Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Tulare County No. VCF171678. James W. Hollman, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant Aitang See.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant Chawa See.
Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant Lavang See.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
A jury found Aitang See, Lavang See, and Chawa See (jointly, appellants) guilty of the murder of Robert Trevino (Pen. Code, § 187, subd. (a)) and conspiracy to commit the murder (§§ 182/187). The jury found true the street gang allegations that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)) and that the murder was committed while appellants were active participants in a criminal street gang (§ 190.2, subd. (a)(22)). As to Chawa, the jury also found true the allegations that he personally and intentionally discharged a firearm proximately causing the death of Trevino (§ 12022.53, subds. (d) & (e)(1)) and the offenses were enhanced with a personal discharge of a firearm allegation (§ 12022.53, subd. (c) & (e)(1)). As to Lavang and Aitang, the jury also found true vicarious discharge of a firearm allegations (§ 12022.53, subds. (c), (d) & (e)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
Because appellants share the surname See, we will refer to them by their first names. No disrespect is intended.
The trial court sentenced Chawa to life without the possibility of parole for the murder, plus a consecutive 25 years to life for the firearm enhancement. It sentenced Lavang to life without the possibility of parole for the murder, plus a consecutive 25 years to life for the firearm enhancement. And it sentenced Aitang to 50 years to life for the murder and firearm enhancement.
On appeal, appellants allege that (1) the trial court abused its discretion and violated appellants’ right to a fair trial when it permitted introduction of multiple predicate offenses and gang contacts as evidence of gang affiliation; (2) the trial court erred when it instructed on conspiracy; and (3) the trial court abused its discretion when it excused a juror prior to deliberations. In addition, Chawa contends the instructions given amounted to a directed verdict. Chawa and Lavang both contend the trial court abused its discretion when it sentenced them to life without the possibility of parole and that the punishment was cruel and unusual. Finally, Chawa and Lavang contend their abstracts of judgment must be corrected to delete an unauthorized restitution fine, and Aitang contends his abstract of judgment must be corrected to accurately reflect the gun enhancement. We agree only with appellants’ requests to correct the abstracts of judgment. In all other respects, we affirm.
STATEMENT OF THE FACTS
Around 6:30 p.m. on October 1, 2006, 16-year-old Robert Trevino was throwing a football with other neighborhood children on a residential street. Five Asian males approached him; one had a handgun in his waistband. Four of the males wore blue and black bandannas, covering their faces from the nose down. The one male whose face was uncovered shook hands with Trevino. He then pointed behind Trevino and Trevino turned around. The individual with the handgun shot Trevino in the head, from a distance of three or four feet. The five Asian males then fled.
Police officers arrived at the scene and found Trevino lying on the side of the road, bleeding from a head wound. A police officer checked his pulse, but found none. A.380-caliber shell casing was found in the middle of the road.
Witnesses identified four of the five Asian males as Chawa, Lavang, Aitang, and Billy Her. Her was identified as the individual who shook hands with Trevino. Chawa was identified as the person who shot Trevino.
On October 6, 2006, the police obtained and executed a search warrant for appellants’ residences. Police arrested Aitang at his apartment and found writings and clothing relating to the Oriental Troops (OT) gang in his bedroom.
Police were unable to locate Chawa, but located a.380-caliber semiautomatic handgun beneath the mattress in Chawa’s bedroom. Three live rounds were retrieved from the magazine. Subsequent test bullets from the handgun were found to match the bullet retrieved from Trevino’s head.
Lavang was arrested on October 17, 2006, and Chawa the following day. Lavang admitted to the officers that he was one of the individuals who approached Trevino right before the shooting, but denied that he shot him or that the group planned to shoot him.
At trial, Lavang’s former girlfriend, Tawny Chamberlain, testified that she hung out with members of the OT gang, and that, at the time of the shooting, she was pregnant with Lavang’s child. Chamberlain spoke to Chawa sometime after the shooting. When she asked him why he shot Trevino, Chawa said that he “deserved it” and was “dissing the hood.”
Her, who was offered a plea of voluntary manslaughter with a criminal street gang enhancement, testified as a prosecution witness. He testified that he, Chawa, Lavang, Aitang, and Chawa’s younger brother approached Trevino. Her shook hands with Trevino and asked him about his brother. He denied pointing his finger to distract Trevino and he denied having any knowledge that Chawa, whom he identified as the shooter, planned to shoot Trevino.
According to Her, he overheard a conversation between Chawa and an OT gang member, Jack Noi, a few weeks prior to the shooting. Noi told Chawa that he was having a problem with Trevino in juvenile hall. Chawa told Noi “don’t worry about it,” and said he would take care of it.
Officer Luma Fahoum testified as an expert on the OT gang in Tulare County. According to Fahoum, the OT is a predominately Asian male gang, and the location where Trevino was shot is an area OT claims as its “turf.” The Nortenos, a Hispanic gang, is a rival gang to the OT in Tulare County. The Nortenos identify with the color red, number 14, and the letter N. The OT identify with the color blue, numbers 15 and 20, and the letters O and T. But due to criminal street gang prosecutions, OT members often wore neutral colors, such as white, black and gray. As of October 1, 2006, there were about 50 documented OT members.
Officer Fahoum described the OT as the “most vicious and deadly gang in Visalia” for its size. The primary activities of the OT include murder, carjacking, witness intimidation, assault with a firearm, drive-by-shootings, robbery, and burglary. Officer Fahoum described multiple “predicate offenses” committed by various OT members.
