Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02F11038
SIMS , Acting P.J.In these consolidated separate appeals after a joint trial in cases consolidated in the trial court, defendants Lamson Trong Pham, Bruce Huy Phan, and Sutter Nguyen appeal following convictions for murder and attempted murder, with findings of firearm use against Lamson and Bruce. (Pen. Code, §§ 187, 664; undesignated statutory references are to the Penal Code.) Sutter contends the evidence is insufficient to support the judgment. Some or all defendants in their separate briefs contend the trial court improperly (1) denied Sutter’s severance motion, (2) allowed the prosecutor to discriminate in jury selection, (3) admitted street gang evidence (despite the absence of street gang charges) and expert opinion regarding mental state, (4) excluded exculpatory evidence, (5) misinstructed the jury, (6) coerced the jury to reach a verdict, (7) allowed prosecutorial misconduct, (8) denied a mistrial motion, (9) failed to entertain Bruce’s motion to discharge retained counsel, and (10) imposed an unlawful sentence on Lamson. We shall make a sentencing correction conceded by the People as to Lamson. We shall otherwise affirm the judgments.
Due to similarity of surnames, youth of some of the witnesses, and gang overtones of the case, we use first names or first and last initials.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2003, Lamson and Bruce were charged with the October 2002 murder (§ 187) of Alan Khamphoumy, with personal discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and attempted murder of T.T. and V.D. with the same firearm allegations. In August 2003, Sutter was charged with the same offenses.
The trial court granted the prosecutor’s motion to join the cases and denied Sutter’s motion for severance. An amended consolidated information was filed, charging all defendants with one count of murder and two counts of attempted murder, and alleging firearm enhancements and infliction of great bodily injury under sections 1203.06, 12022.5, 12022.7, and 12022.53.
The prosecution’s theory was that defendants were involved in a Vietnamese street gang (though the case was not charged under the street gang statutes) and went looking for a confrontation with rival Laotian gang members and shot at unarmed people. Lamson and Bruce claimed self-defense. Sutter did not testify but maintained there was no evidence he was there or had anything to do with the crimes.
The evidence at trial included the following:
On the night of October 26, 2002, a Laotian family held a birthday party for a 16-year-old girl in and around the garage of their Sacramento residence. Some of the attendees (including one of the people who was shot, T.T.) were involved in a Laotian street gang -- LGC (Little Gangster Crips or Laotian Gangster Crips).
Also present were some Vietnamese who were involved in a Vietnamese street gang (JVP or Junior Viet(namese) Pride).
All defendants are Vietnamese. Prosecution evidence indicated that in 1998 the police confirmed (validated) Sutter as a JVP gang member, and Lamson (though not validated as a member) associated with the JVP gang. There was no evidence that Bruce was a gang member.
“Validation” means the police fill out a form concluding a person meets at least two of several criteria established by the police for determining gang membership.
There was conflicting evidence as to what happened. One partygoer, S.K. (also known as Viet), testified he recognized Lamson at the party, having met him when they were both at the Boys’ Ranch, where Lamson claimed affiliation with JVP. S.K. admitted he was a member of LGC but said it was not an LGC party, and his friends did not have guns that night. Partygoers (some of whom testified under a grant of use immunity) testified the two groups faced each other across the driveway. The Vietnamese asked, “Where you all from?” (which a gang expert explained was a challenge to fight). One of the Laotians said, “LG.” The Vietnamese said, “LG What?” pulled out their guns and started shooting.
T.T., an LGC member (who testified he quit LGC before the party), heard gang taunts of, “where you from” and saw guns. Unarmed, he backed away and tried to escape but was shot in the stomach. V.D., a 17-year-old girl, was shot in the hip and leg. Alan Khamphoumy was shot and killed.
She had participated in Internet chat with two of defendants’ group but denied mentioning the party to them. One of them, John D., told the police that he recognized the girl at the party as someone he knew “from being on-line.”
Lamson and Bruce were stopped by police on the same street as the party as they tried to leave the scene in a Tahoe SUV. The police noticed Lamson was bleeding (having been shot, perhaps accidentally, by one of his companions). Two guns were found in the SUV, both of which were connected to casings found at the crime scene. Bruce’s fingerprints were on a gun (a Kimber .45), which was matched to the bullet that killed Alan Khamphoumy, and gunshot residue was found on Bruce’s palm.
Some but not all partygoers identified Lamson and/or Bruce in police line-ups.
As part of the investigation, police sought validated JVP members Sutter and Trung Nguyen, also known as Boy (a JVP leader or “shot caller”), but did not locate them.
Sutter was arrested months later, on June 24, 2003, when he was in a black Honda stopped by the police. After the driver emerged from the Honda, the front seat passenger -- Boy -- killed himself with a gunshot wound to the head. Sutter then emerged from the back seat, with a loaded gun in his waistband.
An earlier suicide by another person, Tan T., in March 2003, brought to light a .380 pistol that was matched to casings found at the crime scene and most likely fired a bullet that hit Lamson.
Shell casings from four guns were found at the scene. The 27 shell casings found at the scene were of .45, .380, and nine-millimeter calibers. Ten were connected to the .45 Ruger and the .45 Kimber found in the vehicle of Lamson and Bruce and to the bullet found in the deceased Khamphoumy. Three .380 casings were from the gun later used by Tan T. to commit suicide. Fourteen casings and five slugs were traced to a nine-millimeter gun which was not recovered. Test firing of a gun found behind the fence at the scene of the party did not match any casings taken from the scene.
Lamson and Bruce testified at trial, and both testified that they and Sutter were at the party. Lamson and Bruce admitted they fired guns, but claimed they did so only in self-defense or defense of others.
Lamson denied JVP involvement but knew Boy was a JVP member. Lamson was told by Sutter that Sutter used to be JVP but left because he did not get along with the group. Lamson claimed he went to the party to meet girls and he was carrying a gun that night because he thought it would be “cool” to show to girls. He claimed he fired the gun in self-defense after others started shooting. Lamson said he saw Sutter at the party but did not remember seeing Sutter during the shooting. Lamson said he came out of the garage after dancing; someone shot at him; and he fired back. He got shot, and Bruce helped him to the SUV.
Bruce testified he was not a JVP member. He also claimed he carried a gun to impress girls. He said he fired only in defense of Lamson. Bruce said he came out of the garage, heard someone say, “Little Gangster Crip Nigga” and saw T.T. trying to shoot a gun but nothing came out. Bruce was unsure of the sequence of events but said Boy drew his gun and fired, and others drew guns, including Sutter and John D. Bruce said he drew his gun and fired after Viet shot Lamson. Bruce first testified Sutter also pulled a gun and shot, but the next day testified he did not know whether Sutter did or not, and did not know what Sutter did during the shooting, and was only assuming Sutter was present because he (Bruce) saw someone who resembled Sutter at the party. Bruce said he did not even know Sutter and saw him for the first time sitting in a car at the park that night. Bruce said he, not Sutter, helped the injured Lamson.
John D., age 19 at the time of trial, testified he had been given use immunity and was awaiting trial for an unrelated murder. John testified Boy was JVP, but John and Sutter were not. John testified Boy and Tan T. picked up John in Boy’s black Honda on the night in question, and they went to a park where they met up with Lamson and Bruce and some girls, and then Sutter arrived at the park. Boy told the group that the ABZ gang was having a party. The males in the group went to the party. John testified that he, Sutter, Lamson, and Tan T. went with Boy in Boy’s car. At the party, John’s group walked into the garage where the party was being held. They all stood in a corner, except Lamson, who danced. They saw some Laotians across the garage, looking at them in an unfriendly way. John’s group went outside to the driveway, except Lamson, who continued dancing. The Laotians came out and faced John’s group across the driveway and asked what “set” John’s group was from. One of John’s group asked the same question of the Laotians, who said they were LGC. Bruce pulled out a gun. The Laotians said, “we’re cool,” as in “they didn’t want no beef.” John told the police he did not see any of the Laotians with a weapon. Lamson came out of the garage holding himself and falling down. John testified he was wrong when he told the police that the shooting started when Lamson pulled his gun; it actually started before Lamson came out of the garage. John did not remember who shot first, but it was not Sutter because Sutter did not have a gun. Sutter helped Lamson to Bruce’s vehicle before leaving with John. John testified he himself did not have a gun, and he ran to the car when the shooting started. John testified it was Tan T., not Sutter (as John previously told the police), who fired the .380 pistol which Tan T. later used to commit suicide. John denied changing his story to protect Sutter and lay blame on the deceased Tan. However, John admitted he lied to the police, which he attributed to his fear of being charged with the shooting. He also admitted he testified incorrectly at trial that he never possessed a gun (he said he misunderstood the question). He possessed a gun on another occasion, but not on the night in question.
Sutter’s appeal focuses on John D., whom Sutter contends should have been classified by the court as an accomplice as a matter of law whose testimony required corroboration.
John D. acknowledged he did not previously tell the police about Tan T. being there. Bruce testified Tan was not there.
The gang expert testified that ABZ (Asian Boys), a Crip set which was mainly Cambodian, associated with the Laotian gang LGC.
Partygoer Phet B. testified T.T. walked towards defendants’ group with his hands out to the side from his waist, palms facing forward. The gang expert testified that approaching with hands out was an invitation to fight. Phet B. testified defendants’ group pulled out guns, and everyone else started backing up and ran when defendant’s group opened fire.
Evidence was adduced that John D.’s trial testimony conflicted in part with his statements in a police interview on June 25, 2003, a (redacted) videotape of which was transcribed and played for the jury. He told the police he was at the park with Boy, Lamson and Bruce on the night in question when Sutter arrived. John and Sutter went with Boy in Boy’s black Honda to the party. After 10 or 20 minutes, they walked outside of the garage. Some Laotians walked out, approached, and asked where they were from. John backed up. Bruce pulled out a gun. The Laotians said they were LGC. Lamson then jumped out of the garage and pulled out a gun. Sutter and Boy pulled out guns. Bruce fired first, and then others started shooting, but John did not see who. Sutter had a .380 AMT or AMG, which someone later borrowed to commit suicide. After the shooting, Sutter helped Lamson to the SUV, then drove off with John and Boy.
Other than three witnesses (John D. and codefendants Lamson and Bruce), no one placed Sutter at the crime scene. Indeed, one of the victims testified he was acquainted with Sutter but did not see him at the party. Another witness, J.L., testified she saw Boy and John earlier in the evening in the parking lot of a pool hall. She showed them where the party was. No one else was in Boy’s car at the time. However, Boy and John did not stay at the party but left and returned later.
One of the people who was shot, T.T., testified he knew Sutter from a prior mutual confinement at Boys’ Ranch in 1999 but did not see him the night of the party. When asked if he would have known Sutter had he seen him, T.T. said, “I wouldn’t be so sure if that’s him or not.” T.T. also said he was not there long enough to see who was there, and he had been drinking. T.T. acknowledged he did not identify Sutter as one of the perpetrators in police line-ups; he did not really recognize Sutter in the line-ups and was not sure it was him. T.T. said that at the Boys’ Ranch he got along with Sutter, who said he used to be a gang member but no longer was. T.T. said he was not sure if he would have recognized Sutter at the party “‘cuz I never seen him in street clothes before.” T.T. said he would have no reason to deny seeing Sutter if he had seen him. T.T. testified he was also unable to say whether Lamson or Bruce was at the party.
Sutter did not testify at trial. His attorney argued to the jury that there was no evidence Sutter was even there that night, other than uncorroborated testimony of “accomplices” Lamson, Bruce, and John D.
Additional facts appear in our discussion.
The jury found Lamson guilty of second degree murder and two counts of attempted murder and found true as to each count that he personally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53, subd. (c)), and caused great bodily injury or death by using a firearm (§ 12022.53, subd. (d)).
The jury found Bruce guilty of second degree murder and the attempted murder of V.D. and found true the gun allegations as to those two counts -- i.e., that he personally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53, subd. (c)), and caused great bodily injury or death by using a firearm (§ 12022.53, subd. (d)). However, the jury deadlocked as to Bruce on the attempted murder of T.T. (count 2), for which the court declared a mistrial.
The jury found Sutter guilty of second degree murder and two counts of attempted murder, but found not true the allegations that defendant used a firearm, personally used a firearm, and intentionally and personally discharged a firearm.
The trial court sentenced Lamson to an indeterminate term of 15 years to life with the possibility of parole for murder, plus a determinate term of nine years, four months for the attempted murders, plus consecutive terms of 25 years to life for each of the firearm enhancements. The court sentenced Bruce to an indeterminate term of 15 years to life for the murder, plus seven years for attempted murder, and consecutive terms of 25 years to life for the firearm enhancements. The court sentenced Sutter to 15 years to life for murder, consecutive to nine years, four months for the attempted murders.
We consolidated defendants’ appeals.
DISCUSSION
I. Sutter’s Appeal
We begin with Sutter’s contentions, some of which (evidentiary error in admission of gang evidence and instructional error regarding motive) are joined by Lamson and/or Bruce.
Because one of Sutter’s contentions (insufficiency of the evidence) would be dispositive if correct, we shall first address the usual antecedents to that contention (claims of evidentiary and instructional error). We shall then address the claim of insufficiency of the evidence and shall conclude the contention lacks merit. We shall then address Sutter’s other contentions. Although Sutter says he joins in any contentions of Lamson or Bruce “which may accrue to [Sutter’s] benefit,” we shall see when we resolve the contentions of Lamson and Bruce that none benefit Sutter.
To provide a roadmap, our discussion of Sutter’s contentions will follow this route:
A. Admission of Gang Evidence
B. Jury Instructions: (1) Accomplices, (2) Motive, (3) Flight
C. Sufficiency of Evidence
D. Denial of Severance Motion
E. Claim of Prosecutorial Misconduct
F. Denial of Mistrial Motion
G. Joinder
H. Claim of Cumulative Error
A. Gang Evidence
All defendants argue the trial court improperly admitted extensive gang evidence on the issues of mental state or motive, despite the fact that no gang offenses or enhancements were charged. Lamson and Sutter complain of the admission of “gang evidence” generally, while Bruce complains of the admission of “‘expert opinion’ evidence on [Bruce’s] mental state.” We note Bruce’s interests differed from those of Lamson and Sutter regarding gang evidence, because there was no evidence that Bruce was a JVP member, and Bruce himself used evidence of the gang affiliation of others to distance himself from his codefendants.
We shall conclude defendants fail to show grounds for reversal.
1. Background
Although no gang statutes were charged, the prosecutor moved in limine to admit gang evidence on the issues of motive, intent, identification, and witness intimidation. Defendants objected such evidence was more prejudicial than probative under Evidence Code section 352, was improper character evidence under Evidence Code section 1101, and violated constitutional rights to due process and fundamental fairness.
The People argue Sutter forfeited any challenge based on Evidence Code section 352, by failing to raise it in the trial court. However, Sutter’s reply brief cites to his written supplemental brief filed in the trial court, in which he did argue that gang evidence should be excluded under Evidence Code section 352.
Lamson and Bruce requested an Evidence Code section 402 hearing concerning expected testimony from the prosecution’s gang expert, probation officer Todd Winfrey. The matter was decided on briefs and argument, including a written offer of proof as to what Winfrey would say. The prosecutor sought to have Winfrey testify about gang confrontation, vocabulary and psychology, and descriptions of the pertinent gangs and defendants’ association in them.
The offer of proof said nothing specific about Bruce but said Winfrey would testify (1) Sutter was validated as JVP in December 1998 and was involved in a fight with rival gang members in March 1998 and committed robbery on a gang member who identified Sutter as a gang member in December 1998; (2) Lamson had tattoos consistent with gang membership, was caught breaking into cars with a gang member in December 2000, and according to a fellow inmate at the Boy’s Ranch, Lamson identified himself as JVP and yelled “JVP” during a fight; and (3) JVP and LGC would be considered rival street gangs, and “where you from?” is a challenge for the person to represent their gang affiliations and would typically lead to a violent conflict.
Lamson objected on grounds the evidence to be admitted was impermissible propensity evidence. Sutter joined in this objection and added objections based on relevance, staleness of his validation as a JVP member which occurred in 1998, and Crawford v. Washington (2004) 541 U.S. 36. Bruce argued he is not a gang member and should be allowed to adduce evidence of the gang membership of the codefendants from whom he hoped to distance himself.
The trial court ruled that, because no gang statute was charged but gang evidence may be relevant to motive, the court would allow some gang evidence but it would be severely limited. The expert could testify to the confrontational meaning of the greeting “where you from” and whether or not the JVP and LGC gangs are rivals. Evidence could be adduced of Sutter’s and Lamson’s involvement with JVP. The court excluded evidence that violence enhances reputation in gang culture.
After further briefing and argument, the trial court reiterated it viewed the gang evidence as highly relevant (even though no gang statute was charged) and would allow some leeway as to gang evidence, particularly in the area of motive, but would not allow the prosecution to present the case as if it had been charged under the gang statutes.
