Opinion
D072575
12-19-2018
THE PEOPLE, Plaintiff and Respondent, v. DIONTE SIMPSON, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD263072) APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed in part; vacated in part; remanded with directions. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Dionte Simpson of conspiracy to commit murder, murder, and possession of a firearm by a felon in connection with the 2011 murder of rival gang member Cordell King. The jury found true allegations that Simpson intentionally and personally discharged a firearm which proximately caused death, a principal personally and intentionally discharged a firearm, and the crimes were committed in association with and for the benefit of a criminal street gang. The court sentenced him to prison for a total term of 50 years to life.
On appeal, Simpson argues the trial court erred by admitting evidence of a subsequent shooting incident that resulted in Simpson's conviction for attempted murder. Simpson contends the evidence of the second shooting was more prejudicial than probative and its admission violated his due process rights under the federal Constitution. We reject these contentions. Simpson also contends, and the Attorney General concedes, his case should be remanded for resentencing to allow the trial court to exercise its discretion to strike the firearm enhancements under Penal Code section 12022.53, subdivision (h). We agree with this concession. We therefore vacate Simpson's sentence and remand the matter for resentencing under Penal Code section 12022.53, subdivision (h), and we affirm the judgment in all other respects.
BACKGROUND
A. Simpson's Gang Membership
Simpson is a member of the 5/9 Brim criminal street gang. His gang moniker is "Baby Poe." He is a member of an elite tier within that gang, the "Tiny Hit Squad," whose members are responsible for committing the most serious and violent crimes against rival gang members, including Crip gang members. Simpson has tattoos on his arms depicting the numbers five and nine, and the letters "CK," which stand for "Crip Killer" according to the testimony of two law enforcement witnesses.
B. Murder of 5/9 Brim Gang Member Derek Peppers
On April 11, 2011, Derek Peppers was murdered in the heart of 5/9 Brim territory. Peppers, known by the moniker "Fat Ocean," was a "well-respected" member of the 5/9 Brim gang—an "OG" or "original gangster." Fellow 5/9 Brim gang members understood that Crip gang members were involved in Peppers's murder and began planning to avenge his death.
C. Murder of East Dago Crip Gang Member Cordell King
On April 17, 2011, Simpson and fellow gang members Lamont "Baby Rob" Holman, Callie Beasley, and Jennifer "Furgy" Whitmer drove around Crip territory in San Diego in a tan Chevy Lumina. According to Beasley, who testified for the prosecution pursuant to a cooperation agreement, they were on a "hunting mission" for Crip gang members. Simpson was sitting in the rear passenger-side seat, holding a long, rifle-style gun. Beasley was sitting next to him. Holman was sitting in the front passenger seat. Whitmer was driving. They came upon King, a member of the East Dago Crips, who was dressed in all blue (a color associated with the Crip gangs). According to Beasley, Simpson said something like, "I see a Crab right there."
"Crab" is a derogatory name for Crips.
Eyewitnesses testified shots were fired at King as the car drove by him initially. King fell to the ground. An eyewitness who had just seen King walk by, heard sounds like firecrackers; he looked and saw King on the ground. He yelled toward King, asking if he was okay. King lifted his head toward the sound, but the witness did not hear King respond.
Multiple witnesses testified that the car circled back and stopped beside King. Eyewitnesses testified that Simpson, whom they described as a Black man with Simpson's general size and build with dreads, braids, or cornrows, exited from the rear, passenger-side door with a long, rifle-style gun; approached King; said something to him; and then shot him, point blank. King flinched. Simpson fired two more shots, but King's body did not move. Simpson got back into the car, and the group left the scene.
Two witnesses described the car as a light brown or beige Chevy with a spare tire; one described it as a silver car like a Trans Am or Grand Am; and one witness, who testified he observed the car through a dark-screened window, described it as a navy blue Chevy.
One eyewitness testified that a second man also exited the vehicle but did not do anything.