Based on self-admissions, associations, tattoos, and clothing, Officer Fahoum opined that Chawa, Lavang, Aitang, Chawa’s brother, and Her were active members of the OT. Fahoum described the Mongolian Boys Society (MBS) and the Lahu Pride Crips (LPC) as “entry-level” OT gang members. According to Fahoum, Trevino was a validated Norteno.
In response to the following hypothetical -- if a group of OT members, most of whom had blue or black bandannas covering their faces, approach a rival gang member and shoot him in the head -- Officer Fahoum opined that the shooting was committed in association with and for the benefit of the OT.
Defense
Chawa’s younger brother testified and suggested Her was the shooter. Although Chawa’s brother acknowledged that he lived with Chawa and his family in the house where the handgun was found, he claimed Her had asked him prior to the search to take and store the handgun. Chawa’s brother said he took the gun and put it under the bed because he and Her were both in the same gang, the MBS.
DISCUSSION
1. Admission of Gang Evidence
The prosecutor introduced evidence of the following predicate crimes to establish the gang allegations and substantive gang offense:
(1) On June 30, 2004, OT members approached an ice cream truck and took some ice cream without paying. When the truck owner demanded payment, one OT member went around the corner, put a blue bandanna over his face, came back, and fired multiple gunshots at the truck. The shooter was convicted of attempted murder with a gang enhancement.
We grant appellant Lavang See’s request that we take judicial notice of People v. Seechan (F051825), an unpublished opinion out of this court, in which we found there was insufficient evidence of the gang enhancement attached to a robbery conviction in this case. But, contrary to what appellants suggest, the remainder of the gang enhancement findings, including the one attached to the attempted murder described above, were not reversed. (Evid. Code, § 452. subd. (d).)
(2) Also on June 30, 2004, an OT member and Aitang went into a convenience store and took beer without paying for it. When the security guard tried to stop them, the OT member turned and opened fire on the guard. The shooter was convicted of robbery and attempted murder with a street gang enhancement. A juvenile petition against Aitang for robbery with a gang enhancement was sustained.
(3) Also on June 30, 2004, Aitang was arrested for attempting to rob a person of his bicycle. A juvenile petition was sustained against Aitang for attempted robbery with a gang enhancement.
(4) On November 15, 2004, an OT member was involved in a verbal conflict over turf with a Norteno gang member. The OT member shot and killed the Norteno member, and was convicted of murder with a criminal street gang enhancement.
(5) On March 10, 2005, police contacted Chawa regarding a vehicular burglary and theft of the car stereo. Chawa was with another OT member at the time. A juvenile petition against Chawa for vehicular burglary was sustained.
(6) On April 6, 2005, Chawa was involved in a verbal altercation in which he threatened to shoot his ex-girlfriend’s family. During the altercation, he identified himself as a person “who associates with … gangs.” A juvenile petition against Chawa for making a criminal threat was sustained.
(7) On April 30, 2005, OT members approached a Norteno gang member. One OT member then shot and killed the Norteno. The OT gang member pled guilty to manslaughter with a criminal street gang enhancement.
(8) On December 20, 2005, police conducted a probation search of Chawa’s bedroom and found a handgun. Lavang was present, but Chawa was not. A juvenile petition against Chawa for being a minor in possession of a handgun was sustained.
(9) On May 8, 2006, an OT member was involved in a conflict over turf with a 15-year-old girl wearing a red shirt. The gang member fired a shot at the girl, missing her, but killing her older sister. The OT gang member was convicted of murder with a criminal street gang enhancement.
(10) On an unspecified date, OT and Norteno gang members were involved in a verbal and physical altercation in a convenience store. An OT member shot and paralyzed a Norteno member. The OT member was convicted of assault with a firearm, mayhem, and shooting into a building, all with criminal street gang enhancements.
The prosecution also introduced the following field contacts:
(1) On March 10, 2005, Chawa was booked into juvenile hall wearing blue shoes.
(2) On April 7, 2005, Chawa was booked into juvenile hall wearing a blue sweater.
(3) On May 3, 2005, in response to a report of a family disturbance, officers spoke with Chawa, who was wearing a blue shirt and admitted being a Crip.
(4) On May 7, 2005, an officer contacted Chawa and found he had a blue bandanna. Chawa denied being a Crip, but stated he did “have Lahu pride.”
(5) On October 18, 2006, when booked at juvenile hall, Chawa admitted being an OT member. He had gang-related tattoos on his hand.
(6) On December 12, 2007, Chawa, recaptured after escape, claimed he was an OT member.
On December 12, 2007, Chawa, Lavang, and Aitang all escaped from juvenile custody during transport to court. All were subsequently apprehended.
(7) On August 30, 2005, police contacted Lavang about a petty theft. Lavang was with an OT member at the time.
(8) On November 8, 2005, an officer responded to a 911 call and noted Lavang and other OT members were present.
(9) On December 1, 2003, an officer contacted Lavang about gang graffiti on his books. He was wearing a blue shirt and admitted being a LPC member.
(10) On January 30, 2006, an officer contacted Lavang. He was wearing a blue sweater and shorts and admitted being an OT member.
(11) On October 17, 2006, when booked on the current offense, Lavang claimed OT membership.
(12) On December 12, 2007, Lavang, recaptured after escape, claimed he was an OT member. (See fn. 4 on p. 8, ante.)
(13) On February 6, 2008, when Lavang turned 18 and was transferred to county jail, he filled out a questionnaire in which he claimed OT membership.
(14) On January 8, 2004, a detective contacted Aitang as a suspect in an armed robbery.
(15) On January 15, 2004, an officer stopped Aitang, who was riding a bike at the time. Aitang admitted writing “LPC” on his bicycle and being an LPC member.
