Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. F3114, F3428A
CANTIL-SAKAUYE, J.
One night defendant Daniel Rocha and Donald Pinon broke into James McLain’s room and then shot and killed his housemate David Jessop. In case No. F3428A, a jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)) and found true allegations that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal discharged a firearm and caused death (§ 12022.53, subds. (d) & (e)(1)). In a bifurcated proceeding, the jury convicted defendant of being a felon in possession of a firearm (§ 12021, subd. (a)(1)) and bribery (§ 67.5, subd. (b)) and found he had a prior serious felony conviction (§ 667, subd. (d)).
Hereafter, undesignated statutory references are to the Penal Code.
In 2004, in case No. F3114, defendant pled guilty to assault with a deadly weapon (§ 245, subd. (a)(1)). He received local time and five years probation. Following the murder trial, the court found defendant had violated probation.
The court sentenced defendant to 75 years to life in prison.
On appeal defendant contends there was instructional error as to the derivative liability instructions. He claims the jury was not told that any assistance as an aider and abettor must have occurred before the burglary or robbery under a felony-murder theory and before the murder under a deliberate and premeditated murder theory. He further contends it was error to permit the gang expert to testify about defendant’s intent and knowledge and the gang expert’s reliance on hearsay violated the confrontation clause. We find no error and affirm.
FACTS
David Jessop Is Found Dead
David Jessop lived in a house in Mokelumne Hill with his older brother Matt Jessop, Matt’s girlfriend Elizabeth Barnes, and James McLain. McLain sold marijuana out of his bedroom and kept his door locked. McLain was friendly with Donald Pinon, but had never sold him marijuana. Matt Jessop also knew Pinon.
Rhonda Haaland lived next door with her children Chelsea and Dallas. In March of 2005, Chelsea was in San Francisco at school. Pinon was Chelsea’s boyfriend and had visited her at her mother’s home.
On March 15, 2005, McLain spent the night at his girlfriend’s home. Matt Jessop went to work that night at Denny’s. About 11:00 p.m., Barnes went to visit Matt at work. When she returned home at 4:00 or 5:00 in the morning, the lights in the house were on. She went upstairs and found that her bedroom door was open and that McLain’s door had been forced open. She went to Jessop’s bedroom and found Jessop in his bed under a sheet. Barnes lifted the sheet and saw blood coming out of his ears. She ran downstairs and called 911.
David Jessop had died immediately from a gunshot wound to the back of his head. The bullet exited his forehead. The police found the bullet in his pillow. When they moved the body, they found a.40-caliber gold Smith and Wesson shell casing.
The door to McLain’s room, which had been closed with a deadbolt lock, was damaged; the door frame was cracked. The television was pulled out from the wall and the closet doors were off the runners. The police found $1,360 in a tennis shoe in McLain’s room. They found a rifle in Matt Jessop’s room and several other guns.
Events at Vince Schroven’s House That Night
That same night Margarida Allen and Kassandra Domingo went to Vince Schroven’s house in Mokelumne Hill. In addition to Schroven, Anthony Patrick and Daniel Tyndall were there. Defendant and Pinon arrived later. They were both drinking Bacardi rum and were drunk.
Defendant had a black gun and bullets. Several people handled it. A bullet was ejected from the gun; it was collected and later Tyndall gave it to the police. The bullet was a.40-caliber Smith and Wesson. It could not be conclusively determined if that bullet was from the gun that fired the bullet that killed David Jessop. Schroven wanted to buy the gun, but defendant said no because if Schroven was caught with the gun he would be in trouble for two murders.
Tyndall passed away before trial.
Defendant was angry with Pinon that night and yelled at him. He pointed the gun at Pinon, said he was the weakest link and he should shoot him. Schroven asked defendant about a scuffle with McLain and defendant responded that he hated him, calling McLain a “motherfucker.” When McLain’s name came up, defendant asked where he lived. Pinon said next door to Dallas.
Defendant also said he would like to kill Chris Arbour. He said they should “roll on” Arbour, a slang expression meaning to cause harm. Defendant said it was “kill or be killed time.” When Domingo asked why he would want to spend 25 years to life in prison, defendant responded he would rather be in jail than live out here and be a bitch. Several times defendant referred to being a Norteño and said he had gang affiliation and star tattoos that you get only for killing someone.
Arbour was the victim of defendant’s 2004 assault conviction, in which defendant used a knife.