Beasley testified she ducked down and covered her head with a jacket as they approached King, so she did not see what happened. She felt the car stop, and both doors on the passenger side opened. She felt Simpson and the gun exit the car from the seat beside her, and then she heard gunshots. She felt people return to the car, the doors closed, and then they "drove off fast." When she finally sat up and uncovered her head, all four individuals remained in the car. She testified "[t]here was excitement" in the car. Simpson said, "now that is how you kill a Crab." Simpson and Whitmer said, "We just got our first CK. We got a Crab, that's for Fat Ocean."
At some point, they stopped the car, changed seats, and Simpson put the long gun into the trunk. They returned to a friend's home. Beasley saw Holman exit the vehicle and then put the handgun into the trunk with the long gun. Simpson then took both guns from the trunk and carried them into the friend's home.
King suffered a gunshot wound to the head and was dead when officers responded to the scene. He was also shot in the torso and buttocks. The torso and head wounds had a downward trajectory. An examining police officer opined that King's clothing and tattoos were consistent with gang activity. At the scene, police found two .45 caliber cartridge cases as well as bullet fragments fired from a second gun which was not a .45 caliber.
Beasley testified that Simpson wore his hair in cornrow braids prior to King's murder.
M.D., who at the time of King's murder was Whitmer's girlfriend, testified for the prosecution pursuant to a cooperation agreement. M.D. testified that, prior to King's murder, Whitmer had told her she planned to "get back," "[l]ike revenge," for Fat Ocean's killing. When they saw a news report that King had been killed, Whitmer told M.D. that was what she had just done. Whitmer asked M.D. to wipe down the car they had used. Whitmer later took M.D. to the scene of the shooting and relayed the details to her. Whitmer told her that Simpson, Beasley, and "this other guy" were involved in the shooting; they used two guns, "a big one and a small one"; and they used Beasley's car.
M.D. testified that Simpson previously wore his hair in braids, but after King's murder, "[h]e came over and let [Whitmer] cut his hair." She testified that there were comments made at the time as to why he was cutting his hair, and that "he needed to cut his hair because of what had happened."
D. Police Surveillance of the Wake of Derek Peppers
On April 20, 2011, police conducted surveillance at Derek Peppers's wake. A tan Chevy Lumina missing a front driver's side hubcap was parked a block and a half away from the wake. Police determined the car was registered to 5/9 Brim gang member A.L., who, at that time, was Beasley's boyfriend.
E. Subsequent Attempted Murder of Crip Gang Members
On June 14, 2011, Simpson and other 5/9 Brim gang members were involved in another gang-related shooting that occurred just blocks down the street from where King was killed. Although shots were fired, no individuals were struck or injured in the shooting. Shell casings found at the scene of the June 14 shooting were determined to have been fired from the same gun as the one that fired shell casings found at the scene of King's April 17 murder. In 2016, Simpson was convicted of two counts of attempted murder for the June 14, 2011 shooting.
F. Trial for King's Murder
1. Pre-trial Motions in Limine
The prosecution filed a motion in limine to admit evidence of Simpson's attempted murder conviction (for the June 2011 incident), arguing it was admissible under Evidence Code section 1101, subdivision (b) (section 1101(b)). The prosecution argued the evidence was probative on two issues—intent and motive. Specifically, the prosecution contended Simpson "harbored similar, if not identical, intents on both occasions." The prosecution further argued: "[T]he June 14, 2011 shooting . . . shares numerous distinct similarities to the charged offense. The two shootings happened within weeks of each other. The Defendant used the same gun to commit both crimes. Both shootings were only separated by a few blocks. Here, the commonality of targeting and repeatedly shooting at rival Crip gang members in the same location is highly probative on the issues of intent and motive."