(16) On February 3, 2004, an officer contacted Aitang at school. He admitted being a LPC gang member and had five dots tattooed on his left hand.
(17) On February 9, 2004, a detective contacted Aitang, who was a passenger in a stolen vehicle. He was wearing a blue hat and a blue jersey and was in the company of two other OT members.
(18) On April 9, 2004, an officer contacted Aitang, who was wearing a blue and white shirt. He was in the company of other known OT members and admitted being an LPC.
(19) On May 10, 2004, an officer contacted Aitang in the home of another OT member. The officer was responding to a call of fired shots.
(20) On May 26, 2004, an officer contacted Aitang, who was in the company of two other OT members. Aitang had a blue bandanna and admitting having been an LPC for one year.
(21) On June 11, 2004, a probation officer contact Aitang, who was in the company of another OT member. Aitang was wearing a blue shirt, had a blue bandanna, and admitted being an LPC.
(22) On July 1, 2204, an officer contacted Aitang, who was in the company of an OT member. Aitang was wearing a blue shirt.
(23) On December 30, 2004, when booked into juvenile hall, Aitang was wearing a blue shirt and blue shorts.
(24) On October 6, 2006, when booked at juvenile hall, Aitang admitted Crip gang affiliation.
(25) On December 12, 2007, Aitang, when recaptured after escape, claimed OT membership. (See fn. 4 on p. 8, ante.)
Appellants contend the predicate offenses and field contacts admitted in proving the existence of a criminal street gang and appellants’ active participation in the gang, for purposes of section 186, subdivision (b)(1)(C) and section 190.2, subdivision (a)(22), were unnecessarily cumulative and unduly prejudicial. In addition, Chawa specifically contests the admission of his prior juvenile adjudications for criminal threat and possession of a handgun (predicate offenses Nos. 6 and 8, ante) into evidence.
The People argue that appellants failed to timely object in the trial court to the evidence about which they now complain, with the exception of Chawa’s juvenile adjudications for criminal threat and minor in possession of a handgun, and therefore have forfeited their objections. Because appellants argue ineffective assistance of counsel in the alternative, should we find waiver, we address the issue on the merits and find no prejudicial error.
a. Standard of Review
The trial court has discretion in determining the admissibility of evidence, and on appeal we find reversible error only if the trial court’s exercise of its discretion was arbitrary, capricious, or patently absurd resulting in a manifest miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, abrogated on another point as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)
b. Gang Evidence
In order to subject appellants to gang-related sentence enhancements under section 186.22, subdivision (b)(1), the prosecution was required to prove that the crime for which appellants were convicted was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.…” In order to prove the section 190.2, subdivision (a)(22) allegation, the prosecutor had to show that the appellants intentionally killed the victim while each was “an active participant in a criminal street gang … and the murder was carried out to further the activities of the criminal street gang.” A “criminal street gang” means “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [certain specified crimes], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324, italics in the original.) And a “pattern of criminal gang activity” is defined as participation in two or more statutorily enumerated criminal offenses (the predicate offenses) that are committed within a statutorily defined period and “on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) “[A] pattern can be established by two or more incidents, each with a single perpetrator, or by a single incident with multiple participants committing one or more of the specified offenses.” (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003.)
Gang evidence, including expert testimony, is admissible to prove the elements of the substantive gang crime and gang enhancements if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Thus, a properly qualified gang expert may testify about a wide range of issues, including a gang’s territory, retaliation, graffiti, hand signals, tattoos, and clothing. (People v. Ochoa, supra, 26 Cal.4th at pp. 438-439.)
As noted above, the prosecutor introduced evidence of at least 10 crimes committed by OT members, as well as numerous field contacts with appellants, and in argument to the jury the prosecutor referred to several of these incidents. We are unaware of any authority in which the court directly addressed the volume of evidence that may be introduced to establish the primary activities, predicate crimes, and active participation elements of a gang enhancement or gang charge. But any such evidence must be subject to scrutiny under Evidence Code section 352, under which we determine whether the evidence is cumulative and unduly prejudicial.
Evidence Code section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
c. Cumulative Evidence
Courts have recognized that evidence of other crimes may be extremely inflammatory, and the trial court must take great care to evaluate its admissibility. (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Even if the evidence is relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury. (Ibid.) The trial court must find that the evidence has substantial probative value that is not outweighed by its potential for undue prejudice. (Evid. Code, § 352; People v. Ewoldt (1994) 7 Cal.4th 380, 404.)
Appellant contends that the volume of predicate offenses and field contacts admitted here were cumulative and unduly prejudicial. In People v. Leon (2008) 161 Cal.App.4th 149, on which appellants rely, the defendant was convicted of burglary, attempting to dissuade a witness from reporting a crime, possessing a concealed firearm in a vehicle while being an active participant in a criminal street gang, and carrying a loaded firearm while being an active participant in a criminal street gang. (Id. at p. 152.) During trial, the court permitted the prosecutor to introduce evidence of the defendant’s 1999 juvenile adjudication for robbery for the purpose of establishing the predicate offenses necessary to establish the section 186.22, subdivision (b)(1) gang enhancement. (Id. at pp. 164-165.)
On appeal, the court held that the trial court abused its discretion in admitting evidence of the defendant’s prior juvenile robbery adjudication to establish both that the defendant was a gang member and that the group in question was a criminal gang. The court noted that the robbery convictions of other gang members were sufficient to establish the predicate offenses, and the evidence of the defendant’s gang membership was overwhelming. (People v. Leon, supra, 161 Cal.App.4th at p. 169.) Thus, the court held “the evidence of [the defendant’s] robbery adjudication was ‘merely cumulative regarding an issue that was not reasonably subject to dispute.’ [Citation.]” (Ibid.) But the court found the error harmless nonetheless. (Id. at pp. 169-170.)