Jim Kang, a police investigator specializing in Asian gang crimes, testified the investigation of these crimes focused on Boy and Sutter. Kang had several prior contacts with both (including finding Sutter hiding in a closet during a probation search of Boy’s home in 1998) and had previously been told by Boy that he and Sutter were JVP members. Although Boy’s words were that Sutter was JVP “but he doesn’t do anything,” Kang testified that in gang parlance those words meant that Sutter had no leadership role.
Kang testified that, before October 2002 (when the subject crimes were committed), the JVP fell dormant when Boy, a JVP leader (“shot caller”), was placed in a juvenile institution. When Boy was released, JVP activity picked up, including two shootings against rival gangs ABZ and the Tiny Rascal Gangsters. Kang considered Boy a very dangerous gang member. Kang testified that murders bring gang members notoriety and respect from their gang. Kang opined that, if Boy were at a party and someone asked, “where are you from,” which was a gang challenge to one’s manhood, he might respond by shooting a gun. If Boy were going into enemy territory, he would bring back-up. Kang testified that two persons at the party (Viet and victim T.T.) were members of LGC, which, as far as Kang knew, was not a rival of JVP.
Two police officers testified that Boy was a JVP member since 1997.
Michael L. testified he had associated with JVP but stopped in 1999 or 2000, when he turned 18. He testified he once took a Tae Kwon Do class with Sutter but did not know if Sutter was a JVP member. Michael testified he was afraid for the safety of his family if he testified, but he was not afraid of Sutter. In December 1998, when Michael was trying to break away from JVP, Sutter and Tho T. came to Michael’s home, resulting in Michael’s calling 911. Days later, friends of JVP beat Michael for being a snitch.
Deputy Sheriff Nodinger Rye testified that in 1998, he spoke with Michael L. about an incident involving Sutter and Than Tho, and Michael said he did not identify Sutter because he was afraid of him.
Police officer Winston Gin testified he validated Sutter as a JVP member in December 1998 because Sutter admitted JVP membership and was in the company of other gang members.
Outside of the jury’s presence, the prosecutor argued that limitations on his gang expert previously set by the trial court in limine should be loosened because the defense had “opened the flood gates” by questioning Detective Kang about gang issues involving LGC members. The prosecutor sought to use his expert to “validate” Bruce as a JVP member based on his association with Boy and Sutter on the night of the shooting at the party. The court said the defense had opened the door somewhat, though the testimony had stayed generally within the in limine ruling. The court indicated Winfrey could render opinions as to whether defendants were gang members, and Evidence Code section 805 allowed experts to testify regarding ultimate issues to be decided by the jury.
Evidence Code section 805 provides: “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of the fact.”
Winfrey testified as an expert on Asian street gangs. He said JVP (Junior Viet Pride) was the junior set of VPG (Viet Pride Gangsters) founded by Boy’s older brother, Hung Nguyen. LGC (Little Gangster Crips or Laotian Gangster Crips) associated with ABZ (Asian Boys), a Crip set which was mainly Cambodian, and another Crip set called TRG (Tiny Rascal Gangsters). JVP and ABZ were rivals. JVP (specifically Boy) was suspected in the murder of an ABZ gang member near the Florin Mall in the fall of 2001. In July 2002, a TRG member was shot on Mack Road and told the police that he suspected JVP. A murder at an ABZ complex was attributed to Boy. Winfrey said gangs use fear and intimidation to gain respect.
The defense moved for a mistrial on the ground the expert exceeded the court’s ruling by discussing specific crimes. The trial court denied the motion but admonished the witness and the jury.
Winfrey testified the question, “where are you from?” in gang culture asks for the person’s gang affiliation. It can arise as a challenge and lead to fighting, shooting, and/or departure.
Winfrey answered a hypothetical, that if JVP members went to an ABZ party, Winfrey would expect a fight, because the two groups had problems with each other, including shootings and a homicide. The court instructed the jury, “this particular type of evidence is not being offered for the truth of the matter. What it’s being offered to show [is] . . . whether or not there was a motive. But essentially it’s up to you to determine whether or not there is a motive. [¶] And moreover, you’re not to consider this evidence for the purpose of establishing whether or not any of these defendants has a bad character or has a trait or has a character trait that--that is negative or bad. It’s merely to consider whether or not there is a motive behind the shooting.”
Winfrey then answered a hypothetical that if JVP members went to an ABZ party armed with guns, they were going there to shoot somebody. Winfrey was familiar with Boy and opined he would take with him to an ABZ party someone willing to back him up. In March 1998, Boy said Sutter was a JVP member, and Sutter said he was associated with JVP. Winfrey testified he reviewed various police reports indicating Sutter admitted or other persons stated he was JVP. The police validated Sutter as a JVP member in 1998.
Winfrey opined that both Sutter and Boy were members of JVP in October 2002, at the time of these crimes.
Winfrey answered a hypothetical that if Boy and Sutter were present at a confrontation between LGC and individuals on the other side of the driveway who asked, “where you from” and produced a firearm saying, “LG what?” and then produced firearms and shot 27 rounds, this would mean LGC was challenging JVP. Winfrey answered a hypothetical that if Boy told Sutter and others that ABZ was having a party, and they went to the party, the two validated JVP members planned to go to the party to have a confrontation with ABZ and, having been challenged by the LGC, they were prepared to fight. The court ruled this was relevant to motive but sustained a defense objection to the witness’s reference to “a 187.” Winfrey said he would expect them to commit an act which enhances their reputation as a gang. He did not find it unusual that the JVP did not simply leave upon realizing their rivals, ABZ, were not there. In such situations, the participants are mentally prepared to fight, and fighting enhances their gang reputation, and so they will fight.
The trial court sustained a defense objection and admonished the jury to disregard Winfrey’s statement opining Lamson was affiliated with JVP because he was arrested with Boy in 2001. Winfrey admitted that the police have never “validated” Lamson as a gang member. However, Winfrey opined Lamson had JVP affiliation, based on a December 2000 police contact of Lamson with Boy in Lodi, an incident at the Boys’ Ranch involving Lamson and another inmate, Lamson’s tattoo of Vietnam on his chest, a pattern of cigarette burns on his arm, and his willingness to go to an ABZ party with Sutter and Boy. The trial court admonished the jury to disregard a stray comment that Lamson was arrested rather than merely “contacted” with Boy.
Winfrey said the single incident at the party could not lead him to conclude that Bruce was a gang member, but it would indicate Bruce was a willing participant trusted by the others to go along with them.
As far as Winfrey knew, John D. had not been validated as a gang member (though he had been contacted with members of a Chinese-based gang). John was of Chinese ethnicity, whereas JVP was a Vietnamese gang. Winfrey was not familiar with John’s associations with Boy, and friendships between Chinese and JVP were uncommon.
Lamson’s counsel moved for a mistrial (or alternatively to strike Winfrey’s testimony in its entirety) on the ground the witness violated the court’s ruling by telling the jury that Lamson was arrested with Boy in 2001, and the admonition could not suffice. Lamson complained the prosecutor had repeatedly attempted to put in evidence that he committed a crime on behalf of a gang. Bruce and Sutter joined the motion, with Bruce arguing the reference to predicate offenses was improper, and the prosecutor was trying to use the gang expert for the impermissible purpose of proving intent rather than the motive evidence allowed by the court. The prosecutor argued the evidence was to establish motive, in that Boy was informed that this was an ABZ party; Boy and JVP had conflicts with ABZ, and with the background of problems between JVP and ABZ, their motive in going armed to the party was to participate in a shooting. The court denied the mistrial motion and motion to strike, noting the limits on gang evidence had been violated and had required admonitions, but the court believed the jury would follow the admonitions.
The prosecutor then elicited from Winfrey a correction that there was no police contact in January 2001 involving Boy and Sutter.
This was one of the bases given by Winfrey for his opinion that Sutter continued to be a JVP member at the time of these crimes in 2002. The other bases involved incidents from 1998.
Winfrey acknowledged Sutter and Boy were childhood friends and neighbors. Winfrey said S.K. and T.T. were dangerous gang members. In response to a hypothetical, Winfrey said that if Bruce went to the party to meet girls and fired a gun only after and in response to his friend Lamson being shot, Bruce would not be acting in furtherance of the gang, but it would be gang-related if he knew the others were a rival gang and he was there “to have Boy’s back” and challenged the rivals.
2. Analysis
The trial court has discretion to admit testimony of a gang expert where, as here, the dynamics of gang conflicts and gang values are at issue and are beyond the common experience of the jury. (Evid. Code, § 801; People v. Gardeley (1996) 14 Cal.4th 605, 617.) We review the trial court’s ruling for abuse of discretion. (People v. Partida (2005) 37 Cal.4th 428, 433-439.) In order to obtain reversal, defendants must show a miscarriage of justice and a reasonable probability of a more favorable result had the evidence not been admitted. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 877; People v. Watson (1956) 46 Cal.2d 818.) Defendants contend that admission of the evidence in this case also violated their federal constitutional rights to a fair trial (Partida, supra, 37 Cal.4th at p. 431), and therefore the error must be reviewed under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, i.e., requiring reversal unless we can conclude the error was harmless beyond a reasonable doubt. We shall conclude the trial court did not err in admitting the gang evidence.
Although gang evidence, due to its inflammatory nature, is generally barred if the crime is not otherwise gang-related, gang evidence has been admitted where, as here, “the very reason for the crime, usually murder, is gang related.” (People v. Maestas (1993) 20 Cal.App.4th 1482, 1497.) Gang evidence may also be relevant to noncharacter issues such as the defendant’s intent or motive. (People v. Funes (1994) 23 Cal.App.4th 1506, 1518 [upholding admission of gang evidence showing ongoing rivalry between gangs].) Although motive is not a required element of the offense, it is an intermediate fact which may be probative of such ultimate issues as intent, identity, or commission of the criminal act itself. (People v. Lewis (2001) 26 Cal.4th 334, 370.) Although motive is not an essential element of the offense, gang evidence is admissible in a gang-related case if relevant to motive. (People v. Williams (1997) 16 Cal.4th 153, 193.)
We begin with Bruce who, as we have indicated, had interests different from his codefendants, because there was no evidence of his gang membership, and he himself used gang evidence against his codefendants. Bruce contends the trial court erred in admitting expert opinion about his mental state. Bruce contends the admission of Winfrey’s opinion that Bruce was willing to participate in the crimes at the party, based on a hypothetical derived largely from John’s testimony, was error. The trial transcript shows as follows:
“Q [Prosecutor:] Starting at the park at which point . . . Boy informs all these individuals, including Bruce Phan, that ABZ is having a party, at which point they go to the [party] and the incident unfolds as previously stated in the hypothetical, . . . [¶] . . . [¶] Does that scenario give you any indication as to a gang affiliation of Bruce Phan?
“[Bruce’s attorney]: And I’m going to interpose an objection for lack of foundation.
“THE COURT: All right. The objection’s noted for the record. It’s overruled.
“[¶] . . . [¶]
“A [Winfrey]: That -- that this one incident alone would not give me indication that he was a member of a gang.
“Q All right. What -- would it tell you anything at all regarding those circumstances as you previously testified to?
“A It would. It would tell me that he was from the -- the scenario I’ve testified that he was a willing participant. He is trusted by Boy and Sutter and Lamson to go along with him, and he was willing to participate in -- in the act that took place at the [party].
“Q But at that point you can’t make any conclusions about gang affiliation, correct?
“A Correct.”
The first thing that jumps out at us is Bruce’s failure to object to the testimony about his being a willing participant. He objected only to the question about gang affiliation (which the witness in any event answered favorably to him). The earlier objections in limine did not preserve the issue because, as Bruce acknowledges, the trial court ruled it would admit only motive evidence. Thus, Bruce’s complaint is not that the trial court erred in its evidentiary ruling, but that the witness violated the court’s in limine ruling. To the extent the expert violated the in limine ruling, Bruce should have objected and asked the court to strike the testimony and admonish the jury to disregard it. Having failed to do so, Bruce has forfeited the contention. (Evid. Code, § 353, subd. (a).)
We recognize that, shortly after this testimony, Bruce’s attorney made a comment when Lamson and Sutter moved for a mistrial on the ground the expert spoke of other crimes. However, he did not seek a limited striking of testimony or admonition regarding the comment “willing participant.” Thus, Bruce’s attorney said, “Well, I join in, too, even though he [the expert] didn’t say those things specifically about my client. [¶] But he repeatedly one -- at one point said they went there for the purpose of committing a 187. He . . . used the phrase murder one time. [¶] And in light of the Court’s ruling that it was only supposed to be for the purposes of motive, and his opinion was supposed to be geared towards motive, he’s rendered opinions with respect to the ultimate fact of issue of whether or not these young men are guilty or not. “[¶] . . . [¶] I don’t understand why -- why he comes across saying things like that they went there with intent to kill. They went there with this -- the intent to commit murder or to go there to commit a 187. [¶] There is absolutely no evidence of that.” Bruce’s attorney argued admonitions do not work because they just highlight the matter. Lamson and Sutter said they moved in the alternative to strike the expert’s entire testimony. The trial court denied the motions for mistrial or to strike the testimony. On appeal, Bruce makes no assignment of error with respect to denial of the motions for mistrial or to strike the expert’s entire testimony. We therefore need not consider the matter further. We nevertheless note this case is different from the case upon which Bruce principally relies, People v. Killebrew (2002) 103 Cal.App.4th 644. Killebrew held the trial court erred in allowing a gang expert to testify that all occupants of three cars involved in a gang shooting were gang members who would have known of and mutually possessed any gun located in any of the three cars. (Id. at p. 658.) The expert’s beliefs regarding the suspects’ knowledge and intent were irrelevant. (Ibid.) Since erroneously-admitted testimony provided the only evidence supporting the prosecution’s conspiracy theory and since there was no evidence that the defendant was in any of the cars, reversal was required and retrial was barred. (Id. at p. 659.) Here, there was other evidence supporting Bruce’s conviction, including his admitted possession and use of a gun at the party (though he disputed a criminal intent) and by witness testimony that only defendants’ group had guns.
Lamson argues that extensive evidence of his JVP involvement and the gang’s violence and propensity to commit murders had minimal relevance, was inflammatory and cumulative, and violated due process. Sutter argues the gang evidence was inflammatory, cumulative, and violated his constitutional rights. However, the gang evidence was very relevant to provide context to the conduct at issue in this case. Outside of the gang world, the question, “where you from?” does not generally lead to gunfire.
Defendants cite cases such as People v. Perez (1981) 114 Cal.App.3d 470, which reversed a judgment for improper admission of gang evidence. However, Perez is distinguishable. There, the defendant was charged with stealing a car from a person. (Id. at p. 474.) The prosecutor sought to admit evidence that defendant was a gang member and used the car two days later in a gang-related shooting. (Id. at p. 473.) After the shooting, the car was found abandoned in a hospital parking lot, with a bullet hole in the fender, blood on the rear seat, and a collapsed tire. (Id. at p. 475.) The prosecutor argued the evidence that defendant drove the car in the shooting incident was relevant to prove motive in that the defendant stole the car so he and others could attack the dwelling of a rival gang member, and that abandoning the car at the hospital showed knowledge the car was stolen. (Id. at pp. 473, 477.) The trial court ruled that gang membership was relevant to the issue of identity, and the shooting incident was relevant as to the accuracy of the testimony of defendant’s friend who was a passenger during the shooting incident. (Id. at p. 474.) The appellate court said the gang evidence was not relevant to identity of the car thief. (Id. at p. 477.) The only possible relevant probative value of the shooting incident was the abandonment of the car to imply knowledge it was stolen, but the probative value, if any, was slight, since it was logical to infer the car was abandoned because it was not operable, had just been involved in a shooting, and the police might arrive at any moment. (Id. at p. 478.) The appellate court stated the trial court merely determined the evidence was relevant without weighing its probative value against its prejudice, as required by defendant’s Evidence Code section 352 objection. (Ibid.) Unlike Perez, here gang motive was essential to understanding the charged offenses, because the evidence was that someone asked, “where you from,” which prompted gunfire. Without evidence explaining that “where you from” is a challenge to fight in gang culture, the prosecution would have been prejudiced. We have similarly reviewed Lamson’s and Sutter’s other cited cases and conclude none supports reversal under the circumstances of this case. Thus, for example, People v. Albarran (2007) 149 Cal.App.4th 214, held gang evidence was not relevant to underlying charges arising from a shooting at a birthday party, because the prosecution failed to present any evidence that the crimes were gang-motivated, other than expert opinion. (Id. at pp. 217, 219, 225-228.) Unlike Albarran, where there was no evidence of any statements made before the shooting started, here there was evidence that members of two gangs squared off against each other and issued a challenge before the shooting started. Defendants also cite Maestas, supra, 20 Cal.App.4th 1482, which is distinguishable because there the gang evidence was relevant only to show bias of a witness who was in a gang with the defendant, who stabbed a man in a bar. (Id. at pp. 1492, 1494, 1497.)
Lamson argues gang evidence was unnecessary to prove association because he and Bruce were together when they were stopped by the police minutes after the shooting. However, merely being together provided no explanation about their conduct.
