Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF095149F
BUTZ , J.After a jury trial, defendant Sanbeira Thlang was found guilty of first degree murder (Pen. Code, §§ 187, 189) and several lesser or related offenses to the murder, as to which sentencing was stayed under section 654. The jury also found true a special circumstances allegation that the murder was committed while actively participating in a criminal street gang (§ 190.2, subd. (a)(22)) and enhancement allegations that the death was caused by intentional discharge of a firearm (§ 12022.53, subds. (d), (e)(1)), that defendant had a prior serious felony conviction (§ 1170.12), and, as to the stayed offenses, that they were violent felonies committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). Sentenced to state prison for life without parole and a consecutive term of 50 years to life, defendant appeals.
Undesignated statutory references are to the Penal Code.
Defendant contends that the trial court erred in: (1) admitting (a) evidence of a confession and (b) details of conduct underlying his prior conviction; (2) failing to remove a juror from the jury for misconduct; (3) failing to strike the prior serious felony conviction allegation; (4) imposing upper terms on some sentences, stayed under section 654; and (5) doubling certain enhancement terms as a result of the prior serious felony conviction. Only the last contention has merit. We shall modify the judgment regarding the sentence of doubled enhancement terms and affirm it as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
A little after midnight on the morning of February 21, 2005, Fortune Johnson, age 55, living near Astor Drive in North Stockton, decided to walk to the store. On the way, he saw Nath Sok, age 21, to whom he had been introduced a day or so before, come up behind him riding a bicycle. A Chevrolet Astro van, followed in tandem by a Camaro, drove past Johnson and Sok and then, together, the vehicles made a U-turn. Johnson had seen the same vehicles a half hour to an hour earlier going really fast around the block, when he was sitting out in front of his home. Uneasy, he began to walk faster. Sok had stopped about 50 feet behind Johnson.
Johnson witnessed the driver of the van hail Sok and speak to him in a calm voice. He also saw a number of Asian males get out of the van and the car. Sok stopped and responded boisterously. As soon as he did so, there was a fusillade of large-caliber gunshots and Sok was blasted back from his bike. Johnson took cover behind a car and, after a terrifying interval, the males calmly got back in the vehicles and “just cruised on away slowly on down the street.”
About a half hour past midnight, officers of the Stockton Police Department responded to a report of the shooting. When they arrived they found Sok lying dead on the lawn, next to the bicycle. He had been shot three times in the head and neck, and once in the penis. Five .40-caliber shell casings were in the middle of the street and one was next to the bike.
Sok had been documented as a member of the Loc Town Crips (LTC) gang and an associate of the Asian Street Walkers (ASW), another Stockton gang. The Astor Drive area is part of the territory claimed by the ASW gang. Tiny Rascal Gang (TRG) is a rival of LTC and ASW and a logical suspect for inter-gang violence. Defendant had been documented as a member of TRG by his own admission on February 5, 2005. In 2002 he had admitted a charge of assault with a firearm in a juvenile adjudication arising out of a TRG gang-related shooting where some of the assailants yelled “TRG” at the people who were shot.
The police investigation led to a silver van and a green Camaro on Wednesday, February 23, 2005, at the residence of reputed TRG associates. When the Camaro was driven away from the residence, officers stopped the car and interrogated the occupants, including S.C. Inside the car were a grey bandana, TRG’s gang color, some compact discs marked TRG, and a disposable camera. Film from the camera yielded photos of groups of TRG gang members, including defendant, displaying TRG gang signs. Songs on the compact discs extol TRG gang activities, including drive-by and walk-up shootings of opposing gang’s members, e.g., by “creepin’ up,” driving into other gang’s territory at night to catch enemies off guard.
On March 1, 2005, Stockton police detectives went to Seattle, Washington, where the Seattle Police Department had defendant in custody. After giving a Miranda warning they interrogated him.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
They explained to defendant that there had been an “incident” down in Stockton and they wanted to hear his side of the story. He denied gang affiliation. They said they were investigating a shooting on the 20th or 21st of February:
“You know our, our belief is that out of everybody there you were probably the, the least involved and I don’t want to put any words in your mouth. I got half of the story so I don’t want to say you know man I could make up a lot of things. You could be the guy that planned this whole thing and sent everybody out here to go look for enemies or you could just be the guy that was in the car and you don’t know what the hell’s going on and somebody starts shooting. I don’t know exactly, I got my own thoughts, my partner has his own thoughts about, about what happened but the only guy that can tell that other side of the story about what you did is you.”