Appellants also rely on People v. Williams (2009) 170 Cal.App.4th 587, in which police executed a search warrant on a house and found a gun, drug paraphernalia and ammunition in a bedroom and a second gun and drug paraphernalia in the garage. There were seven gang members present at the time, including the defendant. (Id. at pp. 596-597.) The defendant was convicted of gun and drug charges with gang enhancements and participation in a criminal street gang. (Id. at p. 595.)
On appeal, the court found that the trial court abused its discretion in admitting evidence of “at least eight crimes committed by [gang] members,” as well as evidence and of dozens of police/gang contacts. (People v. Williams, supra, 170 Cal.App.4th at pp. 600-602, 609.) The court found the evidence “cumulative” because it “concern[ed] issues not reasonably subject to dispute.” (Id. at p. 611.) It nonetheless found introduction of the cumulative gang evidence harmless. (Id. at pp. 612-613.)
Here, the admitted gang evidence and field contacts were numerous. The prosecution introduced five predicate offenses not involving appellants. In addition, one predicate offense involved another gang member and Aitang; one offense involved Aitang alone; and three predicate offenses involved Chawa, although Lavang was present on one of those occasions. In addition to the predicate offenses, the prosecutor introduced evidence of numerous field contacts with appellant. And while appellants seem to concede that admission of gang membership and the wearing of gang colors when contacted by officers indicated active gang participation, they argue that many of the incidents revealed that police contacted the appellants because they were suspects or participants in other offenses or were booked into juvenile hall -- irrelevant and unduly prejudicial acts.
As stated in People v. Williams, supra, 170 Cal.App.4th at page 611, “Although no bright-line rules exist for determining when evidence is cumulative, … application of the term must be reasonable and practical.” But here, even assuming arguendo that it was an abuse of discretion to admit cumulative evidence on issues not reasonably subject to dispute, we next evaluate whether the introduction of the cumulative gang evidence was prejudicial error.
d. Harmless Error
We evaluate error in the admission of prior crimes evidence using the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), under which we determine whether it was “reasonably probable that a result more favorable to defendant would have resulted” had the prior crimes evidence not been admitted. (People v. Welch (1999) 20 Cal.4th 701, 750.) But appellants contend that the erroneous admission of evidence rendered the trial fundamentally unfair, and therefore we should review the error under the harmless-beyond-a-reasonable-doubt test set forth in Chapman v. California (1967) 386 U.S. 18, 23-24.)
Relying on People v. Albarran, supra, 149 Cal.App.4th 214, appellants argue the introduction of gang evidence violated their due process right and led to a fundamentally unfair trial. In Albarran, the court held that there was nothing inherent in the facts of the charged shooting to suggest any gang motive and the gang evidence was highly prejudicial, and the court found defendant’s federal due process rights had been violated. (Id. at pp. 227, 230-232.) The court stated, however, that the case before it “present[ed] one of those rare and unusual occasions” where the error was of federal constitutional dimension. (Id. at p. 232.) The court explained, “‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.’ [Citation.]” (Id. at p. 229.)
Here, in contrast, the challenged evidence had direct relevance to and was directly probative of the gang enhancements to establish the predicate offenses and appellants’ continuing participation in the gang. There was overwhelming evidence of appellants’ guilt of Trevino’s murder. Witnesses identified appellants as the males who, while wearing gang-colored bandannas, approached Trevino. Lavang admitted being present during the murder. Chawa was identified as the shooter. Chawa told Lavang’s former girlfriend that he shot Trevino because he was “dissing the hood,” and the weapon used to kill Trevino was later found in Chawa’s bedroom. Ample admissible evidence established appellants’ prior and current involvement with the OT gang; all three admitted OT gang membership. We conclude that any error in admitting cumulative gang evidence was harmless under either Watson or Chapman.
2. Conspiracy Theory
The prosecution presented three possible theories of liability on the murder: direct, aiding and abetting, and conspiracy. Appellants contend that the trial court erred in instructing the jury that criminal liability could be based on a theory of conspiracy. As argued by appellants,
“under the express language of Penal Code section 31, principals are limited to those who actually commit a crime and those who aid and abet in the commission of a crime, and not those who conspire to commit a crime. Accordingly, conspiracy is not a valid theory of criminal liability. Although there are cases which indicate that conspiracy is a valid theory of criminal liability, they are contrary to the express language of section 31, which is the controlling statute, and therefore are not viable. Nor do these cases explain how they are compatible with the express language of section 31.”
Section 31 defines “principals” as “[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”
We disagree.
Here, the trial court instructed the jury that a person may be guilty of a crime in two ways -- having directly committed the crime or as having aided and abetted the person who directly committed the crime (CALCRIM No. 400); on the elements of aiding and abetting (CALCRIM No. 401); on the elements of an uncharged conspiracy (CALCRIM No. 416); and the definition of conspiracy (CALCRIM No. 563). In giving CALCRIM No. 416, the trial court instructed the jury, “The People have presented evidence of a conspiracy as a theory of liability in Count 1, murder.”
As explained in People v. Salcedo (1994) 30 Cal.App.4th 209, 215:
“[¶] The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself -- ‘an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.’ (People v. Fujita (1974) 43 Cal.App.3d 454, 471 …; Pen. Code, § 182.) Second, proof of a conspiracy serves to impose criminal liability on all conspirators for crimes committed in furtherance of the conspiracy. Thus, ‘where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all.’ (People v. Kauffman (1907) 152 Cal. 331, 334 ….)”