Statements by Defendant’s Friends
Jeffrey Wingard was David Jessop’s friend and he also knew defendant. Three months before the killing, defendant told Wingard he was mad at McLain. Wingard told detectives defendant said he was going to kill McLain, but he thought defendant was joking. He told a defense investigator that he told the police defendant was kidding “to sugar coat it.”
Jana Kosta rented a room from defendant’s parents. She was sick the night of March 15 and 16. Defendant asked her to tell the police she drove him and Pinon to Mokelumne Hill. Actually, she let defendant use her Jeep that night. He returned crying and hysterical. The next morning his cell phone rang and defendant was upset by the calls. Kosta had seen defendant with a gun.
Defendant is Arrested and His Residence Searched
Defendant was arrested on March 17, 2005, for a violation of probation. Police searched his residence and found an empty handgun pouch and.22-caliber ammunition. They swabbed his hands to test for gunshot residue. Defendant explained he had fired an SKS rifle with Kyle Loock on March 15. Loock denied it.
The People conceded the gunshot residue test results were not admissible.
No evidence relating to defendant was found in David Jessop’s room, in McLain’s room, or anywhere in that house. There were no fingerprints on the cartridge and no fingerprints belonging to defendant or Pinon were found.
Defendant’s Statements
Defendant spoke repeatedly to the police about that night; over time his story changed, increasingly implicating him. The morning after the shooting, before he was arrested, defendant made five calls in 20 minutes to a police officer he knew, Chris Villegas. When Villegas returned the last call, defendant told him he was concerned about rumors he had shot someone. Defendant told Villegas he was home all night. That afternoon, defendant called Villegas again. Schroven had called defendant and told him the police were looking for him and Pinon and the police were on their way to defendant’s home. Defendant told Villegas he had not seen Pinon for a month. Villegas advised defendant to tell the truth.
Later that day, defendant went to the police for an interview. In defendant’s first interview, he said he went to Schroven’s about 11:00 p.m. for an hour. Kosta took him and waited in the car; they picked up Pinon who was going to Rhonda’s. Defendant did not have a gun that night. If there was gunshot residue on his hands it was probably due to his firing an SKS rifle the day before. Defendant said he had been told that Vince Tiffany did the shooting.
Later, defendant told the police a third person told him Pinon did the killing and Pinon told defendant, “I did not mean to do it.” Defendant admitted he was a Norteño and had ties with East Side Stockton. In a second interview, defendant told the police that Pinon had called him crying, saying he did not mean to do it. Defendant claimed the five people who said he had a gun that night were lying and that he called Pinon a bitch all the time. Defendant was adamant he did not shoot anyone. “I’m tellin’ ya I didn’t fuckin’ shoot this motherfucker and I want to fuckin’--you know it’s bullshit that my name’s been getting’ thrown around in some shit like this.”
On March 18, after defendant and Pinon were arrested, defendant sent a note that he needed to talk to Detective Jon Thompson right away. Defendant wanted to know “what’s the deal” with arresting Pinon. The police told defendant he was lying. When the police told defendant he had the gun, defendant responded he took the gun out of Pinon’s hand, but Pinon took it back. Defendant said they went to McLain’s because Pinon wanted some weed. He claimed Pinon had money and there was no plan to rob McLain. Defendant said he went to McLain’s to “squash a beef” with BJ Moreno. When the police suggested defendant already had his stripes for stabbing Arbour, defendant replied, “I don’t give a fuck about gangs, man.” The police said the evidence would tell the story and the leather in the Jeep was absorbent. Defendant guessed it might have gunpowder on it and explained he was standing right behind Pinon when Pinon shot. Defendant then ended the interview.
Defendant asked to talk to the police again. Defendant wanted to cooperate and make a deal. He said he went to Schroven’s that night and Pinon pulled out a gun, cocking bullets. Supposedly one fell on the floor. Defendant and Pinon got in an argument; Pinon was drunk, but defendant was sober. Pinon wanted some weed and asked defendant to take him to McLain’s. At McLain’s defendant waited in the car; he wanted McLain to come out to “squash a beef.” Pinon came out of the house and told defendant to come. There was no one inside. Pinon went upstairs and defendant heard pounding. Pinon kicked a door down. Defendant grabbed the gun, but Pinon pushed him against the wall and took the gun back. Pinon said, “we’re coming up.”
Defendant started to leave when he heard another door kicked in. He went upstairs and saw Pinon with a gun and a guy’s feet sticking out of the bed. Defendant put his hand to Pinon’s shoulder. As he grabbed Pinon’s shoulder, there was a pop. Then he saw blood coming out of the guy’s mouth. Pinon put the gun to defendant’s stomach and told him to get to the Jeep. Defendant dropped Pinon at Rhonda’s.