The detectives told defendant they had already talked to everyone else and asked him to identify several pictures of persons involved in the shooting incident.
Defendant said he had argued with several of these people on a Sunday. They were TRG wannabes who tried to involve him in gang activity, but he told them he was out of TRG and wanted no part of it. “I don’t know they prob . . . they said he looking for enemies you know what I mean. Probably jump an enemy you know what I mean. Beat up an enemy shoot an enemy I don’t know you know what I’m saying so I told them I’m cool, I’m straight.” He told them he had already done four years “in some stupid[-]ass shit.” He knew nothing about any shooting.
The detectives implied they had witnesses stating he was involved. Defendant vigorously maintained he would not be swayed: “I’m going to go with my story.”
Defendant then continued: “Like the last time[,] you know what I mean[,] the last time I seen them was the Sunday we had a little bit of argument that was it. I don’t know you know what I’m saying if they trying to bring me up in the mix too with (unintelligible) . . . and all that you know what I’m saying. I told them, I’m out of the game already, you know what I’m saying. I’m not doing no mother fucking, no more mother fucking 25 to life for these mother fuckers.”
He rejected, over a protracted period, a series of gambits designed to persuade him to admit he was present at the shooting.
Then, as the detectives were winding up the interview, in the process of leaving, defendant asked to speak to Detective Youn Seraypheap, the officer of Cambodian ethnicity, alone. Detective Seraypheap agreed. The following comments by Detective Seraypheap ensued:
“I’m telling you thing is . . . listen, listen I don’t think you were the shooter to be honest with you. I’m, I’m being honest. I don’t think you were the shooter okay. I think you were just sitting in the Camaro and other people shot and you said oh fuck take me home okay after it happened. But it’s going to hurt you because you’re sitting here saying that you weren’t in [the] Camaro you understand that. That’s all I’m telling you. That’s all I’m trying to get out of you is that you know what I’d rather have you okay tell me the truth. Be a witness rather than be a suspect in this thing you understand that. [¶] . . . [¶]
“[I] mean I, I, I swear it on my two kids. [¶] . . . [¶] Okay, the thing is it doesn’t matter, it is matter you know at this point it doesn’t matter what you think or what you say it’s what other people say you understand that. [¶] . . . [¶]
“The thing is um, you know I, I don’t want to see you go to prison man I’m not lying to you. You know I didn’t fly all over here for nothing. The thing is that you know I know, I know I’m not. I know for a long time since he was a kid. I know (unintelligible) . . . when he got shot you know I was there. I know his dad, I’ve known him for twenty years okay. I talk to (unintelligible) . . . dad before I came out here and I know everything (unintelligible) . . . not at first to lie to me that he wasn’t there in Stockton (unintelligible) . . . I told him (unintelligible) . . . give me a little respect because I know, I do my homework before I come (unintelligible). I been working on this case since it happened and I truly, truly think you weren’t the shooter okay. I know exactly who shot alright [sic] but I, I, I can’t do anything for you when you’re sitting here telling to me I wasn’t in the Camaro when in fact everybody knows you were[,] you understand that. I truly don’t think you were the shooter and I want you, I’d rather use you as a witness than, than, than a suspect you know what I mean. I mean you can argue with me all you want you can . . . .”
Thereafter, following additional conversation, defendant admitted he was sitting in the Camaro when the shooting happened and he identified the other occupants of the vehicles. He maintained that he had no idea that the shooting was likely to occur.
S.C., age 13 at the time of the shooting, testified as follows: He was seated behind defendant in the Camaro, on the passenger side. He got out of the car and shotthe victim, Sok. When he returned to the car he handed the weapon back to defendant, who placed it under his seat. Before the vehicles commenced the fatal journey, he and the others had discussed looking for an enemy “slippin’,” i.e., leaving himself vulnerable to attack.
Two other occupants of the vehicles discharged firearms during the incident.
Reachhetra Pheng, a codefendant, testified, in part, as follows: On the night of the shooting, he was partying in a garage with defendant and two others. Three other males showed up; someone said, “let’s roll” and everybody left. Pheng was the last one to walk out; the Camaro was full, so he got in the van. The van took the lead, the Camaro followed. When they “busted a U” and “rolled up” on Sok, he heard gunshots, thought they were being shot at, and ducked for cover in the back seat.