“It is long and firmly established than an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In People v. Prieto, supra, 30 Cal.4th 226, our Supreme Court approved instructing on conspiracy as a theory of criminal liability in a capital case. In Prieto, the prosecution alleged conspiracy as one theory of liability for some counts, although it did not charge defendant with conspiracy. On appeal, the defendant challenged the conspiracy instructions. The court held that the instructions properly informed the jury a conspirator could be vicariously liable for a crime committed in furtherance of the conspiracy only if that crime was a natural and probable consequence of the conspiracy. (Id. at pp. 249-250; see also People v. Hardy (1992) 2 Cal.4th 86, 188.)
The trial court did not err in instructing the jury on conspiracy as a theory of criminal liability.
3. Discharge of Juror
Appellants contend that the trial court committed prejudicial error in removing juror No. 9 over objection. Respondent disagrees and argues the trial court properly exercised its discretion. We find no prejudicial error.
a. The Record
On the fifth day of trial, during a break in the court’s instructions to the jury, juror No. 9 asked to speak to the court. The juror explained that she realized, only after Chawa’s brother testified, that their sister was a student of hers:
“[JUROR 9]: … I hesitated a lot of coming or not. I know the family of Chawa See. His sister is my student, but
“THE COURT: You didn’t know that before.
“[JUROR 9]: I didn’t know that before it was coming up. I didn’t even know they were from Lindsay. I didn’t know until today.
“THE COURT: Okay.
“[JUROR 9]: I recognize the face of Nalae See, the sister of Chawa. And then I also have to add if you’re gonna ask me, ‘Is that gonna change the way you deliberate,’ I don’t think so, but it affects my feelings and my hearts.
“THE COURT: What do you mean, it affects your feelings and your hearts?
“[JUROR 9]: Well, no, no, no. Actually, I’ve been thinking about Nalae, but it won’t change the way -- my opinions. I already made up my mind.
“THE COURT: Well, you really can’t make up your mind before you deliberate with the other jurors, so I hope you didn’t make up your mind yet.
“[JUROR 9]: See? I’m confusing things. I understand.
“THE COURT: I understand.
“[JUROR 9]: Do I go back and say everything again ….”
The court then stated what it needed was some clarity on the juror’s “actual relationship” with the family. Juror No. 9 explained that she was a high school teacher and Nalae was currently a student of hers and had been since last year. Juror No. 9 had never met Nalae’s parents or anyone else in the family. She did not know any of the other witnesses. The court then asked if Juror No. 9 could “set that aside” or whether she would feel “pressure one way or another” because she was her student. The following colloquy then occurred:
“[JUROR 9]: No. I was just trying to give you an opinion, since I was chosen as the last juror to put on the panel, if you could go ahead and pick one of the two remaining ones.
“THE COURT: You’re saying you’d have trouble deciding the case, is what you’re saying.
“[JUROR 9]: No. Well, it makes me feel bad.”
The prosecutor then stated he thought “we could stipulate,” but Chawa and Aitang’s counsel disagreed. The court again asked juror No. 9 if this information was going to affect her ability to judge the case, noting that she vacillated between saying it would not affect her, telling the court that she was ready for an alternate to take her place, and that this information “affects your heart.” Juror No. 9 again stated, “[I]n the human part I’m thinking about Nalae.” When asked if the “human part” kept her from being fair, she said, “No, I will be fair.”
Aitang’s counsel questioned the juror, asking whether, despite the discovery of this information, she could still be fair and impartial. The juror responded that she could, but also mentioned again the idea of being replaced with an alternate juror. When told that decision was not hers but up to the court, juror No. 9 said she “brought the situation to you so that you decide.”
The prosecutor questioned juror No. 9 and asked how she would feel about going back to the classroom to teach Chawa’s sister if she were to find Chawa guilty. Juror No. 9 claimed it would not make her hesitant to actually find him guilty, “[b]ut if I say he’s guilty, I’m pretty sure tomorrow when I go back to school … I will be looking at Nalae and maybe feeling bad.” When asked again, she again said she would not be hesitant to actually find him guilty, but she would “feel bad” for his sister.
Juror No. 9 also expressed some concern that the students at her school were able to infer, due to her absence from school, that she was on the jury involving Chawa’s family. But she again denied that this concern would keep her from finding Chawa guilty.
The trial court then asked the juror to return to the jury room. Following a lunch recess, the prosecutor asked that the court remove the juror, noting that she not only knew someone she could sympathize with, but that the deadliness of the OT gang added a “fear aspect.” The prosecutor summarized, “The point is that it’s highly prejudicial to the People’s case keeping her on, whereas if we remove her there’s no prejudice to anybody’s side.…”
Aitang’s counsel, Chawa’s counsel, and Lavang’s counsel each objected, arguing, in essence, that juror No. 9 expressed an eagerness to render a fair and impartial verdict. But the prosecutor noted that, had Juror No. 9’s relationship with Chawa’s sister been known at the beginning of trial, she would have been excused immediately.
The trial court, noting that juror No. 9 “fumbled on her words a little bit” because English was not her first language, nonetheless decided to keep the juror, stating it was “not convinced that she can’t be fair.” But later, following the parties’ closing arguments, the court again addressed the issue. Addressing juror No. 9 in chambers, the court stated that, after reconsidering, it had determined it would excuse her because keeping her on the jury would be “asking too much of the juror to set [the relationship] aside and ignore it all and try to be objective.” For the record, the court then stated its reasons for excusing the juror:
“As I thought about it, I realized that clearly she would have been excused had she brought up that fact at the beginning of the trial. I want to specifically say the prosecutor did not sway my mind whatsoever. I’m thinking for the integrity of the system we probably need to excuse a juror like that that can be observed by an impartial observer to somehow have some information about this case. If she voted guilty, she’d have to go back and face the actual sister of the person that she found guilty. If she found them not guilty and a personal observer can say, well, she knows … [¶] … [¶] … she was biased. I think just for the integrity of the system, even though she said she could be fair and impartial, I think it would be an undue burden to place upon anybody in this system. We attempt to get jurors that have nothing to do with either side, and that’s what we would have done in the first place had we known she would have been involved in some way, we would have clearly -- I would have excused her right off the bat.”
