Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA289937, Robert J. Perry, Judge.
Ronald White, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Joe Edward Nash appeals from the judgment entered following a jury trial which resulted in his conviction of two counts of attempted willful, deliberate, premeditated murder (Pen. Code, §§ 664/187), shooting at an inhabited dwelling (§ 246) and two counts of shooting from a motor vehicle (§ 12034, subd. (c)), each of which was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1), and during each of which a principal personally discharged a firearm proximately causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)). The trial court sentenced Nash to prison for two consecutive terms of life with the possibility of parole, plus two consecutive terms of 25 years to life. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003)113 Cal.App.4th 1299, 1303-1304), the evidence established that in August of 2004, Yusef Shakur Ali Brooks (Brooks) and a companion went to an area near the intersection of Budlong and 90th Street to purchase drugs. As Brooks and his companion walked toward the “weed spot,” Nash got out of a car, approached Brooks and told him to take off his New York Yankee’s hat. When Brooks ignored Nash, Nash became angry and told Brooks that he was from the “8-Trey,” or “Gangsters,” gang and that the area was his “hood.” Nash then told Brooks that, the next time he saw Brooks, it was “going to be cracking,” a comment Brooks perceived as a threat. Brooks stated that, at the time of the incident, he was unaware of the fact that his hat was considered a “Rolling 60’s” gang hat.
On May 19, 2005, Brooks and three or four friends were inside a house located at 2206 West 73rd Street in Los Angeles. Brooks’s friend and “homeboy,” Mike De Pillars (De Pillars), was sitting in his wheel chair outside the house, on the driveway. Although Brooks denied being a member of a gang, he socialized with gang members, including De Pillars. De Pillars is a member of the “Rolling 60’s.” His gang moniker is “Cacci Blue” or “Baby Cacci.”
At approximately 3:40 p.m., Brooks was sitting just inside the open front door. He looked out through the screen door and saw two men pull up in a green, two-door “Chevy.” As the two men appeared to start a conversation with De Pillars, Brooks stood up to get a better view and heard the passenger in the car say to De Pillars, “ ‘8-Trey Hoover.’ ” The passenger then reached across the car and, as the driver leaned back, fired three or four shots out the driver’s side window with a black revolver. One of the shots hit Brooks in the leg, just above his knee. Another shot made a hole in the screen door, but did not hit Brooks. De Pillars, who quickly left the scene, escaped unharmed.
Brooks recognized the driver of the car as Nash, who he knew as “Little Ant” from the “8-Trey Gangster Crips” gang. When police officers arrived at the residence shortly after the shooting, Brooks told them that he “immediately recognized the driver of the vehicle as Little Ant from the 8-Trey Gangsters.” Then, as he was being transported to the hospital in an ambulance, Brooks told a detective that “Little Ant” from the “8-Trey Gangster Crips” had been driving the green car. At the hospital, a police officer showed Brooks a six-pack photographic line-up. Brooks identified a photograph of Nash as that of the man who had been driving the green Chevy. Brooks then wrote the following comment: “About a year ago I was walking down Budlong and this dude was in a green Rivera, told me to take my hat off. I’m like, nah, then him and his boys jumped out and like tried to get at me. I ran into my boy house and he out there like, you know, woofing. My boy later told me that the dude name was Little Ant from E.T.G. [¶] I seen the same dude today driving the green Monte Carlo, the same car I was shot out of.”
Prior to trial, Brooks identified Nash as the driver of the car. At trial, Brooks was more equivocal. He testified he only “got a quick look at [the driver],” and stated, “I don’t really know for certain – I can’t be 100 percent sure that he was there now that I’m seeing him again. . . . I ain’t gonna say it wasn’t him. But I can’t just say it was him like that because I only met the dude one time. [¶] [But] [i]n my heart that’s what I thought at the time.”
On the afternoon of May 19, 2005, Los Angeles Police Officer William Rich (Rich) and his partner responded to a call directing them to the house at 2206 West 73rd Street. Brooks told Rich that the driver of the car had been Nash, who Brooks knew as “Little Ant from 8-Trey Gangsters.” Rich had previously been in contact with Nash on at least three occasions. On at least one occasion, Nash had informed Rich that he, Nash, was an “8-Trey Gangster” and that his gang moniker was “Little Ant Dog.” Rich had observed Nash driving a two door Chevy Monte Carlo and had seen him with other 8-Trey Gangster members in areas known as “common gathering point[s]” for the gang.