Lamson argues evidence of past shootings involving ABZ was irrelevant because there were no ABZ members at the party, and there was no evidence that the defendants planned to use their guns until T.T. initiated the altercation. However, the rival gang members (LGC) who were present at the party were associated with ABZ. Moreover, the expert explained it was not unusual that the JVP did not simply leave upon realizing their rivals, ABZ, were not there. In such situations, the participants are mentally prepared to fight, and fighting enhances their gang reputation, and so they will fight.
Lamson argues much of the gang evidence was cumulative. He cites People v. Cardenas (1982) 31 Cal.3d 897. There, however, the gang evidence had minimal probative value to establish bias of alibi witnesses and was cumulative, since it had already been established that the witnesses were friends of the defendant. Thus, Cardenas is distinguishable.
Lamson notes the trial court agreed at times that the gang evidence violated the court’s in limine ruling. Lamson complains of the trial court’s conclusion that its admonitions to the jury were a sufficient remedy. However, Lamson develops no analysis on this point, and we need not consider it further.
Lamson complains the prosecution used the ABZ evidence to refute his self-defense claim and “smeared” Lamson with the gang evidence. However, we need not address this indirect claim of prosecutorial misconduct because (1) it is improperly briefed under a heading claiming evidentiary error; (2) Lamson develops no argument and cites no authority regarding prosecutorial misconduct; and (3) he did not object to the prosecutor’s remarks on this ground in the trial court.
Sutter argues the admission of 430 pages of gang testimony, ostensibly on the issue of motive, which is not even an essential element, had the effect of impermissible propensity evidence making it likely the jury convicted defendants because of guilt by association with gangs. The focus of Sutter’s arguments is that the extensive gang evidence was more prejudicial as to him because, unlike Lamson and Bruce who admitted being present and shooting guns, there was no evidence that Sutter was even there, except for the testimony of “accomplices” (Lamson, Bruce, and John D.) whose testimony was suspect and uncorroborated. However, we reject post Sutter’s arguments that there was insufficient evidence of his presence at the scene.
Sutter’s appellate lawyer says she counted the pages, but she does not provide citations. She also says there were more than 200 pages of gang evidence from law enforcement officers, but she does not say whether these are in addition to or included in the 430 pages. We have not counted pages but acknowledge there was a lot of evidence about gangs.
Sutter argues the evidence that police validated him as a JVP member in 1998 was inadmissible because it was based on testimonial out-of-court statements made inadmissible by Crawford v. Washington, supra, 541 U.S. 36. However, as noted by the People (with no reply by Sutter), a similar contention was rejected in People v. Thomas (2005) 130 Cal.App.4th 1202, which rejected a defendant’s contention that his right to confront witnesses under Crawford was violated by the admission of hearsay evidence in the form of a gang expert’s conversations with gang members in which they identified the defendant as a gang member. (Id. at p. 1208.) The deputy testified he learned the defendant’s gang status and moniker through casual, undocumented conversations with other gang members. (Ibid.) Thomas said, “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ [Citations.] [¶] Here, the conversations with other gang members were mentioned only as a basis for [the gang expert’s] opinion that defendant was a gang member. There was no Sixth Amendment violation based on Kwan’s reliance on hearsay matters. [¶] Moreover, although no published California case has yet addressed whether Crawford applies to hearsay statements that are used not as direct evidence against the defendant but merely as the basis for an expert’s opinion, courts in other jurisdictions have . . . upheld such use. [Citations.] [¶] Thus, because the statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for an expert witness’s opinion, the confrontation clause, as interpreted in Crawford, does not apply.” (Thomas, supra, 130 Cal.App.4th at p. 1210.)
We recognize the testimony in this case came not only from gang expert Officer Winfrey, but also from other officers (Kang and Provencial). However, the testimony of Kang and Provencial was cumulative to the expert’s testimony and, although Sutter complains generally that there was too much cumulative gang evidence from law enforcement witnesses, Sutter makes no showing of prejudice if some but not all of the evidence of his own JVP membership were excluded. Moreover, Sutter admits on appeal, “Sutter never seriously disputed his ties to JVP and to Boy” but rather disputed his presence at the scene.
As indicated, Sutter’s main focus is on his argument that he was prejudiced by admission of the gang evidence because there was no evidence placing him at the scene, other than uncorroborated accomplice testimony. As indicated, we reject his accomplice argument, post.
We conclude defendants fail to show evidentiary error.
B. Claims of Instructional Error
1. Jury Instruction - Accomplices
Sutter contends the trial court erred by (1) failing to instruct the jury sua sponte that Lamson and Bruce were accomplices as a matter of law, and (2) rejecting Sutter’s request for a jury instruction that John D. was an accomplice as a matter of law. We see no basis for reversal.
Section 1111 provides that a defendant cannot be convicted on the testimony of an accomplice unless there is independent corroboration tending to connect the defendant with the commission of the crime. Section 1111 defines “accomplice” as one who is liable to prosecution for the same offense being charged against the defendant.
Section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
Here, the trial court instructed the jury on accomplices with specific reference to John D. only and left it to the jury to decide whether he was an accomplice.
The trial court instructed the jury: “An accomplice is a person who is subject to prosecution for the identical offense charged against the defendant on trial by reason of aiding and abetting. [¶] You cannot find a defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect that defendant with the commission of the offense. [¶] Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated out-of-court was true. [¶] To corroborate the testimony of an accomplice there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged. [¶] However, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged, or that it corroborate every fact to which the accomplice testifies. [¶] In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime. [¶] If there is no independent evidence which tends to connect the defendant with the commission of the crime, the testimony of the accomplice is not corroborated. [¶] If there is independent evidence which you believe, then the testimony of the accomplice is corroborated. [¶] The required corroboration of the testimony of an accomplice may not be supplied by the testimony of any or all of his accomplices, but must come from other evidence. [¶] Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or facilitating the commission of the crime is not criminal. Thus a person who assents to, or aids, or assists in, the commission of a crime without that knowledge and without that intent or purpose is not an accomplice in the commission of the crime. [¶] To the extent that an accomplice gives testimony that tends to incriminate a defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in this case. [¶] You must determine whether the witness John [D.] was an accomplice as I have defined that term. [¶] The defendant has the burden of proving by a preponderance of the evidence that John [D.] was an accomplice in the crimes charged against the defendant.”
a. Lamson and Bruce as Accomplices
Sutter contends the trial court erred in failing to instruct the jury sua sponte that Lamson and Bruce were accomplices as a matter of law. The People argue the court did not have a duty sua sponte, and Sutter forfeited this point by failing to raise it in the trial court and by failing to brief it under a separate heading on appeal. The last point is meritless because Sutter presents this contention in his opening brief on appeal under the heading that “[JOHN D.], LAMSON AND BRUCE WERE ACCOMPLICES AS A MATTER OF LAW,” with separate subheadings addressing John and Lamson/Bruce. That Lamson and Bruce (as codefendants) involve different considerations than John does not render the briefing inadequate.
Nevertheless, the trial court did not have a duty sua sponte, as argued by Sutter. The general rule imposing a duty sua sponte to give accomplice instructions (People v. Smith (2005) 135 Cal.App.4th 914, 928) does not apply where the accomplice is a codefendant--a situation where care must be taken not to prejudice the fair trial rights of the testifying codefendant. (People v. Terry (1970) 2 Cal.3d 362, 399.) When the testifying accomplice is a codefendant, an accomplice instruction must be given only when requested by the defendant. (People v. Box (2000) 23 Cal.4th 1153, 1209; Smith, supra, 135 Cal.App.4th at p. 928.)
Sutter argues for the first time in his reply brief that, if we conclude the court had no duty sua sponte to instruct that Lamson and Bruce were accomplices as a matter of law, then Sutter wants to raise a contention of ineffective assistance of counsel. We decline to entertain this argument because, by withholding it until the reply brief, defendant has deprived the People of the opportunity to address it. (People v. Dunn (1995) 40 Cal.App.4th 1039, 1055; People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.) Moreover, we note the prosecutor in rebuttal argument to the jury acknowledged the accomplice status of Bruce, stating that Sutter could not be arrested on the mere word of Bruce Phan “when we know Bruce Phan was an accomplice or an aider and abettor in this crime himself.”
We conclude Sutter fails to show any reversible error regarding accomplice instructions as to Lamson or Bruce.
b. John D.
As we have mentioned, the trial court instructed the jury that it should determine whether John D. was an accomplice. (Fn. 15, ante.) Sutter contends the trial court erred in refusing his request for a jury instruction that John was an accomplice as a matter of law (such that his testimony required corroboration). We disagree.
As indicated, section 1111 (fn. 14 ante) defines “accomplice” as one who is liable to prosecution for the same offense being charged against the defendant. This includes all principals in a criminal act. (People v. Tewksbury (1976) 15 Cal.3d 953, 960.) Criminal liability as a principal attaches to those who aid in the commission of a crime only if they also share in the criminal intent or abet the crime (i.e., encourage it with knowledge of the wrongful purpose). (Ibid.)
Whether a witness is an accomplice is a factual question for the jury unless the facts are undisputed and support only one inference. (People v. Brown (2003) 31 Cal.4th 518, 556-557; People v. Howard (1992) 1 Cal.4th 1132, 1174; Tewksbury, supra, 15 Cal.3d at p. 960.) Brown, supra, upheld the trial court’s decision that the witness was not an accomplice as a matter of law, where the witness testified that when he got in the car with the defendant and another person, he did not know they intended to steal someone’s wheel rims. (Id. 31 Cal.4th at p. 557.) He testified he found out about the plan once he was in the backseat of the car but did not agree to it. (Ibid.) Brown said the jury was free to disbelieve him, but the evidence sufficed to support the trial court’s decision that the witness was not an accomplice as a matter of law. (Ibid.)
In order to be an accomplice to murder and attempted murder as a matter of law, it is not enough for the person merely to be present at the murder scene with knowledge of details; the person must have aided and abetted the crime by knowingly promoting or encouraging it. (Lewis, supra, 26 Cal.4th at pp. 368-369; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1157-1159.)
Here, John said he was present at the park with a group of persons, at least some of whom were involved with JVP, when Boy told the group that the ABZ gang was having a party. The ABZ gang is a rival of JVP. John’s group left the park and went to the party. John testified that, before going to the party, he was aware (having been told by Boy) that Boy had been involved in a drive-by shooting at an apartment complex where ABZ gang members lived, and Boy had been involved in shooting at ABZ gang members there. (The trial court instructed the jury that this evidence was admitted for the limited purpose of Boy’s state of mind.) John was aware (as he later told the police) that Boy always carried a gun. The gang expert opined that armed JVPs would have only one purpose in going to an ABZ gathering -- to shoot somebody. Thus, it is logical to infer that John was privy to a plan to shoot people and went with the others to carry out the plan. Sutter’s attorney argued the only logical inference was that John went to back up the others.
However, there was conflicting testimony about the meeting in the park and the purpose of going to the party. Lamson testified he went to the party to pick up females and have a good time. Bruce testified he and Lamson were at the park with some females and, as they went to leave, literally ran into a car containing Boy, John, and Sutter. Boy, though mad about his car being hit, told them about the party, and they followed him there, though Bruce did not consider them to be together. Even if John met the others at the park and they planned to go shoot people, it is theoretically possible that the others at the park did not spell out their plan to John but understood each others’ intent as JVP members without having to state their plan. John testified that, even though he knew Boy had prior problems with ABZ, John was not concerned about going to an ABZ party, because Boy had never done any shooting when John was present, and as far as John knew, there was no plan to cause any trouble at the party.
There was also conflicting evidence about John’s conduct at the party. Bruce testified that John pulled out a gun and fired it and that John and Boy later threatened Bruce to keep his mouth shut. Witness Julie M., when asked at trial if she recognized the person in the courtroom dressed in the orange jumpsuit (John D.), said she thought he was the person who wore the pea coat at the party (whom she testified had a gun).
Bruce says another witness, N.D., also testified the person in the pea coat had a gun. However, Bruce’s citation to the record does not support this assertion. In any event, N.D. was unable to identify John D. in the courtroom. John D. testified at trial that he was wearing a jacket that night that was “like a pea coat.”
However, John testified he did not have a gun at the party. He also testified he was not JVP, and he ran towards the car when the shooting started.
Sutter argues John’s trial testimony was not worthy of belief. Certainly, John’s equivocations and conflicting statements raised questions about his credibility. Indeed, the trial court said outside the jury’s presence that it lost count of the number of times John said he lied, and John admitted to the jury that he had told so many lies about the incident, it was hard to remember what was true (though he expected people to believe his trial testimony because it was given under oath). Nevertheless, John’s trial testimony was not inherently improbable, and we cannot say as a matter of law that John had a gun at the party or went to the party knowing of and with the intent to aid a murder and attempted murder. A jury can find a witness credible in part, while rejecting other parts of his testimony. (People v. Williams (1992) 4 Cal.4th 354, 364.)
We disagree with Sutter’s argument that the fact John D. testified under a grant of immunity is evidence that the prosecutor considered him an accomplice as a matter of law.
We conclude the trial court did not err in leaving it to the jury to decide whether John was an accomplice.
Thus, Sutter fails to show instructional error regarding accomplices.
2. Jury Instruction - Motive
Sutter (with joinder by Lamson) claims the jury instructions invited the jury to convict him on the basis of gang affiliation alone. Even assuming the matter is not forfeited for failure to request a modification in the trial court, as urged by the People, we disagree.
The trial court gave the jury a special instruction (patterned after CALJIC No. 17.24.3), stating: “During the course of this trial, testimony has been received regarding the defendants relating to gang behaviors and possible gang memberships. [¶] This evidence, if believed, may not be considered by you to prove that a defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show motive. [¶] For the limited purpose for which you may consider this evidence you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose.”
The trial court then instructed the jury on motive (pursuant to CALJIC No. 2.51): “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.”
Sutter argues these two instructions together erroneously suggested that motive alone could establish guilt and gave the jury an “unconstitutional shortcut to conviction.” On the face of the instructions, Sutter’s point lacks merit.
Sutter acknowledges we look to the entire charge to the jury. (People v. Lewis (2001) 25 Cal.4th 610, 649.) Sutter acknowledges case law (e.g., People v. Snow (2003) 30 Cal.4th 43, 97-98 (Snow)) has rejected the argument that CALJIC No. 2.51 would be read by a jury as suggesting that proof of motive alone can establish guilt.
Sutter argues case law such as Snow, supra, 30 Cal.4th 43, is not controlling, because each case turns on the particular charge to the jury, and Sutter is claiming the problem in this case arises from comparison of CALJIC NO. 2.51 with all other “instructions covering individual evidentiary circumstances.” He says the motive instruction was the only instruction that informed the jury that a single circumstance “may tend to establish the defendant is guilty,” and other instructions about individual evidentiary circumstances (making false statements, attempting to persuade witnesses, procuring false evidence, suppressing evidence, prior conviction, flight, and expert opinion) included an admonition or otherwise made clear that it was insufficient to establish guilt.
Sutter cites People v. Owens (1994) 27 Cal.App.4th 1155 at page 1158, which found harmless error where the jury was instructed that the People had introduced evidence “tending to prove” that there were more than three acts of sexual misconduct upon which a conviction could be based. Here, however, the jury was instructed that presence of motive “may” tend to establish guilt, and it was for the jury to decide whether the adduced evidence tended to show motive. We accordingly distinguished Owens in People v. Anderson (2007) 152 Cal.App.4th 919, where we rejected a defendant’s challenge to the new motive instruction (CALCRIM No. 370). The defendant in Anderson pointed to several other instructions expressly informing the jury that certain evidence alone was insufficient for conviction, and the defendant argued the absence of a similar caveat in the motive instruction would lead the jury to think motive evidence was enough for conviction. (Anderson, supra, 152 Cal.App.4th at p. 943.) We disagreed because “[s]aying motive is a factor that may tend to prove guilt is a far cry from saying it is a factor that alone may prove guilt. The fact that evidence tends to prove guilt merely establishes its relevance on the issue.” (Ibid.) The same applies here.
CALCRIM No. 370 says, “The People are not required to prove that the Defendants had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the Defendants had a motive. [¶] Having a motive may be a factor tending to show that the Defendants are guilty. Not having a motive may be a factor tending to show the Defendants are not guilty.”
Sutter argues there was no proper motive evidence to support the instruction, because motive is “the emotional urge which induces a particular act” (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127), and evidence having a direct tendency to prove motive is admissible (People v. Gonzalez (1948) 87 Cal.App.2d 867, 877), but the evidence in this case had only an indirect and weak tendency to prove motive because it was “so dated.” We presume Sutter is revisiting his complaint that the police validation of him as a JVP member occurred in 1998, four years before the crimes at issue in this case (not five years as elsewhere stated by Sutter). However, the 1998 validation is not remote, given Sutter’s continued association with JVP members and the absence of any evidence that he quit the gang.
We conclude Sutter fails to show any instructional error regarding motive, and we therefore need not address his argument as to whether error was prejudicial.