Although Chawa’s counsel stated, “I think that that’s a sound reason. I have no objection,” Aitang’s counsel reiterated his earlier objection.
A criminal defendant has a fundamental constitutional right to a fair trial by an impartial jury. (See People v. Cleveland (2001) 25 Cal.4th 466, 487-488 (conc. opn. of Werdegar, J.).) However, that constitutional right does not entitle a defendant to a jury composed of any particular individuals. (People v. Hamilton (1963) 60 Cal.2d 105, 128, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2.)
Section 1089, provides in relevant 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.” A trial court’s decision to remove a juror is reviewed under an abuse of discretion standard and will be upheld only if that juror’s disqualification appears on the record as a demonstrable reality. (People v. Wilson (2008) 43 Cal.4th 1, 26.)
“[¶] The demonstrable reality test entails a more comprehensive and less deferential review [than the substantial evidence test]. [The demonstrable reality test] requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052-1053, original italics.)
The court’s exercise of discretion to exclude a juror, who would be called on to judge the credibility of a witness and the defendant, both brothers of a current student, is analogous to the “cause” challenge utilized in ordinary jury voir dire. Potential jurors are questioned during voir dire whether they are familiar with the defendants and/or potential witnesses, so that the court can determine whether any of the jurors have an actual, or potential, bias concerning the case. (See Code Civ. Proc., § 225, subd. (b)(1); People v. Jimenez (1992) 11 Cal.App.4th 1611, 1622, disapproved on another ground in People v. Kobrin (1995) 11 Cal.4th 416, 419.) As juror No. 9 told the trial court, she was not aware until after Chawa’s brother testified for the defense that their sister Nalae was a current student of hers. Had this fact been known prior to the start of trial, there is no question that she would have been excluded during voir dire. An admission by a juror that an extraneous matter might enter into his or her thought processes is adequate ground for the exclusion of a juror for cause. (See, e.g., People v. Hecker (1990) 219 Cal.App.3d 1238, 1242-1243 [juror informed the court she had seen defendant attending her church].)
In People v. Abbott (1956) 47 Cal.2d 362, the court upheld the trial court’s discharge of a juror who worked in the same office as the defendant’s brother, using a desk only 25 feet away, despite the juror’s statement that he did not know the brother and his belief that he could render an impartial verdict and did not wish to be relieved. (Id. at pp. 370-371.) The trial court stated that the reason for discharge of the juror was “because of [the juror’s] proximity to [defendant’s] brother in the office where they worked and in order to save [the juror] from embarrassment or criticism,” as there were people in the office who knew both men. (Id. at p. 371.)
Here, we find no error. However, if error occurred, we would find no prejudice.
“It is long-established law in California that where an alternate juror, approved by defendant in voir dire, is allowed to deliberate on the jury panel, the defendant bears a heavy burden to demonstrate that he was somehow harmed thereby.” (People v. Hall (1979) 95 Cal.App.3d 299, 307; see also People v. Hamilton, supra, 60 Cal.2d at p. 127.)
Appellants have failed to satisfy even a minimal burden. This is not a case in which the record indicates a deadlocked jury was suddenly able to reach a verdict after substitution of an alternate. (See People v. Delamora (1996) 48 Cal.App.4th 1850, 1856.) It is not a case in which a juror who was favorable to acquittal was excused before or during deliberations. (See People v. Cleveland, supra, 25 Cal.4th at pp. 485-486; People v. Hamilton, supra, 60 Cal.2d at p. 127.) Instead, this is a case like People v. Abbott (1956) 47 Cal.2d 363, discussed in Hamilton, in which there is “no showing that the juror would have been more favorable to one side or the other.” (People v. Hamilton, supra, at p. 127.) No prejudice occurred.
Claim Raised by Chawa
4. Implied Directed Verdict
When the jury was instructed on the liability theory of aiding and abetting (CALCRIM No. 401), the court stated, in part, “To prove that the defendant Lavang See or Aitang See is guilty of a crime based on aiding and abetting that crime, the People must prove.…” Chawa contends this instruction effectively directed a verdict since Chawa’s defense was identity and the court indicated by its instructions that Chawa was the perpetrator. We conclude that the instruction was proper.
“[J]ury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violate the defendant’s due process rights under the federal Constitution. [Citations.] Such erroneous instructions also implicate Sixth Amendment principles preserving the exclusive domain of the trier of fact. [Citations.] ‘Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he [or she] may not direct a verdict for the State, no matter how overwhelming the evidence. [Citations.]’ [Citations.]” (People v. Flood (1998) 18 Cal.4th 470, 491 (Flood).)
In Flood, supra, 18 Cal.4th 470, the defendant was prosecuted for evading a vehicle operated by a pursuing peace officer, but the element of whether distinctive uniforms were being worn was removed from the jury by an instruction that the person from whom the defendant fled were “peace officers.” (Id. at pp. 475, 482; see also People v. Hedgecock (1990) 51 Cal.3d 395, 407-408 [in perjury trial, court removed from the jury the issue of whether an omission or misstatement of fact was material]; People v. Figueroa (1986) 41 Cal.3d 714, 723-724, 740 [court instructed that a “security” was involved where an element at issue was whether certain promissory notes constituted securities].)