Los Angeles Police Officer Aaron Algren (Algren) is assigned to the 77th Gang Enforcement Detail and is familiar with the street gang known as the “Rolling 60’s.” The gang has between 2,000 and 3,000 members and it’s “territory” covers a fairly large area in South Central Los Angeles. The house at 2206 West 73rd Street is within Rolling 60’s territory and Algren had contacted members of the Rolling 60’s at that address before the May 19th shooting. Algren had “been to that house approximately ten different times. [He had] spoken with Rolling 60’s [members] who hung out at that location [and] assisted other officers who ha[d] arrested Rolling 60’s gang members for firearms possession [there].”
Algren explained that the Rolling 60’s and the 8-Trey Gangsters are “mortal enemies.” The gangs engage in shootings “on a constant basis,” which “has resulted in numerous murders of [members of the] gang[s] and innocent members of the community.” Algren explained that “it’s always basically a green light between 60’s and 8-Trey Gangsters, meaning you shoot on sight . . . .”
Algren was familiar with De Pillars; he had been in contact with De Pillars on between 20 and 30 occasions at various gang locations. During their numerous conversations, De Pillars admitted his affiliation with the Rolling 60’s gang.
Algren was also of the opinion Brooks is a member of the Rolling 60’s gang. Algren based his belief on the areas in which he had stopped Brooks and the people he had seen Brooks “hanging out with, namely other Rolling 60’s gang members.” Algren had also seen Brooks wearing Rolling 60’s attire, including a powder blue shirt and shoes and a New York Yankees hat, all articles of clothing associated with the gang.
Los Angeles Police Officer Richard Mendoza (Mendoza) is an expert on the 8-Trey Gangster Crips. The officer considers the gang to be “extremely violent and territorial.” In addition, Mendoza stated that, in his conversations with members of the 8-Trey Gangster Crips he had “come to understand that the 8-Trey Gangster Crips and the Rolling 60 Neighborhood Crips . . . have a general hatred for each other.” Mendoza continued, “There’s several different crimes that I’ve investigated or made arrests involving the two different gangs. Constant assaults [are] occurring . . . back and forth between the two gangs, even murder.”
With regard to criminal street gangs in general, Mendoza was of the opinion that, “basically[,] their goal is to eliminate their enemies. . . .” A gang member may achieve “ultimate status and respect within [the] gang” by murdering a member of an enemy gang.
Mendoza had been in contact with Nash on a number of occasions before the May 19th shooting. During at least one contact, Nash admitted he was “an active member of the 8-Trey Gangster Crips” and that his moniker was “Little Ant Dog.” On several occasions, Mendoza had seen Nash driving a green Chevy Monte Carlo. Approximately three months before the May 19th shooting, Mendoza stopped Nash as he was driving the green car. During the encounter, Nash again admitted membership in the 8-Trey Gangster Crips. Based on his contacts with Nash, Nash’s admissions that he belonged to the gang, his gang tattoos, and the gang attire Mendoza had seen him wear, Mendoza was of the opinion Nash is a member of the 8-Trey Gangster Crips.
Mendoza believed a shooting such as the one which occurred on May 19, 2005, would have been for the benefit of a criminal street gang. He based his opinion on the fact that “two people from the same gang [went] to a rival gang area [to] try to shoot or kill one of their enemies [and] prior to . . . [the] shooting, they yell[ed] out their gang [name].” The shooting also benefited the gang. Mendoza stated, “As I said, gangs are extremely territorial. The way they operate is off [of] fear [and] intimidation within the community and rival gangs. By shooting at rival gang members [within the rival gang’s territory,] it shows their rivals . . . that their gang is a force to be reckoned with . . . .” In addition, the shooting benefits the shooters in that it raises their status within the gang; it shows their “personal level of commitment to the gang life . . . .” Finally, a shooting contributes to the ultimate goal of eliminating the gang’s enemies. Mendoza concluded, “By eliminating the enemy[,] you are able to operate freely in doing a number of things, without worrying about the enemy coming in your area to shoot you.”
From a photographic lineup, Brooks had identified a man named Derek Boston (Boston) as the actual shooter. According to the officer who showed Brooks the photographic lineup, Boston is reputed to be a member of the 8-Trey Gangster Crips. Although Brooks identified the photograph of Boston fairly quickly, Brooks stated he was not “[one] hundred percent positive . . . who the shooter was.”
2. Procedural History.
At proceedings held on May 12, 2006, the trial court sentenced Nash to life with the possibility of parole for his conviction of the willful, deliberate, premeditated attempted murder of Brooks as alleged in count one of the information. For a principal’s discharge of a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)), the court imposed a consecutive term of 25 years to life in prison. The trial court stayed imposition of sentence as to the allegations Nash or a principal had used or intentionally discharged a firearm in violation of section 12022.53, subdivisions (b) and (c).