Defense counsel objected and sought to exclude any evidence of Simpson's attempted murder conviction, arguing it was inappropriate character evidence. Defense counsel argued that evidence of Simpson's conviction should not be permitted unless Simpson testified, and then only for purposes of impeachment, subject to Evidence Code section 352. Defense counsel further argued that the prior conviction evidence was prejudicial, confusing, and misleading, substantially outweighing any probative value it might have.
At a hearing on the parties' cross motions, the court indicated it would admit the evidence related to Simpson's attempted murder conviction, concluding it was relevant for purposes of establishing intent and motive, both of which were contested issues at trial:
"[T]he June shooting . . . is pretty similar to the—in many ways to the April shooting. It was, of course, committed within a few blocks and within approximately two months of each other. I find that two months to be a short period of time. . . . [¶] [H]e was involved with the crime with the same gun being used, but there was the same gun used in each of the shootings.
"The evidence, as I understand it being offered, is that in each of the shootings one of the commonalities is that the victims of the
shootings were rival Crip gang members who were being shot because of them being rival Crip gang members targeted by the defendant and his cohorts.
"The differences I think are significant in ways that, as I've already talked about, make the April shooting and the one in this case more serious in some ways and more to be reviled by the jury possibly. As I said, planning and purpose and hunting down somebody is more obvious as I look at in this case than it was in the June one. . . . But I do think that although they're not—maybe not distinctive or overly distinct commonalities, I think they are sufficiently similar to be relevant and material to some things.
"And as far as materiality, I think what we're talking about is material to motive and that motive being primarily in this context to commit this crime of violence in order to benefit criminal street gang that's alleged in one of the allegations. Obviously that motive also kind of blends with the motive or—an intent to kill.
"This other shooting I think is relevant to the motive to benefit criminal street gang and also relevant—I'm sorry—material to the intent to kill standing alone. And I think more fully it's material to the combined intent to kill a rival gang member, which would happen to satisfy the allegation.
[¶] . . . [¶]
"And I think to a lesser degree—you might have touched upon the argument that it would be material to his involvement or the possible identity. I think that's true. It does go to that. If you were looking at just that, of course, you'd be looking for more distinct commonalities between the two. Because I wouldn't be relying on that, I'm not going to dive into that issue.
"So the evidence being offered regarding the shooting, whatever form it comes in, as set forth in the pleadings, I think that it has a strong tendency to prove these disputed facts, be it the motive to benefit a criminal street gang, the intent to kill in order to benefit a criminal street gang and the intent to kill standing alone. I think it has a strong tendency, because of the similarities, which you guys have different views of how similar they really are, I come down on it being sufficiently similar to—such that it, in my view, has a strong tendency to prove those material issues or facts.
"So absent some rule or policy that would exclude it nonetheless, despite it being material and having a strong tendency to prove the material facts, we're talking again about 352 and whether there's a risk of undue prejudice that substantially outweighs its probative value."
Weighing the potential for the evidence to be more prejudicial than probative, the court noted that the facts and circumstances of the attempted murder (where no one was actually shot or injured) were far less inflammatory than the circumstances surrounding King's murder (where the victim was shot repeatedly, including multiple shots fired at point blank range). The court concluded:
"I don't find in [an Evidence Code section] 352 [analysis] that the evidence that is being offered regarding the June shooting is so prejudicial that it would be [th]at the undue prejudice would substantially outweigh its probative value on those issues that I have addressed. I don't know that I would characterize it as undue prejudice at all, let alone substantially outweighing the probative value.
"So I'm going to allow the evidence to be introduced regarding the June shooting."
2. Evidence of June 2011 Attempted Murder Conviction
Pursuant to the court's order, the prosecution introduced a significant amount of evidence detailing the circumstances of the June 2011 attempted murder. The prosecution offered testimony from several witnesses, including T.J., the girlfriend of a 5/9 Brim gang member who witnessed the June shooting, two other individuals who witnessed the shooting, and several police officers who participated in the investigation and arrest immediately following the shooting.