DISCUSSION
I. No Error in the Admission of Defendant’s Allegedly “Coerced” Confession
Defendant contends the trial court erred in admitting into evidence his statements to the detectives who interrogated him in Seattle. He argues that his statements after Detective Seraypheap urged him to be a witness rather than a suspect were involuntary and inadmissible because this was an implied promise of benefit or leniency which induced him to admit he was present at the shooting. In his view, the witness/suspect dichotomy was a false representation that admitting he was present “would result in his being a mere witness and not a suspect and his release from custody.” The Attorney General replies that no such representation was made, as the remark, in context, was only an admonition that telling the truth about his presence at the scene could confer a tactical benefit. The Attorney General has the more persuasive argument and the contention of error lacks merit.
“‘It is axiomatic that the use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions. . . . In California, before a confession can be used against a defendant, the prosecution has the burden of proving that it was voluntary and not the result of any form of compulsion or promise of reward.’ [Citation.] . . . [T]he voluntariness of the statements must ‘be proved by a preponderance of the evidence at trial.’ [Citation.] In the absence of conflicting testimony, we ‘examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat.’” (People v. Cahill (1994) 22 Cal.App.4th 296, 310.)
Where there is a claim that a statement is involuntary because of a false promise of leniency, “The line ‘can be a fine one’ (People v. Thompson (1990) 50 Cal.3d 134, 169) between urging a suspect to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible, and impliedly promising lenient treatment in exchange for a confession, which is not.” (People v. Holloway (2004) 33 Cal.4th 96, 117 (Holloway).)
The trial court carefully analyzed this in its ruling on admissibility and concluded that, “while the bare words themselves could raise a valid argument of implied promise, taken in the context of the entire interview and based on the totality of the circumstances, [the argument is not persuasive].” We agree.
As the trial court noted, defendant was strong-willed and was sophisticated about the nature of police interrogation tactics in a serious case. Detective Seraypheap had earlier told him that regardless of whether he did the shooting or not, “I’ll tell you this right now, you can’t get off the hook. You have to answer to it.” After making the witness/suspect remark and before the incriminating admission, the detective told defendant that denying he was present “hurt[s] your case more.” This, too, implies that there will be a case against defendant regardless of an admission of presence.
There is no inkling in defendant’s behavior after the admission that he thinks he may have a bargain to be treated as a mere witness. In his statements he was careful to affirmatively assert that he just went along for a ride, indicating he was aware that he could be criminally liable even if he was not a shooter.
“[DEFENDANT]: The next you know bam, bam, bam, bam. I didn’t know nothing. I just look up what the fuck you know what I mean.
“Detective Seraypheap: Uh-huh.
“[DEFENDANT]: What happened you know what I’m saying.
“Detective Seraypheap: Uh-huh.
“[DEFENDANT]: Wow I just went inside the car (unintelligible) . . . I mean I sat, I sat in the car (unintelligible) . . . dropped me off at home.
“Detective Seraypheap: Uh-huh.
“[DEFENDANT]: But then my girl came and then I told my girl I’m like you know what I mean.
“Detective Seraypheap: Uh-huh.
“[DEFENDANT]: They said this and that but . . . you know what I mean I don’t . . . I didn’t really know what’s cracking.”
In Holloway, the Supreme Court reasoned as follows: “[S]uggestions that the killings might have been accidental or resulted from an uncontrollable fit of rage during a drunken blackout, and that such circumstances could ‘make[] a lot of difference,’ fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant [the] defendant any particular benefit if he told them how the killings happened. To the extent [the police officer’s] remarks implied that giving an account involving blackout or accident might help [the] defendant avoid the death penalty, he did no more than tell [the] defendant the benefit that might ‘“flow[] naturally from a truthful and honest course of conduct”’ (People v. Jimenez [(1978)] 21 Cal.3d [595], 612[, overruled on a different ground in Cahill, supra, 5 Cal.4th at pp. 509-510, fn. 17]), for such circumstances can reduce the degree of a homicide or, at the least, serve as arguments for mitigation in the penalty decision. As the appellate court explained in People v. Andersen [(1980)] 101 Cal.App.3d [563,] 583, ‘Homicide does possess degrees of culpability, and when evidence of guilt is strong, confession and avoidance is a better defense tactic than denial.’” (Holloway, supra, 33 Cal.4th at p. 116.)
In this case there was strong evidence that defendant was at the scene of the shooting. If he nonetheless denied he was present, it could strengthen an implication of mens rea. If he admitted he was present, he could claim to be a mere witness, unaware of the intent of the shooter. This would avoid loss of credibility in contradicting evidence that he was present. This was a benefit that might flow naturally from a truthful and honest course of conduct. In context, this was the import of Detective Seraypheap’s suspect/witness remark.