As to count two, the willful, deliberate, premeditated, attempted murder of De Pillars, the trial court imposed a consecutive term of life with the possibility of parole. For a principal’s discharge of a firearm causing great bodily injury to Brooks (§ 12022.53, subds. (d) & (e)), the court imposed a consecutive term of 25 years to life in prison. The trial court again stayed imposition of sentence as to the allegations Nash or a principal had used or intentionally discharged a firearm in violation of section 12022.53, subdivisions (b) and (c).
The trial court “stayed” imposition of sentence on all “remaining charges” and allegations. In total, Nash was sentenced to prison for “life plus twenty-five years to life, plus a consecutive life, plus twenty-five years to life.”
Nash filed a timely notice of appeal on June 14, 2006.
CONTENTIONS
Nash contends: (1) there is insufficient evidence to support the jury’s findings that he was the driver of the car from which the shots were fired, that the shootings were committed by gang members for the benefit of a criminal street gang, and that he or the shooter intended to kill Brooks; (2) the trial court erred in allowing the admission of improper “expert testimony;” (3) the admission of evidence regarding the prior encounter between him and Brooks was improper in that it violated section 1101 of the Evidence Code and the evidence was more prejudicial than probative; (4) the “judgment of guilt [as] to count one should be reversed because the trial court erroneously instructed the jury on a ‘kill zone’ theory” of liability; (5) imposition of the section 12022.53, subdivision (d) enhancement with regard to count two was improper because the victim, De Pillars, did not sustain great bodily injury; and (6) “cumulative error requires reversal.”
DISCUSSION
1. Substantial evidence supports the jury’s findings Nash was the driver of the car, that the crimes were committed by gang members for the benefit of a criminal street gang, and that Nash and the shooter intended to kill Brooks.
a. Sufficiency of the evidence.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]. [¶] . . . ‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) “The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation] . . . . An appellate court must accept logical inferences that the jury might have drawn from [such] evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) In addition, “[a] single witness’s uncorroborated testimony, unless physically impossible or inherently improbable, is sufficient to sustain a conviction.” (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.) Accordingly, “ ‘ “[r]eversal . . . is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” ’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
b. Substantial evidence supports the finding Nash was the driver of the car.
Nash contends Brooks’s identification of him as the driver of the vehicle used in the shooting was inherently unreliable. He asserts Brooks was approximately 25 to 30 feet away from the car and his vision was obstructed by the screen door. In addition, Brooks testified he only “got a quick look at [the driver.]” Finally, Nash indicates, although Brooks identified him as the driver before trial, during trial Brooks expressed uncertainty regarding his prior identifications. Brooks testified he did not “really know for certain” and could not be “100 percent sure” that Nash was the driver.
Although Brooks failed to positively identify Nash at trial, he identified him as the driver of the car on a number of occasions prior to trial. When police officers arrived at the residence shortly after the shooting, Brooks told them that he “immediately recognized the driver of the vehicle as [Nash, or] Little Ant from the 8-Trey Gangsters.” As he was being transported to the hospital, Brooks told a detective that “Little Ant” from the “8-Trey Gangster Crips” had been driving the green car. When a police officer showed Brooks a six-pack photographic lineup, Brooks identified a photograph of Nash as that of the man who had been driving the car. Brooks wrote a statement indicating he had been involved in an altercation with Nash approximately one year earlier and that, on that occasion, Nash had been driving the same green car from which the shooter had fired shots at him during the May 19, 2005, incident.
Although Brooks was equivocal in his identification of Nash at trial, the prosecution offered evidence he had a motive for qualifying his prior statements. Officer Mendoza, a gang expert, testified that by “snitching,” or testifying against a gang member, one is likely to expose himself to harm. Mendoza stated, “[I]f I’m a respected gang, like the 8-Trey Gangsters and I have a member of my gang s[n]itching or testifying against [a] rival, . . ., we’re going to eliminate that person. Because even though they’re testifying against our enemies, we don’t want [to show any] sign of weakness within our gang. So we just have our own take care of that person. Absolutely you do not snitch against anybody.” From this evidence, a reasonable jury could have concluded that Brooks was telling the truth when he made his out-of-court statements to police officers identifying Nash as the driver of the green car and that his equivocal testimony at trial was given “for gang-related reasons.” (People v. Cuevas (1995) 12 Cal.4th 252, 277.)
c. Substantial evidence supports the finding the shooting was committed by gang members for the benefit of a criminal street gang.