T.J. testified that, on June 14, 2011, Simpson and other 5/9 Brim gang members were hanging out in front of the home of her boyfriend, B.O. (also a 5/9 Brim gang member), located just blocks down the street from where King was killed. Two individuals who the 5/9 Brim gang members believed were Crip gang members and with whom B.O. had had prior altercations, walked up the street. The groups exchanged words, and the 5/9 Brim gang members exhibited gang signs. According to T.J., Simpson pulled out a handgun and fired two shots. The individuals were not hit; they ran from the scene. After the shots were fired, the group of 5/9 Brim gang members returned to B.O.'s house, where T.J. saw Simpson give B.O. the handgun. B.O. hid the handgun in the ceiling of the garage.
Two other witnesses testified that, on June 14, they heard arguing and gunshots. One of the witnesses testified he saw a group of about five Black males and females making hand gestures that he "assumed [were] gang signs" toward two White men walking up the street. The witness testified he saw "the [B]lack group continue[] behind a work truck" and then heard two shots. He did not see who fired the shots, but he saw the two White men "[take] off running." The Black individuals "nonchalantly walked back down the street from where they had come." The other witness testified he saw a Black man with braided hair raise a gun and shoot it twice.
Police officers responding to reports of the shooting recovered two .45 caliber shell casings and a bullet from the scene. Police searched B.O.'s home and found Simpson hiding in an unfinished attic. Simpson did not respond to officers' commands, and at one point, one of his feet went through the drywall ceiling below. Simpson continued not to comply, and officers sprayed him with pepper spray. He told the officers, "[f]uck you." At that point, the officers below pulled him through the ceiling and took him into custody.
Officers also found a second individual hiding in the attic and a revolver wrapped in a red bandanna.
Simpson was arrested and placed with another arrestee and fellow gang member D.L. in the backseat of a police car equipped with a recording device. Audio from their conversation was played for the jury. At one point in their conversation, Simpson offered D.L. $2,500.00 to take responsibility for the gun.
In the transcript of the recording, Simpson is quoted as saying to D.L., "You want to take it?" And then, "If you can ride it then I'm going to take it, my nigga. If you ain't gonna take it blood, then I ain't gonna give you twenty five. If you take it, [o]n Brims, I got twenty five, on my mamma, nigga. As soon as you get out, nigga." The prosecution's gang expert opined that this meant, "Simpson admits he's got $2,500, but he's offering up $2,500 for [D.L.] to take a hit [or charge] on the gun."
Officers searched B.O.'s garage, which was "littered with 5/9 Brim graffiti," and found a .45 caliber semi-automatic pistol hidden in the ceiling. A criminalist with the San Diego Police Department crime lab firearms section determined that that weapon had fired the shell casings found at the scene of the June 14 shooting and those found at the scene of the April 17 murder of King.
Photographs of the graffiti in the garage were admitted as evidence. The prosecution's gang expert testified regarding some of the graffiti depicted in the photographs, including images depicting "5/9 Brims," "Young Hit Squad," "CK" or "Crip Killer," the numbers "3-11," which the expert opined referred to "CK" (depicted by assigning numerical value to the letters of the alphabet—C being the third letter and K being the eleventh letter of the alphabet), and "Blood, fuck you, Crabs, N word, stop that shit."
At Simpson's trial for King's murder, the parties stipulated that, in 2016, Simpson was convicted of two counts of attempted murder for the June 14, 2011 shooting, and that the attempted murder was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of Penal Code section 186.22, subdivision (b).
3. Jury Instructions
The jury was instructed with CALCRIM No. 375, "Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, Etc.," as follows:
"The People and the Defense stipulated that the defendant committed another offense that was not charged in this case.
"You may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:
"1. Identity
"The defendant was the person who committed the offenses alleged in this case; or
"2. Intent
"The defendant acted with the intent to commit the crime for the benefit of a criminal street gang in this case; or
"3. Motive
"The defendant had a motive to commit the offenses alleged in this case; or
"4. Common Plan
"The defendant had a plan or scheme to commit the offenses alleged in this case.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses.Consistent with these jury instructions, the prosecutor discussed the evidence of the June shooting, and in his closing argument told the jury it should consider the June shooting with respect to intent, motive, common plan, and identity.