3. Jury Instruction - Flight
Sutter argues the trial court erred in giving the jury a flight instruction (CALJIC No. 2.52) without advising the jury that it did not apply to him. We shall conclude Sutter fails to show grounds for reversal.
The trial court instructed the jury: “The flight of a person immediately after the commission of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
This instruction is compelled by section 1127c, which states: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient by itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given.”
When the trial court and counsel were discussing the jury instructions, Sutter’s attorney objected to the statutory instruction “in that it indicates flight immediately after the commission of a crime or immediately after an acquisition [sic: accusation] of the crime. [¶] And there’s no such evidence that . . . someone told [Sutter] you’re accused of a crime or that he fled or that he fled immediately after this one. There’s been -- you know, so far we have John [D.]’s, which if the jury finds an accomplice, that will require corroboration . . . . [¶] But I do object to that. And I think it will be unfairly used as to this beating of the bushes and the police looking for [Sutter]. I think the jury could misinterpret that as flight.”
The trial court ruled it would delete the reference to flight after being accused of a crime but would give the instruction as modified (flight immediately after commission of a crime) because “I think . . . there is some evidence that after the commission of the shooting, that allegedly -- and this is according to several witnesses, that the shooters all ran and got in the vehicles and took off.”
The trial court was correct, and Sutter’s claim that he was not present does not render the flight instruction improper.
We note the court also instructed the jury, “Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts.”
Sutter cites People v. Anjell (1979) 100 Cal.App.3d 189 at pages 199 through 200, and People v. Rhodes (1989) 209 Cal.App.3d 1471 at page 1476, for the proposition that a flight instruction should not be given where the identity of the perpetrator is contested. However, “[t]he court that decided People v. Anjell, supra, has since retreated from the overly broad dictum [that a flight instruction is erroneous whenever identity is a contested issue],” and other courts have similarly rejected the broad dictum. (People v. Mason (1991) 52 Cal.3d 909, 943.) If there is evidence identifying the person who fled as the defendant, and if such evidence is relied upon as tending to show guilt, then it is proper to instruct on flight. (Ibid.)
Here, many witnesses who were at the party testified the perpetrators fled the scene. Other evidence identified Sutter as one of the perpetrators. John identified Sutter as a person who fled from the scene (along with John himself).
We conclude Sutter fails to show any instructional error.
C. Sufficiency of Evidence
Sutter contends the evidence was insufficient to support the judgment against him. He argues the only evidence of his guilt came from his codefendants and from John, all of whom Sutter views as accomplices whose testimony required independent corroboration. Sutter argues that, aside from these three witnesses, there is no evidence that he was even at the scene of the crimes. He acknowledges there was evidence he was involved with the gang in 1998 and 1999, but he argues there was no evidence he was involved with JVP at the time of these crimes in October 2002 and, in any event, evidence of gang involvement cannot bootstrap him into a conviction when there was no evidence he was involved in or even present at these crimes.
Lamson testified he did not know Sutter well, but heard he used to be a JVP member, and Sutter said he left the gang (before these crimes) because he did not get along with the others. John indicated Boy was affiliated with JVP but Sutter was not. However, the gang expert opined Sutter was still a gang member at the time of these crimes.
Other than these three witnesses (John D. and codefendants Lamson and Bruce), no one testified they saw Sutter at the party. Indeed, one of the people who was shot testified he was acquainted with Sutter but did not see him at the party. Another witness, J.L., testified she saw Boy and John earlier that night in a parking lot. They followed her to the party to see where it was. She did not see any third person in Boy’s car (a black Honda). However, Boy and John did not stop at the party after being shown its location. They left and returned later. Thus, J.L.’s testimony does not establish Sutter’s absence.
One of the people who was shot, T.T., testified he knew Sutter but did not see him the night of the party. When asked if he would have known Sutter had he seen him, T.T. said, “I wouldn’t be so sure if that’s him or not.” T.T. also said he was not there long enough to see who was there, and he had been drinking. T.T. acknowledged he did not identify Sutter as one of the perpetrators in police line-ups; he did not really recognize Sutter in the line-ups and was not sure it was him. Outside the presence of the jury, Bruce’s attorney asked the court for permission to elicit how T.T. knew Sutter (from their confinement at Boys’ Ranch in 1999). Bruce’s attorney wanted to explore gang status, to explain why T.T. did not identify Sutter, because gang members do not turn on gang members. The prosecutor argued the questioning would be appropriate as another possible explanation, that T.T. did not recognize Sutter in street clothes, having seen him only in the Boys’ Ranch uniform. The court allowed the questioning. T.T. testified he knew Sutter from the Boys’ Ranch in 1999, where he got along with Sutter, who stated he used to be a gang member (of JVP) but no longer was. T.T. said he was not sure if he would have recognized Sutter at the party “‘cuz I never seen him in street clothes before.” T.T. said he would have no reason to deny seeing Sutter if he had seen him and had no reason to protect or fear him. T.T. also testified he could not say whether Lamson and Bruce were at the party.
There appears to be merit to Sutter’s contention that there was no direct evidence placing him at the crime scene other than the statements of Lamson, Bruce, and John.
However, Sutter’s substantial evidence argument necessarily depends on his conclusion that John was an accomplice. We have explained John may or may not be an accomplice, and it was for the jury to decide. Sutter’s substantial evidence argument assumes the jury decided John was an accomplice.
However, “[i]f [a claim of] inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) Guiton held that, on appeal of a conviction rendered by a jury that was presented with alternate theories for conviction, one of which was factually inadequate (as opposed to legally inadequate), the appellate court should reject an insufficiency-of-the-evidence argument and affirm the judgment unless a review of the record affirmatively demonstrated a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory. (Ibid.) Guiton affirmed the judgment where the jury found the defendant guilty of selling or transporting cocaine, and there was insufficient evidence that he sold cocaine. (Ibid.) The sufficiency of the evidence to support the sale of cocaine was a purely factual issue, not a legal one, and the jury was as well equipped as the court to analyze the evidence and reach a rational conclusion, and the prosecutor concentrated his argument on the transportation theory. (Ibid.)
This case is similar to Guiton, supra, 4 Cal.4th 1116. Here, the prosecutor argued the jury should find John was not an accomplice (though the prosecutor said he would not tell the jury “absolutely beyond all doubt” that John was not an accomplice). The prosecutor also argued that, if John was an accomplice (and the codefendants were accomplices), there was sufficient corroboration in the evidence of motive, i.e., Sutter’s ties to Boy and JVP and their rivalry with ABZ.
We have concluded the jury could have found on this record that John was not an accomplice, hence his testimony did not need corroboration. Defendant’s conviction can be sustained on this factual theory. Even assuming for the sake of argument that there was insufficient corroborating evidence in the event the jury found John was an accomplice, there is no affirmative indication in the record that the verdict actually did rest on this inadequate ground.
We conclude Sutter fails to show grounds for reversal based on insufficiency of the evidence.
D. Denial of Severance
Sutter contends the trial court’s denial of his motion for severance violated his due process rights to a fair trial. We disagree.
Section 1098 states a legislative preference for joint trials. They promote economy and efficiency and serve the interests of justice by avoiding inconsistent verdicts. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40-43.) Joint trials are the rule, and severance the exception. (People v. Alvarez (1996) 14 Cal.4th 155, 189-190.) Separate trials are usually ordered only in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony. (People v. Box, supra, 23 Cal.4th at p. 1195.)
Section 1098 provides: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial.”
A trial court’s ruling on a severance motion is reviewed for abuse of discretion on the basis of the facts known to the court at the time of its ruling. (Box, supra, 23 Cal.4th at p. 1195.) If the ruling denying severance was correct when made, a judgment may still be reversed on a showing that joinder actually resulted in gross unfairness amounting to a denial of due process. (People v. Mendoza (2000) 24 Cal.4th 130, 162.) Reversal is appropriate only if a gross unfairness resulted from the consolidation. (People v. Greenberger (1997) 58 Cal.App.4th 298, 343.) Even where there are mutually antagonistic defenses, denial of severance does not necessarily deny a fair trial. (Zafiro v. United States (1993) 506 U.S. 534, 538 [applying federal rule similar to section 1098].) Even improper joinder does not violate the Constitution unless it results in prejudice so great as to deny a defendant his right to a fair trial. (United States v. Lane (1986) 474 U.S. 438, 446, fn. 8.)
Sutter presents no argument that the trial court abused its discretion based on the facts known to it at the time of its ruling. We therefore consider only whether there was gross unfairness implicating due process.
Sutter argues his constitutional rights were violated in several ways:
1. He says the evidence against Lamson and Bruce was strong, while the evidence against him was sparse. He says every percipient witness identified either Lamson or Bruce, but no one placed Sutter at the scene except Lamson, Bruce, and John D., whose testimony Sutter views as uncorroborated accomplice testimony. Sutter claims the enormity of evidence against Lamson and Bruce made it easy to forget that Sutter’s presence at the scene was based on untrustworthy evidence and painted him with the same broad brush as the others.
2. Sutter argues the focus of the evidence, argument, and instruction on the codefendants’ theory of the case -- self-defense -- made it easy to forget Sutter’s defense that he was not present and made it easy for the jury to apply their rejection of self-defense to all three defendants. Sutter complains that other instructions (e.g., voluntary intoxication and flight) did not apply to him, and either tarred him with the same brush as the other defendants or highlighted his lack of a defense.
3. Sutter complains that some evidence and argument hurtful to him came not from the prosecutor, but from codefendants’ counsel.
None of these arguments demonstrates grounds for reversal.
We note Sutter was not hurt by the insinuation of Bruce’s counsel that Sutter accidentally shot Lamson, because the jury found not true the allegations that Sutter used a gun.
Sutter says this case is similar to People v. Chambers (1964) 231 Cal.App.2d 23, where we held that a joint trial resulted in defendant Chambers being convicted by association with a codefendant. There, however, there were separate charges involving distinct and unconnected offenses. Thus, Chambers was the new owner of a nursing home. The codefendant, Spitler, was the prior owner who stayed on as supervising nurse after she sold the business to Chambers. Chambers and Spitler were charged with separate assaults on a patient on a date on which they claimed they were not present. Spitler was additionally charged with three other counts of separate assaults on the patient at other times, during which she admitted her presence but said she was engaged in reasonable handling of patients. (Id. at pp. 30-31.) The evidence portrayed Spitler as a cruel and brutal person -- evidence which was admitted only because she was on trial for offenses unrelated to that charged against Chambers. (Id. at pp. 26-28.) There was no charge of conspiracy. The extensive evidence of Spitler’s brutality tended to fasten Chambers, as her employer, with moral responsibility. (Id. at p. 29.)
Here, in contrast to Chambers, all defendants were charged with the same offenses. Thus, Chambers does not compel reversal in this case.
We conclude Sutter fails to show grounds for reversal based on denial of his severance motion.
E. Claim of Prosecutorial Misconduct
Sutter argues the prosecutor committed constitutional error by commenting in closing argument to the jury that Sutter did not testify. We shall conclude reversal is not required.
It is improper for a prosecutor to ask the jury to treat a defendant’s silence as evidence of guilt. (Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106] [prosecutor stated to jury that the defendant must have known what the disputed facts were but refused to take the stand to deny or explain them].) Such comment intrudes on the defendant’s right to remain silent. However, the prosecutor has the right to comment on the state of the evidence or on the defense’s failure to introduce material evidence. (United States v. Robinson (1988) 485 U.S. 25 [99 L.Ed.2d 23] [prosecutor’s comment that defendant could have testified did not violate privilege against self-incrimination, where comment was fair response to argument by defense counsel that the government had not allowed the defendant to explain his side of the story]; People v. Turner (2004) 34 Cal.4th 406, 419.) Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, the privilege against compulsory self-incrimination is violated. (Robinson, supra, 485 U.S. at pp. 31-34.) But where the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by the defendant or defense counsel, there is no violation. (Ibid.) If Griffin error occurs, the standard of prejudice is whether the error was harmless beyond a reasonable doubt. (People v. Guzman (2000) 80 Cal.App.4th 1282.) “‘[B]rief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom are uniformly held to constitute harmless error.’ [Citation.]” (Turner, supra, 34 Cal.4th at pp. 419-420.)
Here, in the prosecutor’s rebuttal argument to the jury, the prosecutor responded to a defense argument that John’s statement that the group went to the party for gang purposes was not supported by any of the participants. The prosecutor argued to the jury:
“[The defense argued that] [b]esides John [D.], nobody else said that they were going to the party for this ABZ purpose. Well, yeah. Let’s see who was there? Bruce Phan. Oh, yep. Yep. He didn’t tell us that, did he?
“Lamson Pham; did he? Oh. He didn’t tell us that so it must not be true, right?
“Sutter Nguyen; you know what? Unless something has changed recently, I don’t think I can call him to the stand.
“Boy. Oh, Boy’s dead.
“Who does it leave? John [D.] It leaves John [D.] telling us things that John [D.] has no reason to lie about.”
The prosecutor went on to argue the defense had failed to meet its burden to prove by a preponderance of evidence that John D. was an accomplice.
At the next break, Sutter’s attorney asserted the prosecutor committed Griffin error by commenting on defendant’s failure to testify, an error which defense counsel claimed was compounded by the prosecutor’s argument that the defense failed to meet its burden of showing John was an accomplice.
The trial court ruled: “While it may to some extent constitute Griffin error -- error I’m going to find that this is what constitutes an indirect, mild reference. [¶] Because at the point in time [the prosecutor] made that comment, he didn’t suggest in any manner that the jury can infer that Mr. Nguyen was guilty based on his failure to . . . testify. Um, I am gonna admonish the jury to disregard that. [¶] And furthermore, um, I -- I don’t think that throughout this trial that [the prosecutor] has engaged in a pattern of conduct so egregious that it infected the trial or infected [Sutter] or anyone else’s trial with such unfairness as to make -- make it so that any of these defendants were denied due process.”
The court admonished the jury that “earlier during [the prosecutor’s] argument he made a reference -- and I believe the reference was something to the effect that unless I miss my guess I can’t call Sutter Nguyen to the stand. [¶] Okay. That’s improper argument, and I’m going to strike that from the record. Treat it as though you had never heard of it. [¶] Okay. So once again, that’s one of those things that will be stricken from the record, and you are not to consider it in any manner whatsoever during your deliberations. [¶] And, in fact, I will instruct you on a defendant’s right not to testify. [¶] Do you understand that?
“THE JURY: Um-hmm.
“THE COURT: All right. Everyone’s nodding their head up and down like a bobble head doll. [¶] All right. Great. All right. Good.”
Defendant cites Guzman, supra, 80 Cal.App.4th 1282, which reversed a conviction for hit-and-run driving and assault arising from an automobile collision and ensuing altercation, where the prosecutor during closing argument emphasized that the other driver had cooperated with the police and had testified under oath, but the defendant had not cooperated. (Id. at p. 1286.) Although the prosecutor did not expressly comment on the failure to testify, he impliedly invited the jury to consider the failure to testify as proof of guilt. (Id. at pp. 1288-1289.) The prosecutor’s references were frequent and intense, and the jury reached a split verdict, indicating its doubts as to the other driver’s credibility--the very issue emphasized by the prosecutor. (Id. at p. 1290.)
Here, in contrast to Guzman, there was only one “brief and mild reference[] to [Sutter’s] failure to testify, without any suggestion that an inference of guilt be drawn therefrom;” the trial court instructed the jury to disregard the comment; and accordingly any Griffin error was harmless. (Turner, supra, 34 Cal.4th at pp. 419-420.)
F. Denial of Motion for Mistrial
Sutter contends the trial court erred in refusing to grant a mistrial after prejudicial hearsay was admitted that he was on the run for murder. We shall conclude Sutter fails to show reversible error.
As we have mentioned, during trial, a transcript of John’s videotaped police interview was given to the jurors, and during John’s testimony, portions of the videotape were played for the jury.
On cross-examination of John, Bruce’s lawyer asked if Boy told John that he (Boy) was “on the run for a murder.” John said yes. John thought Boy was referring to the incident at the party because, even though there was another shooting, the other shooting happened more than a year earlier.
We note the trial testimony at this point was merely that “he” (Boy) was on the run, not that “they” (Boy and Sutter) were on the run.
Sutter’s attorney moved for a mistrial, arguing the jury had been given an unredacted transcript of John’s police interview which included John’s statement that he saw Boy and Sutter at Jamba Juice and they indicated they were on the run. The failure to redact violated the court’s in limine ruling that there would be no mention of Sutter’s being on the run or being on parole.
The unredacted transcript included the following:
“Detective #1: Oh. So him and Boy were together then?
“[¶] . . .[¶]
“. . . Were they on the run then, do you know?
“John [D.]: Yeah.
“Detective #1: They were? How do you know they were on the run?
“John [D.]: Because they told me.
“Detective #1: Okay. Did they tell you why they were on the run?
“John [D.]: They said, uh, for that murder case, I guess.
“Detective #1: Uh-huh. Okay. So they were both on the run, at least they told you, because of the murder.