Defendant told the police he would testify against Pinon. He claimed he did not know Pinon intended to “jack” or rob McLain. The phrase “coming up” can mean to steal someone’s money. Defendant conceded his earlier statements were lies. He explained the interviews with others may not match his story because a lot of people did not like him.
Defendant told a similar story about the shooting when Loock visited him in jail. The conversation was taped and played at trial. Defendant told essentially the same story when he testified at trial.
Gang Evidence
Villegas believed defendant was a Norteño gang member and associated with East Side Stockton. Defendant’s stabbing of Arbour was gang related.
Captain Jim Macedo testified for the prosecution as a gang expert. He testified defendant was a validated and documented Norteño gang member. The prosecutor asked about the following hypothetical: Two Valley Springs Norteños, one with a gun, enter a house where a young man is in bed. The roommate’s door is forced open and one looks for things to steal while the other holds the gun. Macedo testified that scenario would benefit the Norteño gang; it would elevate the participants’ status and intimidate witnesses. Macedo said the same hypothetical, where one Valley Spring Norteño shoots the man in bed and both flee without taking anything, also benefitted the gang by causing fear and intimidation.
Over a relevancy objection, Macedo testified to the reasons one gang member with a gun would bring another gang member to commit a robbery. He would want someone to watch his back, to collect the items, or to serve as a lookout. The gang member would not want to do something alone; he would want to show “you were down for one another.” Gangs were all about intimidation and fear; alone one might not be intimidating, but in a group it “look[s] larger.” Further, the gang member would want a witness to vouch for him; to prove he did not keep money for himself and to show the crime was committed for the gang. The reward was not the crime itself, but the notoriety that comes afterwards.
Macedo testified that calling another a bitch, a scrap or the weakest link is taunting, testing the other person. It also serves to pep them up just before a crime, to psychologically prepare the partner. Mokelumne Hill was Norteño turf, but on the fringe.
Macedo had listened to a tape of defendant’s phone call in jail where he talked about the Nuestra Familia and the troubles it was encountering. Defendant also discussed a Norteño street gang in San Jose and a member whose uncle or father was a shot caller in Pelican Bay State Penitentiary. In another conversation defendant was collecting information about rival gang activity. These calls showed defendant still had control in the neighborhood.
The defense called James Hernandez, a professor of criminal justice at California State University at Sacramento. He testified Norteños are an identity group, not a criminal street gang. He found no sign defendant was involved in an actual street gang or that the shooting was for the benefit of the gang. Hernandez claimed all Norteños are street gang members, but they are not all criminal street gang members. Defendant testified everyone knew he was a Norteño, but it was an identity not a gang thing. He had a “Norte” tattoo on his back with two stars.
The Bribery
Shortly after defendant went to jail he offered a correctional officer $5,000 if the officer would help get him out of jail. The officer told his supervisor about the offer and then wore a wire. In subsequent negotiations, defendant offered $2,000 and a 1979 Camaro worth $13,000.
DISCUSSION
I.
The Jury was Adequately Instructed on Aiding and Abetting as it Relates to Felony Murder
Defendant contends the instructions on derivative liability as an aider and abettor were “imprecise and incomplete.” Specifically, he contends the jury was not given an instruction on aiding and abetting that was tailored for burglary or attempted robbery, the felonies on which the felony-murder theory was predicated. Defendant contends the jury was never instructed that defendant must have aided Pinon at a time when defendant had the specific intent that Pinon accomplish his felonious goal. Defendant contends this instructional error was prejudicial because the jury may have convicted him based solely on his admission that he drove Pinon away after the killing. We reject defendant’s contentions.
The People sought a first degree murder conviction on two theories: felony murder based on burglary or attempted robbery and deliberate, premeditated murder. The prosecutor told the jury defendant was guilty if he was the one who shot Jessop or if he was an aider and abettor, a helper. Defendant was guilty if Pinon was the shooter and they went to McLain’s to kill or to rob.
The Jury Instructions
The court first instructed the jury on felony murder if defendant committed the act that caused Jessop’s death. The court then instructed on felony murder if Pinon fired the shot. The court instructed as follows: “To prove the defendant guilty of first degree murder under this theory--this is a co-participant committed the act--the People must prove that, one, the defendant committed or attempted to commit or aided and abetted burglary or robbery; two, the defendant intended to commit or intended to aid and abet the perpetrator in committing burglary, robbery, or attempted robbery; three, if the defendant did not personally commit or attempt to commit burglary or robbery, then a perpetrator whom the defendant was aiding and abetting personally committed or attempted to commit burglary or robbery; and four, while attempt--committing or attempting to commit burglary or robbery, the perpetrator did an act that caused the death of David Jessop; and five, there was a logical connection between the act causing the death and the burglary or robbery or attempted robbery.”