"Do not consider this evidence for any other purpose.
"Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
"If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes charged in this case. The People must still prove each charge and allegation beyond a reasonable doubt."
G. Jury Verdict and Sentence
The jury found Simpson guilty of conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1), count 1), murder (Pen. Code, § 187, subd. (a), count 2), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), count 3), and found true the allegations that Simpson intentionally and personally discharged a firearm which proximately caused death, a principal personally and intentionally discharged a firearm, and the crimes were committed in association with and for the benefit of a criminal street gang (Pen. Code, §§ 12022.53, subd. (d), (e)(1), and 186.22, subd. (b)(1)). The court sentenced him to prison for a total term of 50 years to life.
DISCUSSION
A. Introduction of Evidence of the June 2011 Attempted Murder Was Neither Erroneous nor Prejudicial
Simpson argues the trial court erred by admitting evidence of the June 2011 shooting that resulted in his attempted murder conviction because it was more prejudicial than probative and its admission violated his due process rights under the federal Constitution.
1. Applicable Law
Evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).) Section 1101(b) "clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted (Ewoldt).) Section 1101(b) provides that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act." If evidence of an uncharged act is relevant, there is no distinction between an offense that occurred before and one that occurred after the date of the charged offense. (People v. Balcom (1994) 7 Cal.4th 414, 425-426.)
The admissibility of evidence under section 1101(b) depends on the degree of similarity between the uncharged act and the charged offense. (Ewoldt, supra, 7 Cal.4th at p. 402.) For evidence of uncharged acts to be admissible to prove such facts as motive, intent, identity, or common design or plan, the charged offenses and uncharged acts must be "sufficiently similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (Ewoldt, at p. 402.) To be admissible to prove intent, the uncharged misconduct need only be "sufficiently similar [to the charged offense] to support the inference that the defendant ' "probably harbor[ed] the same [or similar] intent in each instance." ' " (Ibid.) Similarly, " '[t]he existence of a motive requires a nexus between the [uncharged] crime and the [charged] one, but such linkage is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and present crimes.' " (People v. Thompson (2016) 1 Cal.5th 1043, 1115.)
In contrast, the highest degree of similarity is required to prove identity. "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' " (Ewoldt, supra, 7 Cal.4th at p. 403.)
If the court determines the evidence is relevant and admissible under section 1101(b), the court must next determine whether the probative value of the evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, confusing the issues, or misleading the jury. (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, § 352.)
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying Evidence Code section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638 (Karis).)
On appeal, we review the trial court's ruling under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) We do not disturb the trial court's exercise of discretion except upon a showing that it "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
2. Analysis
The trial court carefully examined the circumstances of the charged and uncharged offenses and concluded they were sufficiently similar to support a rational inference as to intent and motive, and that the circumstances of the uncharged offense were more probative than prejudicial. As we explain, the trial court did not abuse its discretion.
a. Evidence of the June Offense Was Admissible Under Section 1101(b)
The trial court found that evidence of the attempted murder was directly relevant to prove disputed, material issues—Simpson's motive to benefit a criminal street gang and his intent to kill in order to benefit a criminal street gang. We agree that evidence of the attempted murder was relevant to establish Simpson's motive and intent in killing King, a rival gang member.