The instructions here did not relieve the prosecution of the burden of proving who shot Trevino. The prosecution’s theory was that Chawa shot Trevino and that Aitang and Lavang were either liable as conspirators or aiders and abettors. There was no evidence that Aitang was the shooter, and very little evidence that Lavang was the shooter (one witness saw the shooting but could not make out whether Lavang or Chawa shot Trevino). Another witness and accomplice Her both identified Chawa as the shooter. Chawa’s brother, who testified for the defense, claimed that it was Her who was the shooter. The aiding and abetting instruction did not name Chawa as the shooter, but specifically stated that, to find Lavang or Aitang guilty of a crime based on aiding and abetting, the People had to prove, inter alia, that “the perpetrator committed the crime,” that the defendants knew “the perpetrator” intended to commit the crime, and that the defendants intended to, and in words or conduct did, aid and abet “the perpetrator.”
The instruction given did not remove the question of who shot Trevino from the jury’s consideration. We reject Chawa’s claim that the instruction directed a verdict against him.
5. Cruel and Unusual Punishment
Lavang and Chawa argue that, because they are minors, their sentences of life without possibility of parole are cruel and/or unusual punishment under the United States and California Constitutions, as well as under an international treaty ratified by the United States. Chawa and Lavang also contend that the trial court abused its discretion in imposing the sentences. We disagree.
Lavang and Chawa were both convicted of special circumstance first degree murder, pursuant to section 190.2, subdivision (a)(22). The parties stipulated that, at the time of the offense, Chawa and Lavang were both 16 years old.
Section 190.5, subdivision (b) provides, in pertinent part, that the punishment for a defendant convicted of murder in the first degree with one or more special circumstances, “who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.” While the “presumptive” or “preferred” penalty in section 190.5, subdivision (b) is life without the possibility of parole, the statue does require “‘a proper exercise of discretion in choosing whether to grant leniency and impose the lesser penalty of 25 years to life for 16- or 17-year-old special circumstance murderers.’” (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089.)
In denying Lavang and Chawa leniency, the trial court, after reviewing the probation reports, stated:
“The Court notes that this crime did involve great callousness. This was done in the middle of the day very brazenly with masks over their faces as they walked down the street, making a statement essentially to all that observed what they were doing. The manner in which the crime was carried out indicates planning, sophistication, and professionalism, in the Court’s opinion. The defendants each have engaged in violent conduct which indicates a serious danger to society. [¶] The Court notes there are a couple of mitigating factors. However, the Court does not feel that they in any way outweigh the aggravating factors in this case. [¶] The Court has considered its discretion in giving a 25-years-to-life sentence and because of the sophistication and the manner in which this crime was carried out has specifically decided against it.”
Lavang’s probation report lists as mitigating factors that Lavang “may have been induced by others to participate in the crime” and that he has “no prior record of criminal conduct.” Chawa’s probation report lists no mitigating factors.
“Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted.)
Chawa and Lavang’s argument is based on the fact that they were 16 at the time of the homicide and, in Lavang’s case, had no prior criminal history. Chawa and Lavang rely on Roper v. Simmons (2005) 543 U.S. 551, 569-575 (Roper), which holds that the death penalty is excessive punishment when imposed on a person who was under 18 when the underlying crime was committed. An earlier case, Thompson v. Oklahoma (1988) 487 U.S. 815, 823 (Thompson), reached the same conclusion with respect to minors under 16.
Here, however, we are not concerned with the death penalty. “Proportionality review is one of several respects in which [the Supreme court has] held that ‘death is different,’ and ha[s] imposed protections that the Constitution nowhere else provides. [Citations.]” (Harmelin v. Michigan (1991) 501 U.S. 957, 994 [lead opn. of Scalia, J.]; see also Ring v. Arizona (2002) 536 U.S. 584, 606 [“‘[d]eath is different’”].)
Chawa and Lavang do not cite any United States Supreme Court or California authority holding that life imprisonment is constitutionally excessive, irrespective of other circumstances, where special circumstance murder is committed by a 16-year-old juvenile. Certainly, the viciousness and circumstances of the crime must be considered before any assessment of punishment.
In People v. Demirdjian (2006) 144 Cal.App.4th 10, the court held that it was not cruel and unusual punishment to impose an indeterminate life term without the possibility of parole (LWOP) on a person who was 15 years old when he committed the crimes -- two first degree murders with special circumstances. (Id. at pp. 13-16.) Demirdjian cited People v. Guinn (1994) 28 Cal.App.4th 1130, which had earlier come to virtually the same conclusion, except that there, the defendant had been convicted of only one murder. (People v.Demirdjian, supra, 144 Cal.App.4th at p. 16.) In Guinn, the court stated:
“[¶] Defendant Guinn argues that imposition of a sentence of LWOP on a 17-year-old is extreme. While we agree that the punishment is very severe, the People of the State of California in enacting the provision have made a legislative choice that some 16- and 17-year-olds, who are tried as adults, and who commit the adult crime of special circumstance murder, are presumptively to be punished with LWOP. We are unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment.” (People v. Guinn, supra, 28 Cal.App.4th at p. 1147; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 17 [sentencing a 14 year old to 50 years to life was not cruel and unusual punishment]; Harris v. Wright (9th Cir.1996) 93 F.3d 581, 583-584 [sentencing a 15 year old to life without parole was not cruel and unusual punishment].)