We do not believe that the remark was, or that defendant took it as, an assurance that admitting he was present “would result in his being a mere witness and not a suspect and his release from custody.” Even if the mention that defendant could be viewed as a witness was problematic, Detective Seraypheap’s statement is not attributable to an implied promise. Considering all the circumstances of this case, no improper coercion (by suggesting that defendant could benefit from giving a truthful, mitigated account of the shooting incident) caused him to admit he was present.
II. No Error in the Admission of Details of Defendant’s Prior Juvenile Adjudication
Defendant contends the trial court erred in ruling admissible, notwithstanding his objection under Evidence Code section 352, evidence of details of the offense underlying his prior juvenile court adjudication. He argues that the danger of undue prejudice substantially outweighed the probative value of that evidence. The argument is unpersuasive and the contention of error has no merit.
At the outset of trial, the prosecution asked for an in limine ruling that evidence about the prior adjudication was admissible to show: a predicate gang offense; knowledge or intent that defendant’s ride-along in the TRG tandem was facilitating a crime; and gang membership.
Under Evidence Code section 1101, evidence that a person committed a crime can be adduced regardless of propensity to show bad character, when relevant to prove motive, intent, plan, or knowledge. The trial court decided that the evidence of the details of the prior adjudication was relevant to defendant’s motive and intent, because the critical issue in this case was his state of mind--whether he knew “what was going on.” The court acknowledged that this evidence had a danger of undue prejudice, but concluded its relevancy outweighed the prejudicial effect.
The question is whether the trial court abused its discretion. The scope of appellate review of trial court discretion is variable. (See generally City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.) Formerly, appellate courts exercised a broader scope of review of decisions in criminal proceedings admitting potentially prejudicial evidence (see, e.g., People v. Beagle (1972) 6 Cal.3d 441, 451-453), revisiting the exercise of such discretion to promulgate common law standards for the range of discretion in particular contexts. However, under the California Constitution, article I, section 28, such free-ranging appellate intervention is no longer available. (See People v. Castro (1985) 38 Cal.3d 301.) We must uphold the exercise of discretion under Evidence Code section 352 unless the result is undeniably unreasonable, i.e., such that no jurist could reasonably maintain that the application of the governing principles warrants the result reached by the trial court. (Cf. People v. Muldrow (1988) 202 Cal.App.3d 636, 643-644.)
Evidence that defendant had previously participated in a TRG drive-up shooting has strong probative value to show that he was aware of the criminal intent of the other TRG members on the night of the charged offense and that he intended to aid or encourage them in a criminal enterprise. His defense, as he related in his statement, was that he had no such intent, he was surprised by the shooting: “I didn’t really know what’s cracking.” When evidence bears on such matters and they are significantly in dispute, it is substantially probative. (See People v. Ewoldt (1994) 7 Cal.4th 380, 406.) The trial court did not abuse its discretion in ruling the details of defendant’s prior offense were not substantially outweighed by the danger of undue prejudice.
III. Trial Court Did Not Err in Failing to Remove Juror No. 7
Defendant contends that the trial court erred in failing to remove Juror No. 7 (the foreman) during deliberations. He argues that the juror committed prejudicial misconduct in informing the other jurors that he had found a .22-caliber bullet placed standing on the hood of his car when he left the courthouse at the end of the day. We reject the argument, as the contention of error has no merit.
When the juror returned to court the day after finding the bullet, he told the bailiff and the other jurors about the incident, “because I look out for them. I mean, we should all look out for each other.” Defense counsel moved that the jury foreman be removed from the jury. He argued that a reasonable person would be intimidated by such an event and that it would affect the juror’s opinion of the case. After interviewing each of the jurors separately, the court found that the incident would not affect their ability to be fair and impartial and denied the motion.
Later that day, defense counsel moved for a mistrial on the ground that because of the incident, the jurors “are going to react to this by saying, ‘Hey, we better lock this guy up.’” The trial court denied the motion on the ground it was convinced from its discussion with the jurors that the incident would not affect their ability to be fair and impartial. Counsel thereafter commented that, in his opinion, Juror No. 7’s disclosure of the incident to the other jurors was misconduct.
The claim of misconduct tendered at trial is based on receipt of evidence from an extraneous source. Even though a juror does nothing improper, inadvertent receipt of information outside the court proceedings is considered “misconduct” and creates a presumption of prejudice. (People v. Zapien (1993) 4 Cal.4th 929, 994.) “To summarize, when misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.” (In re Carpenter (1995) 9 Cal.4th 634, 653.)