Nash initially argues there is insufficient evidence the perpetrators and the victims of the shootings were gang members. Nash further contends the People’s theory, that the shootings were carried out by members of the 8-Trey Gangster Crips because that gang and the Rolling 60’s are “rivals,” is not supported by the evidence. In particular, Nash asserts the statement made by the shooter, that he was an “ ‘8-Trey Hoover,’ ” not only referred to a gang other than the 8-Trey Gangsters, but amounted to inadmissible hearsay.
Contrary to Nash’s assertion, substantial evidence supports a finding both Brooks and De Pillars were members of the Rolling 60’s gang. Brooks testified De Pillars was a member of the Rolling 60’s and that his gang moniker was “Cacci Blue” or “Baby Cacci.” Officer Algren testified he had been in contact with De Pillars on between 20 and 30 occasions at various gang locations and that, during their conversations, De Pillars had admitted being a member of the Rolling 60’s gang. As to Brooks, although he denied being a member of a gang, Officer Algren testified he was of the opinion Brooks was a member of the Rolling 60’s. Algren based this belief on the areas in which he had stopped Brooks and the people he had seen Brooks “hanging out with, namely other Rolling 60’s gang members.” Algren had also seen Brooks wearing Rolling 60’s clothing, including a powder blue shirt and shoes and a New York Yankees hat. From this evidence, the jury could reasonably conclude that both De Pillars and Brooks were members of the Rolling 60’s gang. (People v. Guerra, supra, 37 Cal.4th at p. 1129 [“We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”].)
There is also substantial evidence to show that Nash and the shooter, Boston, were members of the 8-Trey Gangster Crips. Immediately after the shooting, Brooks told a police officer that the driver of the green car had been Nash, who Brooks knew as “Little Ant from 8-Trey Gangsters.” The officer, Rich, had previously been in contact with Nash who had informed the officer that he, Nash, was a member of the 8-Trey Gangsters and that his moniker was Little Ant Dog. Rich had observed Nash driving a Chevy Monte Carlo and had seen him in areas known as “common gathering point[s]” for the gang. Officer Mendoza had also been in contact with Nash on a number of occasions prior to the May 19th shooting. On at least one occasion Nash, who has gang tattoos and was wearing gang attire, had admitted to being a member of the 8-Trey Gangsters and stated that his moniker was “Little Ant Dog.” With regard to Boston, there was evidence he was reputed to be a member of the 8-Trey Gangster Crips. From this evidence, the jury could reasonably conclude that both Nash and Boston were gang members. (See People v. Guerra, supra, 37 Cal.4th at p. 1129.)
Nash argues his and Boston’s gang affiliation was shown by inadmissible hearsay. He refers to the following colloquy: “[The Prosecutor:] And was [the car] stopped in the middle of the street? [¶] [Brooks:] Yeah, for like a brief second. Like maybe no more than three, four seconds, maybe. Maybe five. [¶] [The Prosecutor:] During these seconds did you hear anybody inside of that green car say anything? [¶] [Defense Counsel:] Objection, calls for hearsay. [¶] [Brooks:] Yeah, I seen the shooter. [¶] [The Court:] Overruled. [¶] [Brooks:] I heard the shooter said something like, you know what I’m saying, tell your homeboy something. It’s 8-Trey Hoover and then you know, he just start popping, man. [¶] [The Prosecutor:] So when you say you heard the shooter say ‘8-Trey Hoover,’ did you know what that meant at that time? [¶] [Brooks:] Yeah, I knew what that meant. [¶] [The Prosecutor:] And what is 8-Trey Hoover, if you know? [¶] [Brooks:] A gang . . . .”
Apart from whether the shooter’s statement was improperly allowed as inadmissible hearsay, it caused Nash no prejudice. There is ample evidence, other than the shooter’s statement, to show the May 19, 2005, shooting was gang related. As stated above, both the perpetrators and the victims of the shooting were gang members. In addition, Officer Algren testified that the Rolling 60’s and the 8-Trey Gangsters are “mortal enemies” who engage in shootings on a regular basis. Officer Mendoza stated the two gangs “have a general hatred for each other” and that “[c]onstant assaults [are] occurring back and forth between the two gangs.” Mendoza also testified that, by shooting at a rival gang member in the rival gang member’s territory, a gang member can show his rivals that his “gang is a force to be reckoned with.” Finally, a previous encounter between Brooks and Nash had ended with what Brooks interpreted as a threat from Nash. From this evidence, a jury could reasonably conclude that when Nash drove Boston, who was armed with a loaded handgun, to a house known to be a Rolling 60’s hangout in Rolling 60’s territory, they intended to shoot Brooks and De Pillars for the benefit and promotion of their criminal street gang. (See People v. Mullens (2004) 119 Cal.App.4th 648, 662 [As to criminal intent, “ ‘[b]ecause [it] can seldom be proved by direct evidence, it may be inferred from the circumstances.’ ”].)