The court further instructed on the necessary connection between the fatal act and the underlying felony. It referred the jury to other instructions to determine if defendant and Pinon committed or attempted to commit burglary or robbery and to determine if defendant aided and abetted Pinon. Further, the court instructed the jury: “The defendant must have intended to commit or aided and abetted the felonies of burglary or attempted robbery before or at the time of the act causing the death. It is not required that the person, as I said, be the intended victim of a felony. It is not required the defendant be present when the acts causing the death occurred.”
Later in instructing the jury on aiding and abetting, the court spoke only in the context of murder. The court instructed the jury: “To prove that the defendant is guilty of the crime charged, murder, based on aiding and abetting that crime, the People must prove that, one, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and three--and four, the defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he or she knows the perpetrator’s unlawful purpose and he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of the crime. In all of these--if all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.”
Analysis
The law on aiding and abetting is clear; the intent to aid and abet must be formed before or during the crime. “A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “It is settled that if a defendant’s liability for an offense is predicated upon the theory that he or she aided and abetted the perpetrator, the defendant’s intent to encourage or facilitate the actions of the perpetrator ‘must be formed prior to or during “commission“ of that offense.’” (People v. Montoya (1994) 7 Cal.4th 1027, 1039.)
Defendant contends that contrary to this rule, the jury could have convicted him simply because he drove Pinon away after the shooting, even though he had no intent to rob McLain. We disagree that the jury could have found defendant guilty based only on driving the Jeep away under the instructions given. The jury was told that to be guilty of felony murder as an aider and abettor, “defendant must have intended to commit or aided and abetted the felonies of burglary or attempted robbery before or at the time of the act causing the death.” Thus, if the jury found defendant was an aider and abettor to felony murder, the jury must have found defendant intended to burglarize McLain’s room or rob McLain himself, or help Pinon do so, at the time or before Pinon fired the fatal shot. Defendant’s boasting and taunting at Schroven’s house that night, before going to McLain’s home, provided sufficient evidence for the jury to make this finding.
II.
The Jury was Adequately Instructed on Aiding and Abetting as it Relates to Deliberate, Premeditated Murder
Defendant contends the jury was not instructed on the difference between being an aider and abettor to murder and being only an accessory after the fact. Again, he posits that the jury may have convicted him simply because he admitted he drove Pinon away after the shooting.
As set forth above, in instructing the jury on aiding and abetting as it relates to murder, the court instructed the jury that it must find that “the defendant knew that the perpetrator intended to commit the crime;” and “before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime.”
The key timing issue in aiding and abetting is when defendant’s intent to aid and abet is formed. “[A]n intent to help the perpetrator get away, formed before cessation of the acts constituting the felony, constitutes aiding and abetting. [Citation.]” (In re Malcolm M. (2007) 147 Cal.App.4th 157, 171; see People v. Gomez (2008) 43 Cal.4th 249, 256 [to convict getaway driver of aiding and abetting, his intent to facilitate or encourage the crime must be formed before or during the crime].) The jury was properly instructed on this point of law. There was no instructional error.
III.
The People’s Gang Expert did not Improperly Opine on Defendant’s Intent and Knowledge
Defendant contends trial counsel tried to prevent Captain Macedo from testifying about an alleged gang member’s motive, knowledge and intent. He contends the trial court erred in permitting such testimony. Alternatively, he contends if counsel’s objection was insufficient, then counsel was ineffective.
In posing hypotheticals to Macedo based on the facts of this case, the prosecutor asked, “If you’re a Norteño gang member and you want to commit a robbery, and you only have one gun, why would you bring another Norteño gang member with [you]?” Defense counsel objected: “Objection. Relevance. Unless it’s based on the prior example.” The court overruled the objection and permitted Macedo to answer.
Macedo responded there were several reasons to have a fellow gang member present: to watch your back; to collect items for the robbery; to serve as a lookout; to show gang solidarity; to be more imposing and intimidating as a group; and to have someone vouch that the crime was committed for the benefit of the gang.