Although motive normally is not an element of any crime, evidence of motive is always relevant because it " 'makes the crime understandable and renders the inferences regarding defendant's intent more reasonable.' " (People v. Riccardi (2012) 54 Cal.4th 758, 815, abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
The Court of Appeal's decision in People v. Zepeda (2001) 87 Cal.App.4th 1183, is instructive. In Zepeda, the defendant and the shooting victim were members of rival gangs. The victim was killed in an apparent gang-related drive-by shooting. (Id. at p. 1190.) The trial court admitted evidence of the defendant's involvement in a prior gang-related shooting, pursuant to section 1101(b), for the purposes of showing defendant's motive and intent. The trial court reasoned that the evidence would show " 'an intention upon the part of the defendant to engage in hostile action for no particular reason other than that the recipient of the hostile action is a member of an opposing gang,' " as well as " 'more than an average degree of motivation to follow the dictates of the gang . . . to pursue gang policy.' " (Zepeda, at p. 1211.) The Court of Appeal affirmed, explaining: "The prior incident was relevant to prove defendant's intent and motive. The fact that defendant previously committed a drive-by shooting, under circumstances indicating that he did so for gang-related purposes, helped show that he likely committed the instant drive-by shooting for gang-related purposes." (Id. at p. 1212.)
Similarly, here, the evidence of Simpson's attempted murder conviction involving rival gang members was relevant to prove Simpson's motive and intent to engage in violent crimes against an opposing gang member in the instant offense—without any reason or provocation other than to benefit his criminal street gang and pursue the gang's objectives. (Zepeda, supra, 87 Cal.App.4th at pp. 1211-1212.)
The requisite degree of similarity was met between the attempted murder conviction and the instant offense to support a rational inference that Simpson likely harbored the same or similar intent, and in each instance acted with a similar motive. (See Kipp, supra, 18 Cal.4th at p. 369.) Both offenses were gang-related, involving acts of gun violence against rival gang members committed in the presence of fellow 5/9 Brim gang members. They were geographically and temporally related, occurring within two months of each other and down the street from each other. We reject Simpson's claim that the two incidents, separated by approximately two months, were not sufficiently close in time. (See Zepeda, supra, 87 Cal.App.4th at p. 1212 ["As 'only a few years elapsed' between the two incidents, the probative value of the prior shooting was not affected."]; cf. People v. Harris (1998) 60 Cal.App.4th 727, 739 ["The remoteness of the evidence [involving a 23-year-old incident, with no similar incidents in the intervening years] weighs strongly in favor of exclusion."].)
In sum, evidence of the June 2011 shooting was properly admitted under section 1101(b) to show Simpson's motive and intent in killing King.
b. The Evidence Was Not More Prejudicial than Probative and No Due Process Violation Occurred
Having determined the trial court did not abuse its discretion in concluding the evidence is relevant and admissible under section 1101(b), the next inquiry is whether the trial court abused its discretion in concluding the probative value of the evidence is not substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, confusing the issues, or misleading the jury. (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, § 352.) Again, we conclude the trial court did not abuse its discretion.
Under Evidence Code section 352, testimony regarding the June 2011 attempted murder was substantially more probative than prejudicial. "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense." (Zepeda, supra, 87 Cal.App.4th at p. 1211.) As already discussed, the similarity requirement was met here because both cases involved shootings by 5/9 Brim gang members targeting rival gang members.
"Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense . . . ." (Zepeda, supra, 87 Cal.App.4th at p. 1211.) "The probative value of the evidence is enhanced if it emanates from a source independent of evidence of the charged offense . . . ." (People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran).) "On the other hand, the prejudicial effect of the evidence is increased if the uncharged acts did not result in a criminal conviction. This is because the jury might be inclined to punish the defendant for the uncharged acts regardless of whether it considers the defendant guilty of the charged offense and because the absence of a conviction increases the likelihood of confusing the issues, in that the jury will have to determine whether the uncharged acts occurred." (Ibid.) Moreover, "[t]he potential for prejudice is decreased . . . when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense." (Ibid.)