Nash makes much of the fact that the shooter stated he was from the 8-Trey “Hoover” gang rather than the 8-Trey “Gangster Crips.” However, given the evidence establishing Nash’s and Boston’s membership in the 8-Trey Gangsters, it would not have been unreasonable for the jury to conclude the 8-Trey Hoovers were a related or sub-group of the 8-Trey Gangsters. The prosecutor took this approach during closing argument when he stated, “And defendant belongs to a rival gang that announced their presence and their intention during the shooting. It’s as though the shooter left a calling card by saying 8-Trey Gangsters or 8-Trey Hoovers. He left a clue for us to gather who it was that committed this crime.”
d. Substantial evidence supports the jury’s finding Nash and the shooter intended to kill Brooks.
Nash contends there is insufficient evidence he or the shooter, Boston, intended to kill Brooks. He asserts the target of the shooting was De Pillars and Brooks was simply “struck by stray fire.”
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions.” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [Where a defendant fired a single bullet “at two officers, one of whom [was] crouched in front of the other, the defendant endanger[ed] the lives of both officers and a reasonable jury could infer from this that the defendant intended to kill both.”].)
“ ‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “ ‘Whether [a] defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’ ” (Ibid.) “ ‘[A]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ ” (Ibid.)
In the present case, Nash drove the shooter, Boston, to a house in Rolling 60’s gang territory. Boston, armed with a handgun, announced the name of his gang then, as Nash leaned back, fired three or four shots past Nash, out the driver’s side window. Two of the shots hit the screen door behind which Brooks was standing. One of the shots hit Brooks in the leg. From this evidence, it can be reasonably inferred both Nash and Boston intended to kill Brooks. The fact that, not just one, but two bullets were fired at the screen door, indicates they were not just “stray[s],” but that Boston, with the aid of Nash, saw and intentionally fired at Brooks.
2. Expert opinion testimony regarding gangs was properly admitted.
Nash contends the admission of expert gang testimony was both improper and failed to support a finding the shooting was committed to further, promote, or benefit a criminal street gang. He initially asserts the gang experts’s testimony improperly “exceeded the limitations of California Evidence Code section . . . 801.” That section provides in relevant part: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .”
Nash asserts the experts’s testimony also exceeded the limitations set forth in Evidence Code, section 800. However, that section pertains to the opinion testimony of “nonexperts” and has no application to the present case.
It has been determined that “[t]he subject matter of the culture and habits of criminal street gangs . . . meets [the] criterion” set forth in Evidence Code, section 801. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) “In general, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citations.]” (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Moreover, “ ‘[t]here is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.’ [Citations.]” (Id. at p. 507.)
In People v. Gardeley, supra, 14 Cal.4th at p. 619, the prosecutor gave to the witness, a police detective, a “ ‘hypothetical’ ” based on the facts of the assault in the case, then asked the detective if, in his expert opinion, the attack as described would be considered “ ‘gang-related activity.’ ” The detective “responded that it was a ‘classic’ example of gang-related activity, explaining that criminal street gangs rely on . . . violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold.” (Ibid.) The appellate court determined that, from this expert testimony, the jury could reasonably conclude the assault on the victim by members of a gang had been committed “ ‘for the benefit of, at the direction of, or in association with’ [the] gang, and ‘with the specific intent to promote, further, or assist in . . . criminal conduct by gang members[.]’ ” (Ibid.)
In the present case, the trial court properly exercised its discretion when it allowed Officers Algren and Mendoza to testify regarding the motivation behind and purpose of gang behavior such as the May 19, 2005, shooting. (People v. Catlin (2001) 26 Cal.4th 81, 131 [“A claim that expert opinion evidence improperly has been admitted is reviewed on appeal for abuse of discretion.”].) In particular, the trial court properly allowed Mendoza’s testimony he believed a shooting, such as the one which occurred on May 19th, would have been for the benefit of a criminal street gang. Mendoza’s opinion was based on a hypothetical presented by the prosecutor, based on the evidence adduced at trial, and encompassed material and subjects “ ‘sufficiently beyond common experience’ ” that it assisted the trier of fact. (People v. Valdez, supra, 58 Cal.App.4th at p. 506.)
Nash’s reliance on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) is misplaced. There, the defendant, Lloyd Glenn Killebrew (Killebrew), was found guilty of conspiring to possess a handgun. At Killebrew’s trial, a police officer testified as an expert on gangs to establish, not only Killebrew’s membership in a criminal street gang, but his subjective knowledge and intent to possess a handgun. Through the use of hypothetical questions, the expert testified that each of the individuals in the three cars involved in the incident “(1) knew there was a gun in [two of the three cars], and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, [the expert] testified to the subjective knowledge and intent of each occupant in each vehicle. [The appellate court determined] [s]uch testimony is much different from the expectations of gang members in general when confronted with a specific action.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 658, original italics.)