“John [D.]: Yeah. And I didn’t know - but Sutter told me was [sic] on for parole.
“Detective #1: That he was on the run for - from parole?
“John [D.]: Yeah.
“Detective #1: Okay.
“Detective #2: Oh. Okay. So is Sutter on the run for the murder or par - parole or both?
“John [D.]: He - probably both. He just told me parole.
“Detective #1: But Boy told you he was running from this murder case?
“John [D.]: Yeah.”
This Jamba Juice incident was the subject of an in limine ruling, in which the trial court ruled evidence could be adduced that John said Boy said that he (Boy) was on the run for murder, but the court excluded as speculation the portion of the interview in which John ambivalently indicated that Boy or Sutter may have indicated that Sutter was also on the run for murder and/or because of a parole violation. The court said Boy’s statement was against penal interest and did not run afoul of Crawford, supra, 541 U.S. 36, because it was not testimonial. The trial court told the prosecutor: “I’m not going to allow you to question [John] concerning Sutter Nguyen being on the run because that’s too speculative. And that’s prejudicial. So I’m going to exclude it under Evidence Code Section 352. It’s more prejudicial than probative.”
Apparently through inadvertence, the prosecution failed to delete the excluded evidence from the transcript of the police interview of John (and apparently from the videotape). Apparently through inadvertence, Sutter’s attorney did not notice the problem until after the transcript was given to the jury during trial.
Sutter’s counsel, in moving for a mistrial, noted the prosecutor gave the jury copies of the transcript of John’s police interview without redacting the Jamba Juice references to Sutter’s being on the run or being on parole.
The trial court noted it would have been prudent for defense counsel to check the transcript earlier to make sure all excluded parts were redacted.
The court denied the mistrial motion but said the court “agree[d] that the Jury heard evidence that the Court ruled was inadmissible” and would admonish the jury. The court ordered redaction of the tape/transcript and admonished the jury that “before the [break] we were listening to the transcript. And during the, um, course of listening to that transcript unfortunately you heard some evidence that was the subject of a pretrial ruling that I had made. [¶] And let me say this at this time. The evidence related to the portion of the transcript dealing with an allegation that defendant Sutter Nguyen was on parole. [¶] Now, Ladies and Gentlemen, you are to totally disregard that particular portion of the transcript. [¶] So any reference to Sutter Nguyen being on probation [sic] you’re to disregard that. Put it out of your minds, and it’s not to enter into your deliberations in any manner. [¶] Is there anyone who cannot or will not follow that instruction? [¶] All right. And -- and just for your edification, at the appropriate time both the videotape that will be sent into the jury deliberation room with you, as well as any help you need via the transcript, the transcript will be edited at the appropriate time. [¶] But let me again remind you that the transcript is not evidence. The evidence is the videotape. And that portion of the videotape unfortunately we should have excised that at the outset, it wasn’t excised. But you’re to totally disregard that portion about Sutter Nguyen being on parole.” The court read for the jury the instruction that the jury was to disregard evidence stricken by the court.
The court said nothing about disregarding the reference to Boy saying “they” were on the run for “murder,” but Sutter’s attorney did not complain the admonition was deficient.
On appeal, Sutter complains the court’s admonition to the jury mentioned only parole and was therefore insufficient. However, this point could have been easily cured had Sutter pointed it out to the trial court. Having failed to do so, Sutter cannot rely on it as a basis to reverse his judgment.
On appeal, Sutter contends that the admission that “they” were “on the run” from “this murder case” should never have come in, either by videotape or transcript, because it was multiple hearsay, inflammatory, prejudicial, and violated the right to confrontation pursuant to Crawford, supra, 541 U.S. 36, because the deceased Boy could not be cross-examined. Sutter argues he is entitled to reversal under the Chapman standard but, even if Watson is the appropriate standard, he is still entitled to reversal.
However, Sutter overstates what happened. The actual trial testimony was merely that “he” -- Boy -- was on the run for murder. Although the jurors had the transcript, there is no indication that anyone directed their attention to pages 85 and 86 of the transcript, where the objectionable matter appeared. Similarly, there is no indication the videotape was played for the jury at that time. The videotape was redacted before it was requested by the jury during deliberations. Although the trial court apparently allowed the trial to proceed with the unredacted transcripts in the jurors’ possession, Sutter did not expressly request that they be collected, and we presume the jurors followed the court’s instruction.
Thus, Sutter fails to show the jurors ever saw or heard the objectionable matter.
Even assuming some or all jurors read the objectionable portion of the transcript, John’s recounting of the conversation at Jamba Juice was muddled and ambiguous and, on its face, uncertain as to whether Sutter was on the run or why. Indeed, John testified at one point during the trial that the conversation at Jamba Juice never happened, he made it up. However, John later testified that at some point Boy told him that Boy was on the run for murder.
Accordingly we reject Sutter’s argument that reversal is required.
G. Joinder
Sutter says he joins in all contentions raised by Lamson and Bruce “which may accrue to his [Sutter’s] benefit . . . includ[ing] Arguments I. [jury selection], II [gang evidence], and III [hold-out juror] advanced by [Lamson].” As revealed by our discussion, post, the contentions of Lamson and Bruce do not assist Sutter.
H. Cumulative Error
Sutter argues the cumulative impact of errors denied him due process and a fair trial. After reviewing all contentions by all defendants, we conclude there is no cumulative error warranting reversal of Sutter’s judgment.
II. The Appeals of Lamson and Bruce
We have already, in our discussion of Sutter’s appeal, addressed and rejected the contentions of Lamson and Bruce regarding admission of gang evidence.
We next address the contentions of Lamson and Bruce regarding jury selection and a “hold-out” juror. We shall then address Lamson’s individual contention about sentencing and Bruce’s individual contentions about exclusion of exculpatory evidence and a motion to discharge counsel.
A. Jury Selection
Defendants contend their federal and state constitutional rights to an impartial jury were violated by the trial court’s denial of their Batson/Wheeler motions (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) [overruled in part by Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129]]), which claimed the prosecutor was exercising peremptory challenges on the impermissible basis of race/ethnicity and gender. We shall conclude there is no basis for reversal.
1. Background
On November 9, 2005, Bruce made a Wheeler motion (with joinder by Lamson and Sutter, who also invoked Batson), claiming the prosecutor was systematically exercising peremptory challenges to remove minority prospective jurors -- specifically:
Some of the parties use the prospective jurors’ full names, and the People note the statute protecting juror’s identities does not apply to prospective jurors. We see no need to use surnames.
b. Irene M. (believed to be Hispanic);
c. Amber D. (believed to be Hispanic);
d. Wanda S. (Asian); and
Lamson’s appellate brief says the initial motion also addressed a prospective juror “A.M.,” but it did not.
Defense counsel asserted all remaining prospective jurors in the box, except one, were Caucasian. The trial court found the defense had made a prima facie showing and asked the prosecutor to explain his reasons for excluding the minority jurors.
The prosecutor explained his reasons: Jose R. said he was once stopped by police officers, who bent the truth about the encounter. Irene M. said she was raised in “the hood” and never had a problem, and the attitude with which she said that led the prosecutor to believe that she had special knowledge of gangs and had dealt with gang members and had no problem with gangs. Amber D. had a nephew serving a 25-year-to-life sentence for murder (thus she knew the penalty for murder) and had a relative involved in a self-defense issue (and self-defense was an issue in this case). Wanda S. indicated defendants’ faces and some of the names seemed familiar, and she knew Bruce’s attorney from church. Clem C. had been prosecuted and believed the jurors in his case were a “wanting to go home at 4:00 kind of jury,” so he just pled guilty even though he felt he was not guilty.
The trial court found the prosecutor’s reasons were neutral, plausible, and legitimate. The judge added he was expecting a defense motion based on exclusion of women, though he noted it would be impossible for the prosecution to exclude all women because most of the panel were women.
Later in the proceeding, defendants brought a second Batson/Wheeler motion and asked the court to reconsider its earlier ruling in light of the prosecutor’s exercise of peremptory challenges on prospective jurors Gilda B. (Hispanic) and Ms. M. (African American). The prosecutor noted he still had unused peremptory challenges but was ready to accept the jury with two African Americans and one Asian on it. The trial court acknowledged the make-up of the jury box was different this time. The prosecutor added, in light of renewal of the motion, an additional point concerning Amber D., questioning whether she was Hispanic and noting she was married and had a Spanish surname but was blonde and fair-skinned. The court opined she was not very fair-skinned, and her blonde hair appeared to be dyed, but in any event “that ship’s already passed us.”
The prosecutor explained his reasons for excluding the two new people. Gilda B. had a daughter with a DUI (which in itself did not bother the prosecutor) plus a brother-in-law who was prosecuted and convicted for serious offenses, including robbery and armed robbery at ATMs, three years ago, and Gilda B. attended those court proceedings. The prosecutor was not willing to accept her statement that she could be fair. As to Ms. M., she was a counselor at a college attended by Bruce and previously worked at a high school in South Central Los Angeles, where she had numerous contacts with gang members. She acted as an advocate for students against professors and had students who were murdered and students who committed murders and robberies. The prosecutor also noted Ms. M. told the court she would want to leave at 4:15 p.m. to get to a class she taught and, when the court said it could not accommodate her, she tilted her eyeglasses down and stared at the judge for several seconds. The prosecutor said he did not have confidence that she would not be a “little bit hostile” about having to serve on the jury.
The court asked if defense counsel wanted to comment, at which point Sutter’s lawyer said, “The only other thing I’d like to add in is the fact that most of the challenges appeared to be also women.” Lamson’s lawyer said the crimes involving Gilda B.’s brother-in-law were 15 years ago, not three (except a three-year-old case in which he was released), and Gilda B. said she felt he got what he deserved, and her demeanor was not as characterized by the prosecutor, and the prosecutor did not probe her feelings in depth. Lamson’s lawyer noted by way of contrast that the prosecutor did not use peremptory challenges on other prospective jurors who themselves had prior convictions -- one of which was a military criminal conviction for drug possession.
Lamson’s lawyer said, “I do want to add that I think on reflection that there has also been a systematic use of his -- of the prosecution’s p[er]emptory challenges to exclude women from this jury. [¶] I believe all but maybe two of his challenges have been to women. And all of the last I think five or seven have been to women. [¶] The only two that I recall that were male were Mr. [N.] who, you know, loved the Constitution and his guns, and and [sic] the other one was Mr. [G.] who was Hispanic.” The prosecutor said he also excluded Clem C. and Jose R. Defense counsel noted they were minorities.
Bruce’s appellate brief says it was all but three.
The judge observed he was the one who initially said he was expecting a defense motion based on exclusion of women, but as the judge looked at the panel, he realized there was a disproportionate number of women on the panel. Lamson’s lawyer said the judge was “provoking” him into moving to strike the panel as unrepresentative of the community. When the court asked if he was making such a motion, counsel said yes, but he retreated when the court said such motions need a showing of numbers. The court said it would entertain such a motion if brought by the defense (which did not happen).
The prosecutor said he intended to make the point made by the judge, that the panel was almost exclusively women.
The court noted the current make-up of the jury was five men and seven women, which “sort of, you know, waters down that whole argument about, you know, there being too many women because we do have five men and seven women.”
The prosecutor argued that, given the makeup of the panel, there was no prima facie case of gender bias.
The trial court agreed, concluding there was no prima facie showing of gender bias. The court repeated that the current constitution of the jury was five men and seven women. The court later added its recollection that it had granted hardship excuses to a lot of men.
Returning to the matter of racial/ethnic bias, the prosecutor explained why he kept on the jury the person with the military case, which was in essence a civil action seeking reinstatement of a 19-year military pension which was taken away for smoking marijuana, which the prosecutor thought was a harsh penalty and nowhere close to the armed robberies of Gilda B.’s relative. The only other possible criminal matters of persons currently in the jury box were DUIs, which the prosecutor did not view as an issue because they were not comparable to armed robberies, and he did not think someone with a DUI would say, “well, I had a DUI so I’m going to walk these guys on murder.”
The trial court stated it was satisfied that the questioning of prospective jurors had not been cursory. The court found the prosecutor’s reasons for excluding Gilda B. were genuine and legitimate, even though the prosecutor was mistaken about the dates, given that she had a family member involved in the criminal justice system for very serious offenses. The string of ATM robberies was 15 years ago, and the offender got out of prison three years ago. Gilda B. said she attended some of the court proceedings. The court found, based on Gilda B.’s answers, that the prosecutor had legitimate concerns which were the actual motivation for the exercise of the challenge. As to Ms. M., the court said it believed the prosecutor’s reasons for excluding her were neutral and plausible.
2. Analysis
A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of race, ethnicity or gender violates equal protection and the defendant’s right to trial by a jury drawn from a representative cross-section of the community. (People v. Avila (2006) 38 Cal.4th 491, 541.) “When a defendant believes his or her constitutional rights are being violated by the exercise of a peremptory challenge, Batson requires that the defendant ‘[f]irst . . . make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial [or other class] exclusion” by offering permissible [class]-neutral justification for the strikes. [Citations.] Third, “[i]f a [class]-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful [class] discrimination.” [Citation.]’ (Johnson v. California (2005) 545 U.S. 162, 168 . . . .) ‘It is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.’ [Citation.] The trial court is required to make a ‘“‘sincere and reasoned’”’ evaluation based on the circumstances before it. (People v. Reynoso (2003) 31 Cal.4th 903, 919.)” (People v. Hutchins (2007) 147 Cal.App.4th 992, 996-997, italics omitted.)
As we discuss post, the standard at the time of defendants’ trial was whether the defendants showed a reasonable likelihood of impermissible discrimination.
The trial court must determine not only that a valid reason existed but also that it actually prompted the prosecutor’s exercise of the peremptory challenge. (People v. Fuentes (1991) 54 Cal.3d 707, 720.) A trial judge is required to make a “‘sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.] When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.’” (People v. Stevens (2007) 41 Cal.4th 182, 193, citing People v. Silva (2001) 25 Cal.4th 345, 386.) The best evidence of whether a race-neutral reason should be believed is often the demeanor of the attorney who exercises the challenge, and evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within the trial judge’s province. (People v. Stevens, supra, 41 Cal.4th at p. 198.) Accordingly, we review the trial court’s ruling under a substantial evidence standard. (Alvarez, supra, 14 Cal.4th at pp. 196-197.)
Although Lamson’s opening brief indicated substantial evidence review (stating his position that the prosecutor’s reasons were unsupported by the record and/or inherently implausible), his reply brief cites federal cases for the asserted proposition that we must review the prosecutor’s explanations de novo. We need not consider new arguments raised in the reply brief but note the federal cases indicated de novo review of the second step of the analysis, whether the prosecutor’s stated reason is race-neutral on its face. (United States v. McCoy (9th Cir. 1994) 23 F.3d 216, 217.)
Defendants contend that a recent opinion of the United States Supreme Court -- Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] -- now requires appellate courts to engage in comparative juror analysis, in contrast to the prior California rule of People v. Johnson (1989) 47 Cal.3d 1194. The parties note the issue is currently pending in the California Supreme Court (People v. Lenix (Jan. 2, 2007, F048115) [nonpub. opn.] review granted Jan. 24, 2007). In recent cases, the California Supreme Court has elected to conduct such a comparative analysis rather than decide whether Miller-El compelled it to do so. (E.g., People v. Stevens, supra, 41 Cal.4th 182, 196.) We will do the same.
a. Race/Ethnicity
Defendants contend the record shows the prosecutor’s reasons for excluding minority jurors was pretextual. We disagree.
i. Jose R.
As indicated, the prosecutor’s stated reason for exclusion of Jose R. was that he said he had been stopped by the police who “bended [sic] the truth.”
We disregard the Attorney General’s unsupported and facially defective claim that the prosecutor’s quotation of Jose R.’s words “bended [sic] the truth” meant the prosecutor was concerned about Jose R.’s ability to understand English.
Defendants argue the prosecutor’s reason was mere pretext because, although Jose R. did say he was involved in a car crash while drunk and police “bended [sic] the truth just [a] little bit,” he also said he got what he deserved, was satisfied, had learned a lesson, and would be fair to both sides in this case.
However, the prosecutor was not required to accept on its face the prospective juror’s assertion of impartiality and open-mindedness, despite his accusation that law enforcement officers lied. Defendants cite no authority supporting their position. To the contrary, a prospective juror’s negative feelings about law enforcement may be a valid basis for exercising a peremptory challenge. (People v. Johnson (1989) 47 Cal.3d 1194, 1215-1218.) Although Jose R. was not as negative as the prospective jurors in Johnson, he did not need to be in order for the prosecutor to have a valid, non-discriminatory ground for excusing him.
Defendants add that Jose R. later revealed he owned a firearm and came from a family which hunted. Defendants fail to show how that helps their case.