The “evidence” here was an implied threat of violence to Juror No. 7, the jury foreman. First, we do not find the threat inherently and substantially likely to have influenced the juror. The contrary view is implicit in the broad discretion given trial judges to deal with such situations. (See Annot., Threats of Violence Against Juror in Criminal Trial as Ground for Mistrial or Dismissal of Juror (1992) 3 A.L.R.5th 963.) Second, the nature of the misconduct and the surrounding circumstances do not compel a finding that it is substantially likely the juror was actually biased against defendant.
The trial court has the discretion under section 1089 to remove a juror for serious and willful misconduct. The trial court carefully questioned each juror and determined each was able to continue to perform the duty of a juror. Neither the innocent receipt of the threat “evidence” nor the alerting of the other jurors show serious and willful misconduct on the part of the juror who found the bullet. There is no compelling indication that he intended to violate any instruction of the court, hence no inference he was untrustworthy. (Cf. People v. Daniels (1991) 52 Cal.3d 815, 864.) The trial court did not err in failing to remove Juror No. 7.
IV. Prior Juvenile Adjudication May Be Used to Enhance Defendant’s Sentence
Defendant contends that the trial court erred in allowing the use of his juvenile adjudication for assault with a deadly weapon as a prior strike. He relies on the decision of the Court of Appeals for the Ninth Circuit in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187. Tighe reasons that a prior nonjury juvenile adjudication cannot be used to increase the penalty beyond that authorized for the current offense alone, finding that under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] a “prior conviction” can be so used only if “obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” (Tighe, supra, at p. 1194; see also id. at p. 1197.) As defendant acknowledges, this court has rejected the Tighe view in People v. Palmer (2006) 142 Cal.App.4th 724, 727. Palmer is supported by the rejection in People v. Black (2007) 41 Cal.4th 799, 819, footnote 8 (Black II) of the claim that the federal right to jury trial includes the right to a jury determination on prior conviction allegations. We follow Palmer and find the contention of error lacks merit for the reasons given therein.
V. No Error in Imposition of Upper Term Sentences on Stayed Counts
Defendant contends that the trial court erred in imposing the upper term for the stayed lesser related offense convictions for reasons other than a prior conviction or embodied in findings made by the jury. He argues that the statement of any such reason for imposing an upper term violates the federal jury trial guarantee, as explained most recently in Cunningham v. California (2007) 549 U.S. ___, ___ [166 L.Ed.2d 856, ___] (Cunningham). The Attorney General replies that as long as the sentencing choice is warranted by a fact permitted under Cunningham, there is no error. In Black II, the Supreme Court endorsed that view, and so, perforce, do we.
The trial court imposed the upper term on convictions of shooting from a motor vehicle, shooting at an inhabited dwelling, and street terrorism, all of which were stayed. It gave the following reasons for aggravation:
“As to Count 2, which was a lesser, the Court has found the following factors in aggravation:
“That the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
“That the victim was particularly vulnerable;
“That the manner in which the crime was carried out indicated planning, sophistication, or professionalism;
“That defendant has engaged in violent conduct, which indicates a serious danger to society;
“And that his prior convictions as an adult or sustained petitions are numerous or of increasing seriousness.”
Defendant does not dispute that the latter-most reason is predicated on facts that need not be submitted to a jury. (Black II, supra, 41 Cal.4th at pp. 818-820.) He argues this is immaterial because it cannot be determined whether the upper term would have been imposed without support from the other reasons given for selecting the upper term. However, this argument has been overtaken by the Black II opinion: “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Thus, there was no Cunningham error in this case.
VI. Increasing the Sentences for Enhancements Because of Defendant’s Prior Strike Was Error
Defendant contends that the trial court erred in doubling his enhancements because of the prior strike. (People v. Dominguez (1995) 38 Cal.App.4th 410, 424; accord, People v. Hardy (1999) 73 Cal.App.4th 1429, 1433.) The Attorney General concedes the point. We accept the concession.
DISPOSITION
The judgment is modified to reflect a sentence of life imprisonment with the possibility of parole with a minimum term of 25 years on the section 12022.53, subdivision (d) enhancement to count 1 and 10 years for the section 186.22, subdivision (b)(1)(C) enhancements on the stayed counts 2 and 3. The trial court is directed to send a certified copy of an amended abstract of judgment to the Department of Corrections and Rehabilitation in accordance with this modification. As so modified, the judgment is affirmed.
We concur: SCOTLAND , P.J., NICHOLSON , J.