Applying these factors here supports the trial court's decision to admit evidence of the June attempted murder. Simpson was convicted of the June attempted murder in separate proceedings, and the source of much of the information regarding that crime was independent of the source regarding the charged offense. (Tran, supra, 51 Cal.4th at p. 1047.) Although evidence of another gang-related crime was likely damaging, "prejudicial" is not synonymous with "damaging" for purposes of Evidence Code section 352. (Karis, supra, 46 Cal.3d at p. 638.) As already indicated, the "prejudice" referred to in that section " 'applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (Ibid.) Here, the prejudicial effect of the challenged evidence is diminished because the June shooting—where no one was actually shot or injured—was significantly less inflammatory than the circumstances surrounding the charged offense, where the victim was repeatedly shot at point blank range, suffering gunshot wounds to the head, torso, and buttocks. (Tran, supra, 51 Cal.4th at p. 1047.) The court's limiting instruction—admonishing the jury not to "conclude from this evidence that the defendant has a bad character or is disposed to commit crime"—further minimized any prejudice to Simpson. (People v. Rogers (2013) 57 Cal.4th 296, 331-332 (Rogers); People v. Ghebretensae (2013) 222 Cal.App.4th 741, 755 [rejecting appellant's prejudice argument where limiting instruction precluded jurors from using prior crimes evidence to show propensity to commit charged offense].)
We likewise reject Simpson's contention that the attempted murder evidence was "merely cumulative" on the issues of intent and motive. (See Evid. Code, § 352 [allowing exclusion of evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time].) Simpson argues that testimony of two witnesses—Beasley, who participated in King's murder, and M.D., an acquaintance of Simpson—was adequate and undisputed as to Simpson's intent and motive in King's murder. But " '[e]vidence that is identical in subject matter to other evidence should not be excluded as "cumulative" when it has greater evidentiary weight or probative value.' " (People v. Scott (2015) 61 Cal.4th 363, 399.) Because defense counsel challenged the credibility of both Beasley and M.D. at trial, the circumstances surrounding the attempted murder of rival gang members, committed in the presence of other 5/9 Brim gang members for the benefit of the gang, could reasonably be construed to have greater evidentiary weight or probative value.
Simpson further argues "there was no dispute the offense was gang motivated." However, his position at trial—that he was not guilty of any of the charges or allegations (including the allegation that the crimes were committed in association with and for the benefit of a criminal street gang)—put the question of gang motivation squarely at issue. Even if Simpson strategically opted not to contest the gang-related motivation of King's murder, the prosecution is not precluded from eliciting testimony as to those issues. (See People v. Jones (2011) 51 Cal.4th 346, 372 [" '[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense.' "].)
Simpson stipulated that 5/9 Brims is a criminal street gang under Penal Code section 186.22, subdivisions (e) and (f), whose principal activities include murder, attempted murder, assault, shooting in inhabited dwellings, and robbery, but there was no stipulation that King's murder was committed in association with and for the benefit of a criminal street gang.
Finally, Simpson contends admission of the attempted murder evidence violated his due process rights by rendering his trial fundamentally unfair. We reject this claim. "Because the evidence was material, probative, and admitted under Evidence Code section 1101(b) on the legitimate issue of intent [and motive], defendant's due process right to a fair trial was not transgressed by the admission of such evidence." (Rogers, supra, 57 Cal.4th at p. 332.)
c. Any Alleged Error in Admitting Evidence of the Attempted Murder to Establish a Common Plan or Identity Was Harmless
Both parties agree the court's pretrial ruling allowed the attempted murder evidence under section 1101(b) for purposes of establishing motive and intent only. However, using the standard jury instruction, the trial court instructed the jury it could consider the June shooting evidence to prove the existence of a common plan and the defendant's identity (not just motive and intent). The Attorney General contends Simpson forfeited any claimed instructional error by failing to object to the standard jury instruction. In his reply, Simpson clarified that he is alleging an evidentiary error, not an instructional error. Simpson asserts for the first time in his reply that "even if the forfeiture argument was tenable, the failure to object to the instructional error and prosecutor's argument would have constituted ineffective assistance of counsel."