In People v. Gonzalez (2005) 126 Cal.App.4th 1539, the court distinguished Killebrew. The court stated, “Expert testimony repeatedly has been offered to show the ‘motivation for a particular crime, generally retaliation or intimidation’ and ‘whether and how a crime was committed to benefit or promote a gang.’ [Citation.] Appellant’s reliance on Killebrew for a contrary conclusion is misplaced. In Killebrew, in response to hypothetical questions, the People’s gang expert exceeded the permissible scope of expert testimony by opining on ‘the subjective knowledge and intent of each’ of the gang members involved in the crime. [Citation.]” (People v. Gonzalez, supra, 126 Cal.App.4th at pp. 1550-1551, original italics.) In contrast, in Gonzalez, the gang expert’s testimony did not “embrace [Gonzalez’s] particular knowledge or his intent, specific or otherwise. Rather, his testimony addressed the motives of jailhouse gang members in general. This evidence, coupled with the evidence that [Gonzalez] was a gang member, may have led the jury to the ineluctable conclusion that [Gonzalez] intended to kill [the victim], but that does not render it inadmissible. [Citation.] To the contrary, the expert testimony was crucial to the prosecution’s theory of the case.” (Id. at p. 1551; see also People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 [“Even if we assume, without deciding, that Killebrew is correct . . ., it has no relevance here. [The expert] merely answered hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony.”].)
In the present case, neither Officer Algren nor Officer Mendoza testified with regard to Nash’s subjective specific intent. Rather, their testimony, in response to hypotheticals based on the evidence adduced at trial, properly addressed his likely motives based on the motives of gang members in general. (See People v. Ward (2005) 36 Cal.4th 186, 210 [“The substance of the experts’ testimony, as given through their responses to hypothetical questions, [properly] related to [Ward’s] motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges.”].)
Nash’s assertion the experts’s testimony failed to support the jury’s finding the shooting was committed for the benefit of a criminal street gang is also without merit. As previously discussed, in view of the experts’s testimony a jury could reasonably have concluded that Nash and Boston drove to a house, known to be a Rolling 60’s hangout in Rolling 60’s territory, intending to shoot Brooks and De Pillars for the benefit and promotion of a criminal street gang.
3. The admission of evidence regarding the prior encounter between Brooks and Nash did not violate section 1101 of the Evidence Code and the evidence was not more prejudicial than probative.
Nash argues the admission of evidence of his August, 2004, encounter with Brooks violated Evidence Code section 1101. The contention is without merit.
Evidence Code section 1101 provides in relevant part: “(a) Except as provided in this section . . ., evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act. . . .”
In the present case, Brooks testified that in August of 2004, he and a companion went to an area near the intersection of Budlong and 90th Street to purchase drugs. Nash, who was also in the area, got out of a car, approached Brooks and told him to take off his New York Yankee’s hat. When Brooks ignored Nash, Nash became angry and told Brooks that he was from the “8-Trey,” or “Gangsters,” gang and that the area was his “hood.” Nash then told Brooks that, the next time he saw Brooks, it was “going to be cracking,” a comment Brooks perceived as a threat.
Later in the proceedings, after examining Brooks with regard to his identification of Nash in the photographic line-up, the prosecutor asked Brooks to read a statement he had given to police. The statement indicated that, approximately one year before the shooting, Brooks was “was walking down Budlong and this dude [who] was in a green Rivera, told [him] to take [his] hat off.” When Brooks refused, the man and “his boys jumped out” and attempted to “get at” Brooks, who ran off. Brooks was later told that the man was “Little Ant from E.T.G.” Brooks indicated he had seen the same man “driving the green Monte Carlo, the same car [he had been] shot out of.”
Brooks’s statement indicates evidence of the August 2004 incident was not offered to improperly reveal aspects of Nash’s character, but went to the issue of identity. Evidence of the incident was admissible pursuant to subdivision (b) of Evidence Code, section 1101 to show Brooks, who had previously had a face-to-face encounter with Nash, could accurately identify Nash. (See People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613 [A “range of evidence may be presented to show motive, intent, and identity where the prior misconduct and charged offense involves the identical perpetrator and victim.”].)