Defendants claim the trial court was wrong when it said the prosecutor had adequately questioned Jose R. about the issues troubling the prosecutor. However, what the trial court said was: “The questioning of all these jurors certainly by the Court has been rather extensive. And I will note that in various forms counsels’ questioning of the jurors have [sic] been quite extensive as well. [¶] And -- and I do want to note that particularly [the prosecutor’s] questioning of the jurors or at least some of the jurors, have -- has been -- has been quite, quite extensive. He’s gone into a number of things with several of the jurors. [¶] And I -- I will note that the areas that the prosecutor covered relative to the five affected jurors that [defense counsel] mentioned, those were areas that [the prosecutor] went into quite a bit. It wasn’t as though he went into it in limited fashion. You know, he kind of he [sic] kept going into certain areas.” Thus, the trial court was speaking of the prospective jurors as a group. Even assuming the prosecutor never asked any specific questions of Jose R., that does not demonstrate grounds for reversal. The trial court adequately questioned Jose R. Moreover, the prosecutor was not required to probe after Jose R. accused law enforcement officers of lying.
Defendants fail to show grounds for reversal with respect to Jose R.
ii. Irene M.
The prosecutor said he excluded Irene M., not merely because she said she was raised in “the hood” and never had a problem with gangs, but because the attitude with which she said it led the prosecutor to believe that she had special knowledge of gangs and had dealt with gang members and had no problem with gang members.
Defendants claim Irene M. said her awareness of gangs came from hearing her mother and other women discuss having seen gang members in stores. However, what she said was that, as she was growing up, she knew individuals who were allegedly in gangs. When asked if she had personal experience with gang members, she said, “Not per s[e] that they did this or -- or but, you know, you sort of knew neighborhoods because maybe the mothers would -- would discuss it with -- with other mothers. They might have seen them at the grocery stores or something like that.”
Defendants say the record does not support the prosecutor’s assertion that Irene M. had special knowledge or had dealt with gangs. They also cite Irene M.’s statement that her experience would not affect her ability to be fair, nor would it cause her automatically to believe or disbelieve testimony of gang members or associates.
However, defendants neglect to acknowledge that the prosecutor, in giving his reasons regarding Irene M., pointed not only to her words, but also her “attitude.” This was a matter for assessment by the trial court, which had the opportunity to observe the prospective juror. The court implicitly accepted the prosecutor’s view.
Defendants contend the prosecutor’s reasons regarding Irene M. were a sham, because the prosecutor kept on the jury two persons (Jurors 7 and 11), each of whom had experience with or exposure to gangs at least as extensive as Irene M. Again, defendants fail to acknowledge the prosecutor’s reference to Irene M.’s attitude, which is a matter for the trial judge who observed her, not for a reviewing court working with a cold record.
Defendants fail to show grounds for reversal with respect to Irene M.
iii. Amber D.
The prosecutor excluded Amber D. because she had a nephew serving 25 years to life for murder (thus she knew the penalty for murder) and had another nephew involved in a shooting who was not charged because the prosecution concluded he acted in defense of his mother during a domestic violence incident. The prosecutor noted self-defense was an issue in this case.
Defendants argue Amber D. was not that close to either nephew’s case, and the self-defense case was 15 years ago, and she said she could remain impartial. Defendants contend Amber D. had other facets that would make her seem to be pro-prosecution, i.e., she had been a victim of several crimes and had a brother-in-law who was a prison guard. Again, however, the prosecutor was not required to come to the same assessment as defendants.
Defendants argue by comparison that the prosecutor allowed to remain on the jury persons who had been convicted of crimes or had friends convicted of crimes. One juror had two DUIs, another had a dishonorable discharge for marijuana, and another had a friend who was shot and killed and the defendant asserted self-defense.
However, none of these jurors knew anyone serving prison time for murder. Knowing a murder victim is different than knowing a murderer. Moreover, the prosecutor adequately explained he did not consider DUIs or marijuana use significant enough to prejudice a juror against the prosecutor in a murder case.
Thus, even assuming Amber D. was a minority, defendants fail to show grounds for reversal with respect to her.
iv. Wanda S.
Wanda S. said the defendants’ faces and some of the names seemed familiar, and she knew Bruce’s attorney from church. The prosecutor said, “I was not gonna wait and see mid-trial when it came to her or she ended up recognizing somebody, how those chips had fall [sic], so she was excused.”
Defendants argue there were other facets of Wanda S. that might favor the prosecution, i.e., she knew police officers socially, her brother-in-law was an assault/robbery victim, she was a burglary victim, the school where she worked had been tagged with gang graffiti, and she had knowledge of gangs from gang prevention workshops.
None of this undermines the prosecutor’s undeniably valid reason that this juror knew one of the defense attorneys from church.
v. Clem C.
The prosecutor explained he excused Clem C. because he had been prosecuted and believed the jurors in his case were a “wanting to go home at 4:00 kind of jury,” so he just pled guilty even though he felt he was not guilty.
Defendants point out Clem C. also said he blamed himself for his legal troubles, in that he was accused of carrying a concealed weapon without a permit after he placed a gun in his garment bag to hide it from his toddler son and forgot about the gun until it triggered the metal detector at the airport. Defendants also note Clem C. was an auditor with the Environmental Protection Agency, had previously served on a jury, had a sister who was a judge, and had relatives who worked at the Department of Justice and District Attorney’s Office.
None of these points renders pretextual the prosecutor’s explanation. Although Clem C. blamed himself, he disparaged his jury and indicated resentment about his criminal conviction.
vi. Gilda B.
The prosecutor explained his reasons for excluding Gilda B.: She had a brother-in-law who was convicted of serious offenses, including robbery and armed robbery at ATMs, three years ago, and Gilda B. attended those court proceedings. The prosecutor was not willing to accept her statement that she could be fair.
That the robberies were 15 years ago rather than three is of no consequence, since the trial court concluded it was a mistake by the prosecutor rather than an intentional misrepresentation, and the crimes were serious. Contrary to the defense argument, the prosecutor did not place “great emphasis” on the year the crime was committed. Defendants assert the prosecutor did not probe Gilda B. to the same depth as the person with the military discharge; Gilda B.’s cousin worked in law enforcement; and Gilda B. said she believed her felon brother-in-law got what he deserved.
None of these points demonstrates reversible error. Lamson cites People v. Turner (1986) 42 Cal.3d 711 at page 727, for the proposition that a prosecutor’s failure to engage prospective jurors in more than desultory voir dire is a factor supporting an inference that the challenge was based on group bias. However, that statement in Turner related to the prosecutor’s explanation that he excused a Black prospective juror because she said she could not sit impartially because she was a mother of children. (Id. at pp. 726-727.) The Supreme Court observed her comment was much more ambiguous and was unexplored by the prosecutor. (Ibid.) Here, in contrast, it is undisputed that the prospective juror had a brother-in-law who was convicted of armed robberies. This fact in itself justified the prosecutor’s decision, and he was not required to take up court time in useless probing. We note the voir dire consumed over 1,000 pages of transcript.
vii. Ms. M.
As to Ms. M., the prosecutor said she was a counselor at a college attended by Bruce and previously worked at a high school in South Central Los Angeles, where she had numerous contacts with gang members. She acted as an advocate for students against professors and had students who were murdered and students who committed murders and robberies. The prosecutor also noted Ms. M. told the court she would want to leave at 4:15 p.m. to get to a class she taught and, when the court said it could not accommodate her, she said, “oh, I heard you,” tilted her eyeglasses down and stared at the judge for several seconds. The prosecutor did not have confidence that she would not be a “little bit hostile” about having to serve on the jury.
Defendants note: Ms. M. had served on a criminal jury which reached a verdict; her brother used to be a state police officer; she had gang training as a teacher and gang members as students; and she had former students in Los Angeles who were victims of crime involving gangs.
None of these points demonstrates grounds for reversal. The trial judge was in the best position to assess the prosecutor’s point about Ms. M’s attitude.
We conclude defendants fail to show that the prosecutor impermissibly excluded jurors on the basis of race or ethnicity.
b. Claim of Gender Bias
Defendants contend (in an argument made by Bruce with joinder by the others) that reversal is required because the trial court (1) applied the wrong legal standard in determining whether a prima facie case of gender discrimination had been shown; and (2) erroneously assumed that a balance of men and women on the jury, as finally constituted, defeated the prima facie showing. We disagree.
At the time of defendants’ trial, the California standard for a prima facie case was whether it was “more likely than not” that the peremptory challenges, if unexplained, were based on impermissible group bias. (People v. Johnson (2003) 30 Cal.4th 1302, 1306.) This standard was subsequently overruled by Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129], which held the appropriate standard is whether sufficient evidence is produced to permit the trial judge to draw an inference that discrimination has occurred.
People v. Bonilla (2007) 41 Cal.4th 313, indicated in a case where the trial preceded the United States Supreme Court Johnson decision, that where it was unclear whether a trial court applied the correct “reasonable inference” test rather than the “strong likelihood” test, the California Supreme Court reviewed the record independently to apply the high court’s standard and resolve the legal question whether the record supported an inference that the prosecutor excused a juror on a prohibited discriminatory basis. (Bonilla, supra, 41 Cal.4th 313, 342.) In Bonilla, the trial court concluded the defendants failed to make out a prima facie case of discrimination. (Id. at p. 341.) Bonilla held there was no Wheeler/Batson violation in the prosecutor’s use of 67 percent of its strikes on women, where the pool consisted of 38 percent women (30 women/48 men) but after deducting men who were excused for hardship or never called into the box, etc., the pool the prosecutor had the opportunity to challenge was 47 percent female; the prosecutor used 20 strikes on women (and 10 on men), while the defense used five strikes on women (and 25 on men); and the final jury was 42 percent women (five out of 12). (Id. at pp. 345-346 [ultimate jury composition is a factor to be considered in evaluating a Wheeler/Batson motion].)
Here, reviewing the record independently, we conclude the record does not support an inference of gender bias. Defendants fail to offer any mathematical analysis. They merely assert the prosecutor used 12 of 15 challenges against women, including his last seven challenges. However, they fail to show what percentage of the pool were women and fail to refute the observations of the trial court that the pool was mostly women.
Defendants contend the trial court erred in concluding that a prima facie showing was defeated by the presence of seven women in the jury box. Defendants cite United States v. Bishop (9th Cir. 1992) 959 F.2d 820, which rejected a claim that a “proportionally representative” jury validated apparent discrimination against Blacks. However, as defendants acknowledge, Bishop said a proportionally representative jury was relevant to the determination whether a prima facie case had been made. As we have noted, Bonilla, supra, 41 Cal.4th at page 346, said the same thing. Here, the trial court considered the balance of the box in determining there was no prima facie case. Thus, defendants have no legal support for their argument.
We note defendants argue the trial court’s comments about the balance of men and women in the jury box are susceptible of only two interpretations: (1) the court did not believe a disproportionate number of challenges was being used against women (which defendants claim cannot be reconciled with the fact that the last seven challenges were to women), or (2) gender bias was acceptable as long as the ultimate jury composition reflected a cross-section of the community. However, it is evident from the record that the trial court found no prima facie case not because of the make-up of the jury box but because of the make-up of the jury pool, which was mostly women. Defendants cannot show a disproportionate removal of women because they fail to identify what proportion of the pool were women (and they failed to challenge the pool itself as unrepresentative of the community).
We conclude defendants fail to show any grounds for reversal relating to jury selection.
B. “Hold-Out” Juror and Deadlock
Lamson and Bruce complain the trial court improperly handled the matters of a hold-out juror and a deadlock, which under the totality of circumstances were coercive. We disagree.
1. Background
Jury deliberations began on Monday afternoon, February 14, 2005. The following week, on Tuesday, February 22, 2005, the jury foreperson sent a note stating: “We need help. We have a juror who isn’t able to follow the law/unable to apply the facts or the law to the evidence.”
The jury deliberated part of the afternoon on the first Monday, all day Tuesday, all day Wednesday, and all day Thursday. They did not deliberate Friday because a juror was sick. The following Monday was a holiday.
The trial court noted that inability to follow the law was one of the grounds for dismissal of a juror under section 1089. After hearing counsel, the trial court, in reliance on People v. Cleveland (2001) 25 Cal.4th 466, decided to ask the jury foreperson three questions: (1) Is there a juror who has refused to follow the law; (2) Is the juror listening to or reading the instructions exactly as the court gave them; and (3) Who is the uncooperative juror? The court said it would then bring all the jurors into the courtroom and ask by a show of hands whether or not there was a juror who was refusing to follow the law. If the consensus was that such a juror existed, the court intended to question each juror individually, including the challenged juror, outside the presence of the others.
Section 1089 provides in part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged and draw the name of an alternate . . . .”
The court questioned the foreperson outside the presence of the other jurors. The foreperson said the jurors wrote the note together. The court asked whether there was a juror or jurors unable to follow the law and how many. The foreperson said yes, one juror. In response to the court’s questions whether that juror had listened to the instructions and was reading the instructions as given, the foreperson said, “I don’t believe so” and, “I don’t think so.” The court asked which juror, and the foreperson said it was Juror No. 12. (Juror No. 12 was the sole Asian on the jury.) The court asked if this juror made up his or her mind before deliberations, and the foreperson said not as far as she knew. In response to the court’s questioning, the foreperson said Juror No. 12 was not refusing to discuss the case and was “listening [to the other jurors]. He doesn’t interrupt or anything. He’s listening. I don’t think it’s processing.” The foreperson stated her belief that the juror was just not following the law as given by the court. The court excused the foreperson and told her not to say anything to the other jurors.
The court stated it did not want to rely on the opinion of the foreperson alone and would speak with the other jurors to safeguard defendants’ rights. Bruce objected to the process. (Lamson later objected the court’s questioning was excessive.)
The court called the jury in and reread CALJIC No. 1.00 on juror duties and CALJIC No. 17.40 on jurors’ individual opinions (over a defense objection that the instruction provided jurors with a vehicle to say that one juror was not following the law). The court refused a defense request to explain to the jury the distinction between following the law and disagreeing.
The court reread from CALJIC No. 1.00: “You must base your decision on the facts and the law. [¶] You have two duties to perform. First, you must determine what facts have been proved from the evidence received in the trial and not from any other source. A ‘fact’ is something proved by the evidence or by stipulation. A stipulation is an agreement between attorneys regarding the facts. Second, you must apply the law that I state to you, to the facts, as you determine them, and in this way arrive at your verdict and any finding you are instructed to include in your verdict. [¶] You must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions. [¶] You must not be influenced by pity for or prejudice against a defendant. You must not be biased against a defendant because he has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty. You must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the People and a defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences.”
The court reread CALJIC No. 17.40: “The People and the defendant are entitled to the individual opinion of each juror. [¶] Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [¶] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision. [¶] Do not decide any issue in this case by the flip of a coin, or by any other chance determination.”
The court then said to the jurors: “I need to know whether any of you feels that any other juror or jurors are not following the instructions that I just gave to you, that are not following the law, that are not deliberating and then are not considering others opinions. [¶] I need to see by a show of hands. Let me rephrase that. Lower your hands because I saw a quizzical expression on someone’s face, and I told you not to say anything. And that juror was following what I just said wasn’t anything -- anything [sic]. [¶] But what I need to know is this. In light of the two instructions that I just reread to you, having those in mind, is there anyone who feels that any other juror or jurors are not following those instructions that I just gave to you, that are not following the law, that are not deliberating and not considering others[’] opinions?” All jurors raised a hand except Juror No. 4.
The trial court questioned each juror individually outside the presence of the others, with an admonition not to discuss specifics and not to discuss the inquiry with the other jurors. Juror No. 4 said everyone was doing as the court instructed but he/she was not sure if everybody understood the instructions the same way, and maybe Juror No. 12 did not understand or just saw things a different way. The other jurors mainly agreed Juror No. 12 was participating in deliberations and exchanging ideas, but some said he was not following the instructions and the law. Some thought he was confused. One thought he “refuses to put the evidence and the law together as a reasonable person” and, in response to the court’s question whether Juror No. 12 had given the elements of the crime another interpretation or was refusing to follow the law in the instructions, said Juror No. 12 “interprets the law from a . . . [¶] . . . [¶] [g]ang perspective.”
The trial court then questioned Juror No. 12, who referred to himself as “following instructions and looking at the evidence and the facts and interpreting the law in a different way.” He said he was deliberating with the others, listening to their ideas and exchanging ideas. He said he accepted the instructions on the elements of the crimes. He had no problems with the law. He said, “when I look at the evidence and the facts and preponderance of the evidence and inferences of what it justifies and what it points to, I have to look at that as something real. It’s not what I feel. It’s not just because I think it should be that way. I have to apply the law to what the evidence shows.” He said he had no problem whatsoever, and the law and instructions were “very clear,” and “when I look at the facts and the evidence and what it pertains to and what is actually more reasonable, I apply what you instructed me.” The court admonished Juror No. 12 not to discuss their conversation with the other jurors. The judge said he did not want the juror to feel as though he were in trouble. The court asked if Juror No. 12 could retire for further deliberations and put this inquiry out of his mind, to which Juror No. 12 responded yes.