Defendant contends this testimony was improper gang expert testimony under People v. Killebrew (2002) 103 Cal.App.4th 644. In Killebrew, defendant was convicted of conspiracy to possess a handgun, although he did not have possession of a gun. (Id. at p. 647.) The sole evidence to establish the crime was the testimony of a police officer William Darbee “that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.” (Id. at p. 652, fn. omitted.)
The Killebrew court surveyed the law on the permissible scope of expert opinion on gangs. Under People v. Gardeley (1996) 14 Cal.4th 605, at page 617, an expert may give an opinion where the subject matter is “‘sufficiently beyond common experience’” and the subject matter of the culture and habits of gangs met this criteria. While expert testimony about gang culture and habits was admissible, Darbee’s testimony was not of this type. (People v. Killebrew, supra, 103 cal.App.4th at p. 654.) None of the reported cases permitted testimony that a specific individual had specific knowledge or possessed a specific intent. (Id. at p. 658.) The court found Darbee’s testimony “did nothing more than inform the jury how Darbee believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]” (Ibid.)
In explaining why expert testimony was not necessary on this topic, the Killebrew court set forth several examples of testimony that would be admissible. “Testimony that a gang would expect retaliation as a result of a shooting such as occurred at Casa Loma Park, that gangs would travel in large groups if expecting trouble, that in a confrontation more than one gang member may share a gun in some identified circumstances, and that oftentimes gang members traveling together may know if one of their group is armed, would have been admissible.” (People v. Killebrew, supra, 103 Cal.App.4th at p. 658.)
Defendant contends Macedo’s testimony told the jury that defendant and Pinon shared a felonious intent that night. We disagree. Rather, we find Macedo’s testimony about the reasons a gang member would commit a crime with another gang member similar to the type of testimony that Killebrew found permissible. It was not testimony about a specific individual’s knowledge and intent; instead, it was testimony about what gangs might do in certain situations. Macedo’s explanation of the myriad reasons gang members act in groups--particularly the need to intimidate, show gang solidarity and have a vouching witness--is evidence of the culture and habits of gangs and a proper subject of expert testimony under People v. Gardeley, supra, 14 Cal.4th at page 617. There was no error in admitting Macedo’s expert opinion and accordingly no ineffective assistance of counsel in failing to raise a proper objection.
IV.
The Gang Expert’s Reliance on Hearsay for His Opinions did not Violate the Confrontation Clause
Defendant asserts the gang expert testimony was “replete with hearsay.” He contends a substantial amount of the testimony about his and other individual’s gang status was testimonial hearsay admitted in violation of Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. He contends he was denied his right of confrontation under the Sixth Amendment.
Defendant recognizes that several California decisions have rejected this argument. (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427; People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; see also People v. Geier (2007) 41 Cal.4th 555, 607 [DNA report not testimonial].) Nonetheless, he raises the issue to preserve it pending the decision in Melendez-Diaz v. Massachusetts, Docket No. 07-591 (cert. granted March 18, 2008), concerning whether a laboratory report is testimonial hearsay, which he believes will address what is testimonial hearsay in the context of expert opinion.
After briefing in this case was complete, the United States Supreme Court issued its opinion in Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___, [174 L.Ed.2d 413], 129 S.Ct. 2527 [2009 U.S. LEXIS 4734]. The court held affidavits reporting the result of forensic analysis that showed the material seized by the police and connected to defendant was cocaine were testimonial. Thus, the affiants were witnesses subject to defendant’s right to confrontation under the Sixth Amendment. The affidavits fell within the “‘core class of testimonial statements’” described in Crawford: “‘ex parte ini-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ [citation]; ‘extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ [citation].” (Crawford v. Washington, supra, 541 U.S. 36, 51-52 [158 L.Ed.2d 177, 193].)
Defendant has failed to show Melendez-Diaz is inapplicable to this case. No affidavits or other formalized testimonial materials are involved. Defendant simply asserts there was testimonial hearsay; he does not explain why any of the hearsay relied upon by the gang expert was testimonial or even identify the offending evidence. In short, defendant offers no reason for this court to reconsider established California law that a gang expert’s reliance on hearsay matters in forming his opinion does not violate the Sixth Amendment. (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.)
V.
The Abstract Should Be Corrected to Show Concurrent Sentences on Counts 2 and 3
The trial court sentenced defendant to three years on each of count 2, possession of a firearm by a felon, and count 3, bribery. It ordered the terms to be served concurrently with the life term for murder. The abstract of judgment, however, records the sentences as full term consecutive. We order the abstract corrected to show concurrent sentences in accordance with the judgment.
DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the abstract to show concurrent sentences on counts 2 and 3 and to forward the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., BLEASE, J.