Because Simpson did not object to the jury instruction concerning the section 1101(b) evidence, or seek clarification, he forfeited that issue. (People v. Delgado (2017) 2 Cal.5th 544, 575.) Even if we consider his argument—either as a claim of instructional error (see Pen. Code, § 1259) or as evidentiary error—and assume without deciding that the trial court should not have admitted the evidence for purposes of showing common plan or identity, we conclude any assumed error was harmless.
Prior to trial, Simpson objected to admission of the uncharged act evidence for all purposes. The trial court overruled Simpson's objection, allowing the evidence for purposes of showing motive and intent. Simpson failed to object when the instructions permitted consideration of that evidence for the additional purposes of common plan or identity.
As discussed ante, evidence of the attempted murder was properly admitted to establish motive and intent under section 1101(b), and the evidence was substantially more probative than prejudicial under Evidence Code section 352. Even assuming the jury should not have been allowed to consider this evidence for purposes of establishing a common plan or identity (and the prosecutor should not have been permitted to make the same argument), it is not reasonably probable that a result more favorable to Simpson would have been reached absent the assumed error. (See People v. Malone (1988) 47 Cal.3d 1, 22 [erroneous admission of other crimes evidence is reviewed under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].)
Simpson acknowledges that "a state court's evidentiary error does not, standing alone, violate the federal Constitution" but contends the error here violated his due process rights by rendering his trial fundamentally unfair. As stated ante, we reject Simpson's due process claim and therefore evaluate his claim of prejudice under the Watson standard. --------
There was overwhelming admissible evidence establishing Simpson as the perpetrator of King's murder, including testimony of an accomplice to the murder that Simpson used the large, rifle-style gun to shoot King; eyewitness testimony describing an individual roughly Simpson's size and stature with dreads or braids as the individual who got out of the car to shoot an already-injured King at point-blank range; and witness testimony that, shortly after the shooting, Simpson cut off his braids "because of what had happened." Given the strength of this evidence, we conclude there was no reasonable probability of a result more favorable to Simpson absent any alleged error. (Watson, supra, 46 Cal.2d at p. 836.)
Because we conclude Simpson has not established he was prejudiced by the admission of the evidence or any potential error in the jury instruction, we likewise conclude that Simpson has not established his counsel provided ineffective assistance. (People v. Grimes (2016) 1 Cal.5th 698, 735 ["An attorney's performance is constitutionally deficient if (1) it falls below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant."]; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.)
B. Simpson Is Entitled to Remand for Resentencing Under Penal Code Section 12022 .53, Subdivision (h)
Simpson contends we should remand for resentencing to allow the trial court to exercise its discretion to strike the firearm enhancements under Penal Code section 12022.53, subdivision (h). That subdivision, which became effective after Simpson was sentenced, allows a trial court, "in the interest of justice pursuant to [Penal Code] [s]ection 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section." Simpson contends, and the Attorney General concedes, that this amendment applies retroactively to Simpson, whose judgment is not final, as his appeal is still pending. (See In re Estrada (1965) 63 Cal.2d 740, 744; People v. Francis (1969) 71 Cal.2d 66, 75-76.)
We agree that amended Penal Code section 12022.53, subdivision (h) applies retroactively to all nonfinal judgments, including Simpson's. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 424; People v. Chavez (2018) 22 Cal.App.5th 663, 712.) We further conclude remand is appropriate here—where there is no clear indication how the court would have exercised its discretion to strike or dismiss the firearm enhancements under Penal Code section 12022.53, subdivision (h) if it had the authority to do so. We vacate Simpson's sentence and remand for resentencing (McDaniels, at p. 425; Chavez, at pp. 713-714), but we express no opinion regarding how the trial court should exercise its discretion.
DISPOSITION
The matter is remanded for resentencing to allow the superior court to consider whether to exercise its discretion to strike or dismiss the firearm enhancement in accordance with the amendments to Penal Code section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.