Neither was the evidence more prejudicial than probative. There was abundant evidence, in addition to that of Nash’s and Brook’s August 2004 encounter, which indicated Nash was an active member of the 8-Trey Gangsters. On the other hand, Brooks’s out-of-court statements and testimony were the only evidence indicating Nash was the driver of the car from which the shots were fired. Evidence of the August encounter was critical to the issue of Nash’s identity and its probative value substantially outweighed any prejudice it may have caused Nash. (Evidence Code, § 352.)
4. Any error which may have occurred when the trial court instructed the jury on a “concurrent intent” or “kill zone” theory of attempted murder was harmless.
a. Background.
The trial court instructed the jury with CALCRIM 600 in relevant part as follows: “The defendant is charged in Counts 1 and 2 with attempted murder. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The perpetrator took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of Yusef Brooks on a kill zone theory, the People must prove that the defendant not only intended to kill Michael De Pillars, but also either intended to kill Yusef Brooks, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Yusef Brooks or intended to kill Michael De Pillars by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Yusef Brooks.”
On the second day of deliberations, the jury sent to the trial court the following note: “We need clarification on paragraph two of page 7. [¶] It states that in order to convict the defendant of the attempted murder of Yusef Brooks the People must prove that the defendant not only intended to kill De Pillars but also Yusef Brooks or anyone within the kill zone. [¶] Then it says if you have a reasonable doubt whether the defendant intended to kill Yusef Brooks or De Pillars by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Yusef Brooks. [¶] The verbiage is confusing.” (Emphasis in original.)
Out of the presence of the jury, the trial court discussed the note with counsel. The trial court stated, “This relates to the kill zone instruction which is not a work of art, frankly in the new jury instruction. And in thinking about it I’m not sure based upon the argument that [the] kill zone instruction should have even been given in this case. . . . The case was argued on straight attempt murder regarding Mr. Yusef Brooks. I mean by that, [prosecutor], my recollection of your argument, you told the jury . . . they were trying to kill Brooks. . . . [¶] My sense is, the prosecution began the case thinking that he was possibly not an intended target and concluded the case certainly by closing argument, had come to the opinion that perhaps he was and likely was one of the intended targets. [¶] I don’t know what to do with this note. We can explain to the jury that this is a second theory of responsibility. . . . [¶] Another option would be to tell them to ignore this entirely and to withdraw the instruction. And to just judge the case on [its] merits, the way it was argued, on just a straight attempt murder theory.”
After further discussion between the trial court and counsel, it was decided the trial court would give the jury additional instructions regarding the theory of a “kill zone.” The trial court then addressed the jury, stating, “I think the best way to try to clarify it is to try to tell you this idea of a kill zone theory of responsibility is an independent theory from regular attempted murder. [¶] Regular attempted murder – what I would call regular attempted murder – is if I point a gun at someone and I am trying to kill that person. The kill zone theory comes into play when I try to kill somebody and I know that my actions are likely to endanger others. [¶] Now, the example of a kill zone would be putting a bomb on a plane. I want to kill my ex-wife. She’s flying to Boston so I put a bomb on the plane. Now, I know that they’re going to be other people on the plane. I even know who they are. But I’m intending to kill everybody on that plane because I’m trying to get back at my ex-wife, okay. I mean, that would be the idea of a kill zone.” The trial court then read to the jury a modified version of the instruction previously given.
After resuming its deliberations, the jury sent a second note to the trial court asking for clarification of the “kill zone” instruction. The note read: “We are still questioning the verbiage of the last sentence of paragraph two on page 7. Quote: If you have a reasonable doubt whether the defendant intended to kill Yusef Brooks or Michael De Pillars by harming everyone in the kill zone then you must find the defendant not guilty of the attempted murder of Yusef Brooks. [¶] Should this say ‘guilty,’ is this a typo?”
In response, the trial court addressed the jury, stating, “It’s not a typo but it’s kind of difficult to understand.” The court then again explained that there were “two theories of responsibility . . . . [¶] One, a person intended to kill – we’ll make it Yusef Brooks and the defendant aided and abetted and had the intent to kill at the time he was aiding and abetting. That’s the first theory, okay. [¶] Now, the second theory is that there was an attempt to kill Michael De Pillars and Brooks was in the kill zone and that’s what this paragraph relates to. So that’s the only time we get there, is if you reject the first theory and now you are going to go to the second theory.” The trial court then gave to the jury a lengthy explanation of the theory behind the concept of the “kill zone,” after which it asked, “You got it? [¶] You don’t have it?” In response, Juror Number 12 stated, “No, this time I think we do.”
Approximately one hour after resuming its deliberations, the jury sent a note to the trial court indicating it could not reach a verdict. The trial court instructed the jury to continue its deliberations. Approximately one-half hour later, the jury requested a read-back of a portion of Brooks’s testimony. Approximately 40 minutes after hearing the read-back of the requested testimony, the jury reached its verdicts.
b. Discussion.