Outside the presence of all jurors, defense counsel agreed with the trial court’s assessment that no grounds existed to remove the juror, though Bruce’s lawyer said, “I think this whole process has a chilling effect on the individual juror. And I think without a doubt everybody knows who they’re talking about, and he knows that everybody’s talking about him. [¶] And I’m just [a] little concerned that if you don’t discharge him, ‘cuz I don’t want you to discharge him, what effect that’s going to have on further deliberations.” After further discussion, the trial court said, “I think the case law envisions this does have a chilling effect on jurors to some extent. [¶] But I also think that when you read the cases, the cases are pretty consistent with the manner in which the Court is required to conduct an inquiry. [¶] And in this particular case, I think I would have been remiss as a judge if it [sic] hadn’t conducted some inquiry to find out. Because essentially one after the other, you had jurors coming up here saying he didn’t follow the law. He’s not following the law. [¶] And . . . if you were talking about applicable issues or issues that would affect the defendant’s due process and what process is due. If you refrain from questioning these witnesses [sic], doesn’t that deny these defendants a certain process? [¶] And like I said, it could hurt the defendant. Maybe it iners [sic] to their benefit[]. I don’t know. But we at least have to find out. [¶] And the best way to find out is to question them. And what did we find out when we talked to sort of the golden edge [sic] was Juror Number 12. Oh, yeah. I have understand [sic] your law. I have no qualms with you[r] law. You heard me ask, can I give you any clarification? No. I don’t need any clarification. My interpretation is just different. [¶] That’s what the systems [sic] envisions. The systems [sic] envisions, perhaps we might not like it. But we have one person who can stand up and say you know what, my interpretation is just as reasonable as those other 11 people standing there. And that’s essentially what is -- he is saying to us. You know, that I’m sticking by my guns here.” The court reiterated it felt compelled to make the inquiry because the jurors’ note indicated someone was “unable to follow the law,” which is a ground for dismissal under section 1089.
The trial court called in the jury and again reread for the jury CALJIC No. 1.00 and No. 17.40 and also reread CALJIC No. 17.41 at the prosecution’s request and over defense objection. The jury resumed deliberations.
CALJIC No. 17.41 said: “The attitude and conduct of jurors at all times are very important. It is rarely helpful for a juror at the beginning of deliberations to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if shown it is wrong. Remember that you are not partisans or advocates in this matter. You are impartial judges of the facts.”
The next day, Wednesday, February 23, 2005, the jurors sent the court a note reporting their disagreement pursuant to CALJIC No. 8.75, which told the jury, “If you are unable to reach a unanimous verdict as to the charge in Count 1 of first degree murder, do not sign any verdict forms as to that count and report your disagreement to the Court.”
The court calculated the jury had spent about four full days deliberating. The court indicated it would give the instruction we approved in People v. Moore (2002) 96 Cal.App.4th 1105. Defendants objected and asked that if the court gave the instruction, it should change one thing: Instead of using Moore’s language that it was the jurors’ duty to arrive at a verdict if they could do so “without violence to your individual judgment,” the court should say it was their duty to arrive at a verdict if they could do so “without surrendering your individual judgment.” Nevertheless, on the following day, the trial court, after confirming the jury was deadlocked on the first degree murder in count 1, instructed with the language we approved in Moore, supra, 96 Cal.App.4th at pages 1118 through 1120, as follows:
“It has been my experience on more than one occasion that a jury which initially report[ed] it was unable to reach a verdict, was ultimately able to arrive at verdicts on one or more of the counts before it.
“To assist you in your further deliberations, I am going to further instruct you as follows:
“Your goal as jurors should be to reach a fair and impartial verdict, if you are able to do so, based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so.
“It is your duty as jurors to carefully consider, weigh and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors.
“In the course of your further deliberations, you should not hesitate to reexamine your own views or to request your fellow jurors to reexamine theirs.
“You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they’re wrong.
“Fair and effective jury deliberations require a frank and forthright exchange of views.
“As I previously instructed you, each of you must decide the case for yourself and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors.
“It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment.
“Both the People and the defendants are entitled to the individual judgment of each juror.
“As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate.
“May I suggest that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change [sic] the methods you have been following at least temporarily and try new methods. [¶] For example, you may wish to consider having different jurors lead the discussions for a period of time or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side’s position and vice versa. This might enable you to better understand the other’s position. [¶] By suggesting you should consider changes in your methods of deliberations, I want to stress that I am not dictating or instructing you as to how to conduct your deliberations. [¶] I merely find you may find it productive to do whatever is necessary to insure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
“I also suggest you reread CALJIC instruction 1.00 on page 1 and CALJIC instruction 17.40 on page 21 and CALJIC instruction 17.41 on page 21. [¶] These instructions pertain to your duties as jurors and make recommendations on how you should deliberate.
“The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by the instructions.
“CALJIC instruction 1.00 defines the duties of a juror. [¶] The decision the jury renders must be based on the facts and the law. [¶] You must determine what facts have been proved from the evidence received in the trial and not from any other source. [¶] A fact is something proved by the evidence or by a stipulation. [¶] Second, you must apply the law I state to you to the facts as you determine them and in this way arrive at your verdict. [¶] You must accept and follow the law as I state it to you regardless of whether you agree with the law. [¶] If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law you must follow my instructions.
“CALJIC 17.40 defines the jury’s duty to deliberate. [¶] The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the Court. [¶] These are the matters this instruction requires you to discuss for the purpose of reaching a verdict.
“CALJIC 17.41 is an instruction which recommends how jurors should approach their task.
“You should keep in mind the recommendations this instruction suggests when considering the additional instructions, comments and suggestions I have made in the instructions now presented to you.
“I hope my comments and suggestions may have [sic] some assistance to you.
“You’re ordered to continue your deliberations at this time.”
After further deliberations, the jury returned their verdicts later that day. As indicated, the jury found all three defendants guilty of second degree murder. The jury also found Lamson guilty of two counts of attempted murder with personal use of a firearm. The jury found Sutter guilty of two counts of attempted murder but found untrue the firearm allegations as to him. The jury found Bruce guilty of attempted murder of V.D. with personal firearm use, but the jury deadlocked as to Bruce on the charge of attempted murder of T.T.
2. Analysis
Defendants do not complain about the trial court’s decision not to remove Juror No. 12. Rather, they argue the trial court’s conduct, viewed under the totality of the circumstances, was likely to coerce the “hold-out” juror into changing his vote. (Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976, 979.) We shall conclude there is no basis for reversal.
The trial court must investigate reports of juror misconduct to determine whether cause exists to replace an offending juror with an alternate. (Cleveland, supra, 25 Cal.4th at p. 478.)
“[A] trial court’s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court’s instructions or otherwise committed misconduct, and that no other proper ground for discharge exists.” (Cleveland, supra, 25 Cal.4th at p. 485.)
“A refusal to deliberate [as a ground for removal of a deliberating juror] consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. [Citation.]” (Cleveland, supra, 25 Cal.4th at p. 485.)
Although the trial court in Cleveland used the procedure of questioning each juror individually, the validity of that procedure was not at issue in the Supreme Court’s opinion, the holding of which was that the trial court prejudicially erred in removing the juror because the record did not establish a refusal to deliberate.
We have reviewed the record and conclude the trial court handled the jury’s claim of juror misconduct in an appropriate manner. Although one juror indicated Juror No. 12 was looking at the case from a gang perspective, which suggested Juror No. 12 might favor the defense, the comment came out inadvertently and did not influence the proceedings. We see nothing in the court’s handling of the jury’s claim of juror misconduct which was likely to coerce any juror to change his or her vote. Indeed, we know the jurors felt free to disagree with each other after these proceedings, because the jury eventually deadlocked on one of the attempted murder counts with respect to Bruce, resulting in the court’s declaring a mistrial as to that count.
Bruce says the clerk’s transcript contains a “not guilty” verdict as to Bruce on the murder count, which appears to have been signed by the foreperson, but which bears the word “void.” Bruce develops no argument from this observation but simply says the assigned error regarding the hold-out juror applies with particular force to him. We see nothing in the record, and Bruce cites nothing, indicating the voided verdict was anything other than a mistake in filling out the wrong form.
Defendants say the totality of circumstances warranting reversal are: The jury’s deliberations over the course of many days before a problem arose; the court’s lengthy and intrusive investigation of the deliberations which effectively and publicly identified the only Asian on the jury as the sole juror leaning against conviction; the court’s repeated rereading of instructions; the court’s eventual “dynamite” instruction (which we shall call the Moore instruction) urging the deadlocked jury to reach agreement; and the fact the jury returned verdicts within hours of the Moore instruction.
However, defendants overstate their case. Although the defense suggests the jury deliberated more than a week before the first problem arose, the jury actually deliberated three days and a fraction of a fourth day -- a short time in view of the fact that the trial lasted months. It was not the court’s questioning which identified the “hold-out” juror, because the jurors wrote the note together and presumably knew whom they were talking about. Although the questioning of the jurors inadvertently revealed to the court and counsel which way the hold-out juror was leaning, the court’s restrained handling of the matter was neutral and non-coercive, and the rereadings of instructions were harmless. Although the verdicts were returned hours after the trial court confirmed the deadlock and read the jury the Moore instruction, the court gave the Moore instruction the day after the jury reported the deadlock. It is not uncommon for juries to benefit from an overnight respite from each other.
As to the instruction when the jury deadlocked on the degree of murder, defendants acknowledge the trial court instructed the jury with language used by the trial court in a case we affirmed in Moore, supra, 96 Cal.App.4th 1105. We there observed that People v. Gainer (1977) 19 Cal.3d 835 disapproved of an instruction permitted in federal court (Allen v. United States (1896) 164 U.S. 492, 501-502 [41 L.Ed. 528, 531]) encouraging minority jurors to reexamine their views in light of the majority’s views and to consider that the case must be decided at some time. (Moore, supra, 96 Cal.App.4th at p. 1120.) In Moore, supra, 96 Cal.App.4th at page 1121, we concluded the instruction given by the trial court did not constitute an improper Allen charge, and we commended the trial judge (Judge Michael G. Virga) for fashioning an excellent instruction. In a later case where instructional error led to reversal, People v. Hinton (2004) 121 Cal.App.4th 655 at page 661, we observed that the error could have been avoided had the trial court been aware of and used the Moore model.
Defendants argue Moore is not controlling because the question whether instructions coerce a verdict necessarily turns on the facts of the particular case, and Moore is distinguishable because the jury there declared a deadlock after less than a day of deliberations, and the trial court in Moore conducted no inquiry into the jury’s deliberations and did not know the division or the majority position, as did the trial court in this case. None of these circumstances warrants reversal of the case before us. To the contrary, as noted by the People, the record here shows the jury was not coerced, because the jury remained deadlocked on one count of attempted murder as to Bruce, which resulted in a mistrial as to that count.
We conclude defendants fail to show grounds for reversal based on the trial court’s handling of the “hold-out” juror and the deadlock.
C. Lamson: Sentencing
Lamson argues the trial court erred in imposing a sentence of 25 years to life (a full consecutive term) for the firearm enhancement on count 3 (attempted murder of V.D.). Lamson argues the terms on counts 2 and 3 (the two attempted murders) were determinate sentences to which the limits of section 1170.1 apply. Section 1170.1 provides that subordinate terms “shall include one-third of the term imposed for any specific enhancement applicable” to a subordinate offense, and the gun use enhancement (§ 12022.53 is specified as such an enhancement). (§ 1170.11; People v. Moody (2002) 96 Cal.App.4th 987, 990-993.) The People concede the error and agree the sentence for the count 3 firearm enhancement should be reduced to one-third the full term, i.e., eight years, four months to life. Accordingly, we shall modify the abstract of judgment.
D. Bruce: Claim of Exclusion of Exculpatory Evidence
Bruce contends the trial court violated Evidence Code section 356 and Bruce’s federal right to due process and a fair trial by excluding his exculpatory out-of-court statements to Lamson and one Benjamin L., while admitting inculpatory portions of those conversations. We shall conclude that, even assuming the contention was preserved for appeal (a point disputed by the parties), Bruce fails to show reversible error.
Evidence Code section 356 provides: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
1. The Conversation with Benjamin L.
When the police found residue on Bruce’s hand consistent with gunshot residue (GSR) on the night of the shooting, he claimed he and his friend “Bubba” (Greg P.) had been shooting guns down at the railroad tracks. The trial court allowed the prosecution to seek to prove this explanation was false by adducing limited evidence of conversations to the extent they related to this GSR issue.
During its case-in-chief, the prosecution called Bruce’s friend, Benjamin L. as a witness. Benjamin testified he had a conversation with Bruce on October 30, 2002, four days after the shooting at the party, and Bruce said he had been involved in an incident the previous Saturday and also said he had been shooting guns with a mutual acquaintance (Greg P.) by some railroad tracks. Benjamin testified he later asked Greg if it were true, and Greg said no. The trial court admonished the jury the evidence was being offered for a limited purpose, i.e., “whether or not defendant Bruce Phan attempted to fabricate evidence in this case.”
Bruce argues on appeal that the prosecution’s theory was that Bruce lied to Benjamin out of consciousness of guilt, in an attempt to account innocuously for gun residue the police found on Bruce’s hand shortly after the shooting. Bruce argues on appeal that, if the jury agreed with the prosecutor, that would also tend to undermine Bruce’s claim of self-defense and defense of others in connection with the shooting at the party.
This point is perplexing, since Bruce admitted firing a gun at the party. The presumable insinuation is that the gunshot residue evidence forced the admission and gave birth to the fabricated theory of self-defense/defense of others.
On cross-examination, Bruce’s lawyer sought to elicit from Benjamin that during his conversation with Bruce on October 30, Bruce said he was involved in a shooting at a party and that he “was shooting back” after he and his friends were fired upon and Lamson was shot. Bruce argues this evidence was consistent with his claim of self-defense and defense of others, and refuted the prosecutor’s theory that Bruce was trying to set up a false alibi.
The trial court ruled Bruce could not question Benjamin about his conversation with Bruce to the extent that Bruce said he fired his gun only “to help somebody else.” The trial court initially excluded this evidence because it implicated Lamson’s rights by suggesting Lamson fired first. The court later ruled that Benjamin’s account of the conversation was speculative as to Bruce’s motives.
We do not view as a discrete contention and therefore disregard Bruce’s footnote comment about Aranda-Bruton. The People note the trial court was concerned that Lamson not be prejudiced by references to his involvement.
The prosecutor called Greg P. as a witness. Greg P. testified Benjamin came and asked if he had been shooting guns with Bruce, and Greg P. truthfully told him no. At trial, Greg P. denied telling a police detective that Benjamin asked Greg to lie to help Bruce.
The prosecutor called the police detective (Will Bayles) as a witness. The detective testified he interviewed Greg P., who said Benjamin L. told him that Bruce was in trouble and the police found gunpowder on Bruce’s hand. The detective testified Greg said Benjamin asked him (Greg) to lie and say he had been shooting guns at the railroad tracks with Bruce.
Bruce sought to cross-examine the detective about Benjamin’s telling the detective that Bruce told Benjamin that Lamson got shot. Bruce’s lawyer, noting that Lamson indicated he would withdraw any Crawford objection, argued, “the entirety of that statement” was admissible and rebutted the prosecution’s insinuation that Bruce asked Benjamin for help, showing a consciousness of guilt. Bruce argued the evidence would support his theory that Benjamin asked Greg P. to lie on Benjamin’s own initiative, not at Bruce’s request, and Benjamin’s reason for doing so was that he felt sorry for Bruce getting caught up in this case when he was only trying to help Lamson.
The trial court said:
“Okay. What I have in my notes regarding Benjamin [L.] is this. Ben [L.] testified here that Bruce Phan never told him about the gunshot residue. [¶] [Benjamin] said Bruce Phan never told him about the shooting at the [party]. [¶] And that Bruce Phan never told him to go to [Greg P.] and attempt to fabricate evidence or provide an alibi on his part. [¶] What the witness [Benjamin] did say . . . was that the witness said on his own he went to -- he went to [Greg P.] because he did not feel Bruce was telling the truth about shooting at the railroad tracks . . . . [¶] So in essence, I don’t see how allowing the Officer to testify about what Bruce Phan told [Benjamin] would -- would in any way establish the point that [Bruce’s lawyer] is seeking to establish. Because in essence he says that Bruce Phan told him he never needed help. [¶] And he also said that Bruce never talked to him about the facts of the instant -- of the instant case. [¶] And then furthermore, as it currently stands getting the statement in through Detective Bayles would be two levels -- it would require two levels of hearsay. [¶] And unless [Benjamin’s] state of mind is related to an element of any of these offenses, then his state of mind strictly speaking is irrelevant and it doesn’t relate to any of the elements herein. [¶] And furthermore, under Evidence Code Section 356, I think there is a leap here. Essentially, what counsel is saying that Bruce Phan had apparently told [Benjamin] that Lamson got shot. Lamson was hurt and Bruce Phan went to his assistance and shot back. [¶] Okay. Now, [Benjamin] disavows any knowledge of that statement. [¶] Moreover, that statement doesn’t -- without more doesn’t give any meaning to what [Benjamin] did in regard to his conversations with Greg [P.] It’s simply unrelated. [¶] So on those bas[e]s I’m not going to allow this Officer to testify to what is essentially double hearsay.” (Italics added.)
