226; In re Hardy, supra, 41 Cal.4th 977.)
Among other things, Myers argues that People v. Durham (1969) 70 Cal.2d 171182, called into doubt the notion that conspiracy was a valid theory of criminal liability set forth in People v. Kauffman, supra, 152 Cal. 331 by noting the earlier case merely indicated that evidence of conspiracy can support a defendant's liability as an aider and abettor. We are not persuaded. People v. Durham, supra, 70 Cal.2d 171 did not disapprove of the language in People v. Kauffman, supra, 152 Cal. at page 334, that criminal liability for a crime other than conspiracy itself may be predicated on conspiring to commit that crime. Moreover, "People v. Kauffman, supra, 152 Cal. 331, involved the liability of conspirators for substantive crimes in the course of a conspiracy, not the liability of aiders and abettors...." (People v. Prettyman, supra, 14 Cal.4th at p. 261.)
Myers largely criticizes conspiracy as a theory of criminal liability based on section 31, which defines "principals" in a crime. A principal is either the perpetrator of the crime or one who aids and abets the perpetrator. (§ 31.) There is no mention of conspirators in section 31. According to Myers, California Supreme Court decisions starting with People v. Kauffman, supra, 152 Cal. 331, which held that defendants may be convicted as principals to crimes in their role as conspirators, have ignored section 31's description of the categories of principals. Additionally, People v. Pike, supra, 58 Cal.2d 70 and In re Hardy, supra, 41 Cal.4th 977 expressly state conspirators are criminally liable as principals under section 31 without any explanation how this can be when the language of section 31 does not include conspirators.
Section 31 provides: "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed."
Myers argues our high court has acted beyond its powers by enlarging section 31 and the definition of principal by adding conspirators. In essence, Myers urges these California Supreme Court decisions are ultra vires because only the Legislature can define crimes in this state. "In California all crimes are statutory and there are no common law crimes." (In re Brown (1973) 9 Cal.3d 612, 624; see also § 6 ["No act... is criminal or punishable[ ] except as prescribed or authorized by this Code...."]) He argues that although the Legislature has established a substantive crime of conspiracy (§ 182), it has never made conspiracy a legal theory on which a conviction may be procured-that is, a valid theory of criminal liability. What Myers essentially is arguing is that these decisions improperly introduced a common-law theory of conspiracy liability from a legal treatise (see fn. 12, ante) into California law in derogation of section 31.
As an intermediate Court of Appeal, we are in no position to adopt Myers's arguments. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As we have noted, for a century, the California Supreme Court has viewed aiding and abetting liability and conspiracy liability as separate grounds for criminal liability regarding substantive crimes. Further, the Supreme Court recently declared without reservation that section 31 forms the basis for criminal liability based on conspiracy. (In re Hardy, supra, 41 Cal.4th at p. 1025 ["One who conspires with others to commit a felony is guilty as a principal. (§ 31.)"]) "Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) For these reasons, we are bound to reject Myers's claim that a conspiracy cannot form a basis for criminal liability of substantive crimes. Accordingly, we find the court did not err in instructing the jury pursuant to CALCRIM No. 416.
V
Claim of Cumulative Error
Myers contends that cumulative error requires reversal of his conviction because even if the errors alleged are not in themselves reversible, they are so cumulatively. We have assumed error only in the admission of Thomas's "We're going to jail" comment and Harris's "blast them" comments. For both of these assumed errors, we concluded there was no prejudice under any standard. Therefore, Myers has not demonstrated cumulative prejudice.
VI
Sentence of Life Imprisonment Without Possibility of Parole for a Minor
Myers, who was 17 years old when these crimes were committed, contends his sentence of life without the possibility of parole violated the ban against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution as interpreted by the United States Supreme Court in Roper v. Simmons (2005) 543 U.S. 551 (Roper). The contention is without merit.
In Roper, supra, 543 U.S. at pages 568 to 575, the Court held the Eighth Amendment prohibited imposition of the death penalty for crimes committed when the offender was under 18. In doing so, the high court overruled its prior decision in Stanford v. Kentucky (1989) 492 U.S. 361, which had held that the Eighth Amendment did not ban the execution of juvenile offenders older than 15 years but under 18 years. (Roper, supra, 543 U.S. at p. 562.) Recognizing that "the death penalty is the most severe punishment" (id. at p. 568), the Roper court concluded "juvenile offenders cannot with reliability be classified among the worst offenders" because of three primary differences between juveniles and adults. (Id. at p. 569.) First, juveniles are less mature and responsible than adults and act more recklessly. (Ibid.) Second, juveniles are more susceptible to negative influences and pressures because they have less control over their immediate surroundings. (Ibid.) Third, a juvenile's character "is not as well formed as that of an adult." (Id. at p. 570.) The Roper court continued: "These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible conduct is not as morally reprehensible as that of an adult.' [Citation.] Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. [Citation.] The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." (Ibid.)
The Roper court also noted that since the decision in Stanford "evidence of national consensus against the death penalty for juveniles" (Roper, supra, 543 U.S. at p. 564) had developed sufficient for the Supreme Court to conclude "that today our society views juveniles... as 'categorically less culpable than the average criminal.' " (Id. at p. 567.) Thirty states prohibit the death penalty for juveniles, including 12 that do not impose the death penalty. (Id. at p. 564.) Of those 30 states, five had eliminated the death penalty for juveniles either through legislation or by judicial decision after the Stanford decision. (Id. at p. 565.)
The reasoning of the Roper court does not apply to the present case. That case was a death penalty case; this case is not because California does not allow the death penalty for juveniles. (§ 190.5, subd. (a).) Although a term of life imprisonment without the possibility of parole is a severe punishment, "the penalty of death is different in kind from any other punishment imposed under our system of criminal justice." (Gregg v. Georgia (1976) 428 U.S. 153, 188.) In Roper, the United States Supreme Court affirmed the judgment of the Missouri Supreme Court, which had set aside Simmons's death sentence and resentenced him to life imprisonment without eligibility for parole or release except by act of the governor. (Roper, supra, 543 U.S. at pp. 559-560.) There is no indication in the Roper opinion that a sentence of life in prison without the possibility of parole is unconstitutionally disproportionate when applied to juveniles.
Myers has not provided any authority extending the reasoning of the Roper court to life without the possibility of parole sentences for juveniles. Other states have rejected similar challenges based on Roper. (State v. Rideout (Vt. 2007) 933 A.2d 706; State v. Craig (La.App.2006) 944 So.2d 660, 662.) We reject it as well.
VII
Parole Revocation Fine
Myers contends the trial court erred by imposing a $5,000 parole revocation fine pursuant to section 1202.45. Imposition of the fine is improper because Myers's two life without the possibility of parole sentences eliminate the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1179, 1185-1186.) The Attorney General agrees. We direct the trial court to amend the abstract of judgment to strike the fine.
DISPOSITION
The court is directed to amend the abstract of judgment to strike the $5,000 parole revocation fine (§ 1202.45) and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
WE CONCUR: NARES, J., AARON, J.