Nash contends the trial court committed prejudicial error by instructing the jury on a “kill zone” theory of liability for attempted murder. He urges the “kill zone” theory is not an alternative theory of liability but “simply mean[s] that the trier of fact [may] infer from all the facts and circumstances that a perpetrator ha[s] a concurrent intent to kill the intended target and any non-intended targets who [become] incidental victims because of the nature of the perpetrator’s act.” We need not, however, consider the question.
In addition to CALCRIM 600, the trial court instructed the jury with CALCRIM 601. That instruction states in relevant part: “If you find the defendant guilty of attempted murder, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [¶] The perpetrator acted willfully if he intended to kill when he acted. The perpetrator deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The perpetrator premeditated if he decided to kill before acting. [¶] The attempted murder was done willfully and with deliberation and premeditation if either [Nash] or the perpetrator or both of them acted with that state of mind. . . .”
In finding Nash guilty of the attempted murder of Brooks, the jury found true the allegation that the attempted murder “was willful, deliberate and premeditated.” Accordingly, the jury necessarily found the attempted murder was intentional, i.e., committed with the specific intent to kill Brooks. Under these circumstances, any error the trial court may have committed by instructing the jury on a “kill zone” theory of liability was harmless. There is no reasonable probability a result more favorable to Nash would have occurred had the instruction not been given. (People v. Watson (1956) 46 Cal.2d 818, 836.)
5. The trial court properly imposed a section 12022.53, subdivision (d) enhancement with regard to count two.
The jury found Nash guilty of the willful, deliberate, premeditated attempted murder of De Pillars as alleged in count two of the information. The jury also found true the allegation made pursuant to section 12022.53, subdivision (d) that, during the commission of the offense, a principal personally and intentionally discharged a firearm causing great bodily injury to Yusef Brooks. Based on this finding, the trial court imposed an enhancement of 25 years to life with regard to Nash’s conviction of the attempted murder of De Pillars. Nash asserts the trial court erred in imposing the enhancement because De Pillars suffered no injury as a result of the shooting.
Section 12022.53 provides for sentence enhancements for persons convicted of certain felonies and who used a firearm during the commission of any one of those felonies. Subdivision (d) of section 12022.53 provides in relevant part: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (Italics added.) Attempted murder is one of the crimes specified in subdivision (a) of section 12022.53. (§ 12022.53, subd. (a)(1) & (18).)
Subdivision (e)(1) of section 12022.53 provides: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” (Italics added.)
Subdivision (b) of section 186.22 provides for an enhancement for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang . . . .”
Here, Nash was found to have violated subdivision (b) of section 186.22. In addition, in committing the crime, Nash, himself a principal (People v. Calhoun (2007) 40 Cal.4th 398, 402 [“Both aiders and abettors and direct perpetrators are principals in the commission of a crime.”]), aided and abetted a principal, Boston, who discharged a firearm causing great bodily injury to Brooks, a person other than an accomplice. Accordingly, the trial court properly imposed the section 12022.53, subdivision (d) enhancement with regard to Nash’s conviction of the attempted murder of De Pillars.
People v. Oates (2004) 32 Cal.4th 1048 (Oates) is instructive. In that case, the defendant fired two gunshots into a group of five men. The first shot hit a man in the leg and, as a result of the gunshot wound, the leg had to be amputated. The California Supreme Court determined a section 12022.53, subdivision (d) enhancement could be imposed with regard to each of the five counts of attempted premeditated murder of which the defendant had been convicted. The court noted that “the evolution of section 12022.53 during the enactment process suggest[ed] that the Legislature did not intend to limit imposition of a subdivision (d) enhancement to the crime involving the person who was actually injured.” (Id. at p. 1058.) Since it applies to “any person other than an accomplice” who suffered great bodily injury, application of the enhancement is not limited to the actual victim or the number of qualifying injuries inflicted. (Id. at pp. 1055-1056, 1058-1062.) Accordingly, the Oates court determined the trial court could properly impose a section 12022.53, subdivision (d) enhancement for each of the five counts of attempted murder even though only one of the victims suffered a qualifying great bodily injury. (Id. at pp. 1052-1053, 1062.)
In the present case, the trial court properly imposed a section 12022.53, subdivision (d) enhancement with regard to each of the two counts of attempted willful, deliberate, premeditated murder of which Nash was convicted, including that of De Pillars. (People v. Oates, supra, 32 Cal.4th at p. 1062.)
6. Cumulative error.
Nash asserts cumulative error requires reversal of his convictions. However, since we have found no prejudicial error, the contention is without merit.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.