Chawa and Lavang do not attempt to distinguish Guinn or Demirdjian, but instead claim that they, or at least Lavang, are less culpable than the defendant in People v. Dillon (1983) 34 Cal.3d 441. We disagree. In Dillon, the defendant, a 17-year-old boy, was convicted of felony-murder and sentenced to life with the possibility of parole. The defendant had gone with accomplices to a field to steal marijuana. A cohort accidentally fired a shot and alerted the owner to their presence. The defendant then shot the owner nine times, killing him. (Id. at p. 487.) As explained in Guinn, the court reduced the murder conviction in Dillon to second-degree murder, because the defendant, a 17-year-old boy, shot a man he thought had shot his friends and was about to shoot him; he had no prior record; and the jury had expressed reluctance to convict him of first degree murder. (People v. Guinn, supra, 28 Cal.App.4th at p. 1146.)
While Lavang and Chawa were young and Lavang had no prior criminal record, they are not similar in any other respects to the defendant in Dillon. The circumstances in this case are callous and brazen. Appellants, acting in concert, approached a 16 year old playing football with other neighborhood children in the middle of the day. The victim did nothing to provoke appellants’ attack, a deadly shot to the head. Chawa and Lavang wore masks, identifying them as gang members, and participated in the crime for the benefit of a criminal street gang. “The fact that defendant … had chosen to embrace an antisocial, savage, gang lifestyle of complete heinousness, callousness and utter disregard for the law or for the rights of others at a relatively early age does not demonstrate the disproportionality of the sentence. The senselessness of defendant[’s] … crimes makes them more, rather than less, deserving of punishment.” (People v. Guinn, supra, 28 Cal.App.4th at p. 1146.)
Lastly, Chawa and Lavang argue the imposition of a life sentence without the possibility of parole violates international law. They cite articles 7, 10 and 24 of the United Nations’ International Covenant on Civil and Political Rights (ICCPR), an international treaty ratified by the United States in 1966. Even if Chawa and Lavang have standing to personally invoke the provisions of the ICCPR, a plain reading of the ICCPR does not support Chawa and Lavang’s contention. While the ICCPR’s juvenile provisions (1) emphasize the rehabilitation and education of juveniles; (2) require separation of child offenders from adults; and (3) require that the provisions of treatment be appropriate to the child’s age, upon ratifying the ICCPR the United States Senate attached the following limiting reservation:
“(5) That the policy and practice of the United States are generally in compliance with and supportive of the [ICCPR’s] provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14.… See 138 Cong. Rec. S4781-01 (daily ed. April 2, 1992) ….” Graham v. State (2008) 982 So.2d 43, 53, emphasis omitted.)
As explained further in Graham v. State, supra, in which the juvenile defendant sentenced to life without the possibility of parole made a similar claim to that made by Chawa and Lavang:
“The ICCPR was ratified subject to a declaration of non-execution. See 138 Cong. Rec. S4781-01. As such, appellant has no judicially enforceable right directly arising out of a challenge to the ICCPR as it would be interpreted by its signatory nations; his argument can attack only the breadth of United States law implementing the treaty. Pierre v. Gonzales 502 F.3d 109 (2d Cir.2007). This case does not involve such an attack. Until the treaty is implemented th[r]ough congressional action, it cannot act as a limitation on the power of the Florida Legislature to determine the appropriate penalties for violations of the law. Medellin v. Texas [(2008) 552 U.S. 491], 128 S.Ct. 1346, 1354-57 … (reaffirming that non-self-executing ratifications of international treaties cannot act as a limit on state power unless legislation exists implementing the treaty).” (Graham v. State, supra, 982 So.2d at p. 54.)
For the foregoing reasons, we find the trial court did not abuse its discretion when it chose to send Chawa and Lavang to prison for the term of life without the possibility of parole, the sentence did not violate the state or federal constitutional prohibitions against excessive punishment, and the sentence did not violate the ICCPR.
6. Chawa and Lavang’s Abstract of Judgment
Chawa and Lavang contend the trial court erred in imposing a $5,000 fine under section 1202.45, which was stayed pending successful completion of parole. Respondent agrees, as do we.
Such a fine is not applicable in cases where the defendant’s sentence includes a term of life without parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185.) The fine should not have been imposed because Chawa and Lavang were sentenced to life without the possibility of parole.
7. Aitang’s Abstract of Judgment
Aitang asks that the abstract of judgment be corrected to accurately reflect that the section 12022.53 enhancement listed in item 6, box d, was imposed pursuant to subdivision (e)(1) and not just subdivision (d), as listed. As argued by Aitang, he was not found to have personally used a firearm, but was subject only to vicarious liability for the firearm use. As shown, the document could be read “to indicate Aitang personally used a firearm, which is not correct.”
Respondent contends the abstract of judgment is correct, noting that the abstract of judgment, item 2, correctly reflects this finding, by noting that the enhancement is listed pursuant to “PC12022.53(d) & (e)(1).” As explained by respondent, “Subdivision (e)(1) shows appellant Aitang’s liability was vicarious; and subdivision (d) shows the sentence to be 25-years-to-life, identical to someone whose liability is personal.”
While respondent is correct, it is item 6, not item 2, that Aitang wishes us to correct. Out of an abundance of caution, we order the correction.
DISPOSITION
The trial court is ordered to amend the abstract of judgment form CR-292 for Chawa See and Lavang See to delete the section 1202.45 fine which was ordered and stayed pending successful completion of parole; and to amend the abstract of judgment form CR-292 for Aitang See to accurately reflect, in item 6, box d, that the special allegation is imposed pursuant to section 12022.53, subdivision (d) & (e)(1). The court is directed to forward a copy of the corrected abstract of judgments to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Kane, J.