On appeal, Bruce argues the prosecution, by adducing evidence of part of his conversation with Benjamin, opened the door to admission of the entire conversation under Evidence Code section 356, including Bruce’s statement to Benjamin that Lamson got shot and that Bruce did not fire first but shot back after he and his friends were shot upon, which Bruce feels would have supported his theory of self-defense and defense of others.
However, it is not entirely clear what the testimony would have been, since Benjamin gave different accounts in his statement to the police and his preliminary hearing testimony, and his trial testimony was riddled with equivocation. Court and counsel entertained the possibility that Benjamin acted on his own when he asked Greg to lie to help Bruce.
Moreover, the portion of the conversation sought to be admitted by Bruce was not necessary to make the conversation understood. The purpose of Evidence Code section 356 is “to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission . . . in evidence.’ [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 156.) Evidence Code section 356 allows further inquiry into otherwise inadmissible matter that explains and provides context to other portions of properly admitted evidence. (People v. Gambos (1970) 5 Cal.App.3d 187, 192.) The proffered evidence was not necessary to explain the matter of the false GSR explanation.
Moreover, even assuming for the sake of argument that the evidence should have been admitted, Bruce fails to show grounds for reversal. The standard of review is the Watson standard. (Arias, supra, 13 Cal.4th at pp. 156-157.) Benjamin’s assertion that Bruce indicated he fired in self-defense or defense of others came for the first time in Benjamin’s preliminary hearing testimony. He did not make the same assertion in his initial statement to the police, where he merely said Bruce said he heard gunshots and Lamson got shot. This is consistent with the prosecution’s theory that defendants’ group fired first, and one of them accidentally shot Lamson. Additionally, the prosecutor gave early notice that if Benjamin were allowed to testify about Bruce being scared or defending himself, the prosecutor would impeach Benjamin with his videotaped statement to the police that Bruce never said he was scared.
We conclude Bruce fails to show grounds for reversal based on Evidence Code section 356.
Bruce argues reversal is required because exclusion of the evidence violated his federal constitutional rights to due process, confrontation, and a fair opportunity to present a defense. We disagree. The cases cited by Bruce are distinguishable. (E.g., Pennsylvania v. Ritchie (1987) 480 U.S. 39, 56 [94 L.Ed.2d 40] [accused sexual abuser of child had right to have records of child abuse agency turned over to trial court for in-chambers review and release of material information]; Green v. Georgia (1979) 442 U.S. 95 [exclusion of evidence of third party confession]; Chambers v. Mississippi (1973) 410 U.S. 284, 302 [exclusion of evidence from three witnesses that a person other than the defendant had admitted responsibility for the murder, though he later repudiated his confession].)
Assuming for the sake of argument the contested evidence should have been admitted, any error was harmless. “Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. (People v. Fudge, supra, 7 Cal.4th 1075, 1103.)” (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
Here, Bruce was not deprived of a meaningful opportunity to present a complete defense. He was merely foreclosed from presenting fragmentary testimony of a friend whose bias and credibility problems would have made the testimony of questionable value anyway. Indeed, the trial court stated Bruce could present the evidence he wanted, but he just could not do it through Benjamin L. Bruce did present his theory of self-defense/defense of others through his own testimony.
We conclude it is not reasonably probable Bruce would have obtained a better result had the evidence from Benjamin L. been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. The Conversation with Lamson
During cross-examination of Bruce, the prosecutor played a recording made by police of a conversation between Bruce and Lamson as they sat in the back of a police car on December 1, 2005. Bruce said to Lamson “game over.” Bruce acknowledged at trial that he did not say anything to Lamson about self-defense during that conversation. (The court struck Lamson’s added comment that he also did not say he shot anyone.)
On redirect examination, Bruce’s attorney tried to introduce a police recording of a conversation between Bruce and Lamson later on the day they were arrested. The trial court described the transcribed conversation in part as follows:
“THE COURT: . . .
“[Lamson says t]hat the officers should be in jail for putting innocent civilians in jail. Self-serving. There’s no exception to the hearsay rule for that.
“[¶] . . . [¶]
“Lamson [says]; I’m not going to accept blame for anything I didn’t do.
“Bruce Phan; I didn’t do shit. They can lock anybody up.
“Lamson; they’re trying to come at you with agility, too.
“Bruce replies; I didn’t do anything.
“[¶] . . . [¶]
“Lamson goes on to talk about a lot of people got shot at the party, including him. There are a lot of people there. There’s some way. There’s got to be some way to prove my innocence. Do you know somebody that was there at the party? Talks about the number of people there.
“Bruce says my girl -- the girl through the party [sic]. She knows my girl. And then they go on talking briefly; get your girl to talk to that girl to help us up. Tell her to speak the truth. Demand the truth.”
We note the court record contains a police “CONTINUATION REPORT,” which says Lamson and Bruce knew they were being recorded because they discovered the digital recorder in a tissue box. This device malfunctioned, but the videotape was running and captured the conversation.
Bruce argued these statements were necessary to refute the prosecution’s misleading cross-examination of Bruce, which suggested that Bruce never professed his innocence on the day of his arrest. Lamson added the statements were offered for state of mind and were admissible under Evidence Code section 356. The defense argued these were prior consistent statements.
The trial court said the conversation was “a bunch of self-serving statements given by both defendants” that did not fit the definition of a prior consistent or inconsistent statement. The court said, “I’m not going to allow it . . . . It doesn’t rebut -- a lot of the things that they say in the statements are irrelevant. There’s no -- really no inconsistencies here. [¶] . . . [¶] Most of these pages are just self-serving statements about how the police need to be arrested for arresting us. They got the wrong person. We didn’t do it. We’re just going there to look for girls or they don’t even say that, but they say we’re a bunch of [‘]pussy hounds[’]. [¶] And you know -- and so there’s nothing really that touches any of the substantive aspects of this case nor is there anything in here that contradicts any of the statements that were made. These are a bunch [of] self-serving musings between the two defendants. So I’m going to disallow [them].”
On appeal, Bruce emphasizes the trial court’s use of the term “self-serving” and claims this proves error because People v. Arias, supra, 13 Cal.4th 92, said with respect to Evidence Code section 356 that “if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission . . . in evidence.’ [Citations.]” (Id. at p. 156, italics added.)
However, the mere fact that statements are self-serving does not prove error under Evidence Code section 356, because the defense proffered multiple reasons for admitting the evidence.
Evidence Code section 356 does not apply because the evidence the defense sought to admit was not from the same conversation used by the prosecutor, nor was it necessary in order to make the first conversation understood. The prosecutor used a recording of a conversation made in the police patrol car. The recording the defense wanted to use was of a later conversation which occurred later in the day in the interview room of the sheriff’s department after Bruce was interviewed by a detective.
Bruce argues that, even if Evidence Code section 356 does not apply, he had a federal constitutional right to present exculpatory evidence. However, the cited cases are distinguishable. (E.g., Green v. Georgia, supra, 442 U.S. 95 [exclusion of evidence of third party confession]; Chambers v. Mississippi, supra, 410 U.S. 284, 302 [exclusion of evidence from three witnesses that a person other than the defendant had admitted responsibility for the murder, though he later repudiated his confession].)
We conclude Bruce fails to show any evidentiary error respecting the trial court’s exclusion of this evidence.
E. Bruce: Denial of Motion to Discharge Retained Counsel
On the day set for sentencing, defendants moved for continuances for various reasons. Bruce’s retained counsel said Bruce wanted a new lawyer:
“MR. MASUDA [Bruce’s lawyer]: [Bruce] wants independent counsel or -- or an attorney appointed to his case. He wants to -- a -- bring a motion for new trial. [¶] He cannot afford another attorney. He basically wants another attorney to look at this case for the purposes of a motion for new trial.
“THE COURT: Based on ineffective assistance of counsel?
“MR. MASUDA: He doesn’t say that. But I would a -- infer that that’s [sic] the only way he could get that granted. Either that or -- um, or more or less a Marsden [People v. Marsden (1970) 2 Cal.3d 118] Motion at this time.
“THE COURT: Well, you’re retained on this case, correct?
“MR. MASUDA: That’s correct.
“THE COURT: All right. So, um, we don’t do Marsden Motions on retained cases.
“MR. MASUDA: Yeah.”
On appeal, Bruce argues the trial court erred because People v. Munoz (2006) 138 Cal.App.4th 860 requires a trial court to entertain a defendant’s motion to discharge retained counsel, and the standard is less stringent than Marsden and does not require the defendant to show ineffective assistance of counsel.
However, it was defense counsel, not the judge, who characterized Bruce’s request as a Marsden motion. In any event, under the circumstances of this case, Bruce fails to show reversible error.
Thus, in Munoz, supra, 138 Cal.App.4th 860, a defendant moved to discharge retained counsel and obtain appointed counsel after the defendant was convicted in a jury trial and before sentencing. The defendant wrote to the judge 40 days after being convicted and nine days before the scheduled sentencing, alleging his retained lawyer did not adequately investigate the case and did not communicate with him. (Id. at p. 864.) When the trial court addressed the request in court, the court stated that substitution of counsel after a verdict requires a conflict of interest or incompetent representation. (Ibid.) Retained counsel said he had significant health problems that affected his ability to represent his client. (Ibid.) After trailing the matter to allow the defendant to submit a letter specifying instances of incompetence by counsel, the trial court denied the request on the ground that the defendant had failed to make an adequate showing that retained counsel was incompetent. (Id. at p. 865.) Munoz reversed and remanded to allow the defendant to discharge his lawyer. (Id. at p. 871.)
Munoz cited People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz), where the California Supreme Court held a criminal defendant has the right to relieve his retained attorney and have new counsel appointed and further has the right to do so without demonstrating (as would be required in Marsden motions) that the retained attorney is incompetent. (Munoz, supra, 138 Cal.App.4th at pp. 863, 866.) Ortiz said it was ordinarily appropriate to require a showing of incompetence for substitution of appointed counsel, because the defendant is requesting duplicative efforts at taxpayers’ expense, but that was not the case where the defendant was requesting appointed counsel for the first time. (Munoz, supra, 138 Cal.App.4th at p. 868, citing Ortiz, supra, 51 Cal.3d at p. 986.) However, as noted by Munoz, Ortiz also said the defendant’s right to discharge retained counsel is not absolute; the trial court, in its discretion, may deny the motion if discharge would result in significant prejudice to the defendant, or if it was not timely, i.e., if it would result in disruption of the orderly processes of justice. (Munoz, supra, 138 Cal.App.4th at p. 866.) Ortiz held the erroneous denial of the defendant’s right to relieve retained counsel mandated automatic reversal, where the defendant’s motion was made after a mistrial was declared in his first trial and well before any second trial and therefore would not have interfered with the orderly processes of justice. (Ortiz, supra, 51 Cal.3d at p. 987; Munoz, supra, 138 Cal.App.4th at p. 866.)
The issue in Munoz was whether Ortiz applied when the defendant sought to relieve his retained attorney and have new counsel appointed after the defendant had been convicted. (Munoz, supra, 138 Cal.App.4th at p. 863.) Munoz concluded Ortiz did apply, because counsel’s assistance is considered essential at every critical stage of the criminal process, including postconviction proceedings such as motions for new trial and sentencing. (Id. at p. 867.) Munoz concluded a trial court faced with a request to substitute retained counsel must balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution. (Id. at p. 870.) Blanket generalizations about possible delay would not suffice. (Ibid.) In the case before the Munoz court, the trial court had failed to exercise its discretion, and the record indicated the defendant’s request was generated by a genuine concern about the adequacy of the defense rather than an attempt to delay the proceedings, and substitution of counsel would not necessitate a lengthy delay because the trial lasted only two days. (Ibid.) Accordingly, Munoz reversed and remanded to allow the defendant to discharge retained counsel, though the appellate court observed its decision did not require an automatic retrial. The case would proceed anew from the point the defendant originally sought to discharge his lawyer. (Id. at p. 871.)
Here, it appears to us that any error by the trial court was invited by defense counsel’s assumption that the topic was a Marsden motion. Bruce does not claim ineffective assistance of counsel in his lawyer’s handling of this matter. In any event, even assuming trial court error, we do not believe reversal is required. Although a trial court’s failure to exercise discretion generally leads to a reversal to allow the court to exercise its discretion, it is clear the trial court would have denied the motion to discharge retained counsel.
Thus, after denying Bruce’s request to change lawyers, the trial court addressed his codefendants’ motions for new trial, during the course of which the court referred to a letter from Bruce about an issue he wanted time to investigate. The prosecutor argued there were no grounds for a continuance. When asked by the court if he had any comment, Bruce’s lawyer said Bruce “has continuously asked of me to look into the issues of a motion for new trial, and I believe I have. And I have indicated to him in the past that if there was some good grounds, I would bring a motion for new trial. [¶] So I think it’s a mischaracterization on the part of [the prosecutor] to say that [Bruce] is just now bringing this issue up. This issue has been brought up between [Bruce] and myself quite some time ago. It’s just that we disagree.” The trial court denied Bruce’s request for a continuance as untimely. The court explained its reasons for denying Lamson’s request for a continuance and returned to the matter of Bruce, stating, “as to Bruce Phan, I think there was more than adequate time to address that issue [which Bruce sought to investigate] with the Court [and] perhaps you thought your attorney was deficient in some manner. [¶] And I’m not prepared to get into that . . . [¶] . . . [but] as far as I’m concerned, you received more than an adequate representation from Mr. Masuda. [¶] And in any event, the motion’s untimely. This is something that should have been brought to the Court’s attention very early-on. [¶] Even if you were in discussions with Mr. Masuda, if the substance of your dispute involved his -- his representation, you could have petitioned the Court at an early date to see if you had a motion for new trial and we could have dealt with the issue at that point, um, a motion for a new trial based on ineffective assistance of counsel, but that doesn’t -- wasn’t done. [¶] And now you want to do it on the date that was set for judgment and sentence. We have a courtroom full of folks who wish to be heard in this [sentencing] proceeding. And, um, you know, I’m . . . gonna take it on faith and trust as if [sic] there were any issues that he needed to flush out on your behalf he would have done so. [¶] So in any event, . . . the motion to continue for Bruce Phan is . . . denied.”
Thus, although the trial court was speaking with reference to the motion for a continuance rather than the request to discharge counsel, it is clear that the trial court, had it entertained the request to discharge counsel, would have denied it as untimely. It is hard to imagine a case where discharge of retained counsel would lead to more disruption of the orderly processes of justice. To bring in a new lawyer and ask him or her to review a trial transcript of more than 6,800 pages, plus hundreds of pages of court filings, would obviously require a significant delay -- much longer than the three-week continuance granted to Sutter. We therefore reject Bruce’s unpersuasive argument that the trial court was required to grant his motion to change lawyers because the court granted Sutter’s motion for a continuance. Moreover, Bruce’s request to change lawyers was not made until the day scheduled for sentencing, despite the fact that after the verdicts were returned the defendants waived time and the sentencing hearing was set for approximately eight weeks after the verdicts were returned. Bruce cites no evidence in the record supporting his claim that he had no prior opportunity to make his motion to change lawyers. Moreover, in finding itself forced to continue Sutter’s sentencing due to a delay in the probation report, the trial court noted there were about 30 people in the audience expecting a sentencing hearing. Sutter’s lawyer stipulated the court could begin the sentencing process by hearing the victim impact statements that day despite the continuance. Obviously, if Bruce were allowed to change lawyers, that procedure would also have been disrupted.
The parties say the court continued Sutter’s sentencing due to his new trial motion. However, our reading of the record is that the trial court’s “chief concern” was with the delay in receiving the probation report, though the court also continued the hearing on the motion for new trial.
At oral argument in this court, Bruce cited People v. Braxton (2004) 34 Cal.4th 798, which found reversible error in a trial court’s refusal to hear a defendant’s motion for new trial before pronouncing judgment. Here, however, there was no motion for new trial but rather a motion to discharge counsel and get a new lawyer to look into the possibility of pursuing a motion for new trial.
We conclude Bruce fails to show grounds for reversal based on the denial of his request to discharge retained counsel and obtain appointed counsel.
F. Claim of Cumulative Error
We have reviewed all issues and defendants’ claims of cumulative error (Taylor v. Kentucky (1978) 436 U.S. 478, 487-488; People v. Hill (1998) 17 Cal.4th 800, 844-845) and conclude there was no cumulative error warranting reversal of the judgment.
G. Commendation of the Trial Judge
We commend the trial judge, Troy L. Nunley, for doing a superb job on a long and difficult case.
DISPOSITION
Lamson Pham’s abstract of judgment is modified to reduce the count 3 firearm enhancement to eight years, four months to life. The trial court is directed to prepare and transmit a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
The judgments are otherwise affirmed.
We concur: MORRISON , J., HULL , J.