Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F08563
NICHOLSON, Acting P. J.
The defendants, acting together with other gang members, went to the home of a person with whom one of the gang members had a conflict. Verbal aggression quickly turned to gunplay before the defendants fled. Convicted by jury of assault with a firearm, participation in a criminal street gang, and shooting at an inhabited dwelling, along with true findings of criminal street gang allegations, the defendants were sentenced to state prison. On appeal, they make numerous assertions challenging the judgment and sentencing. We find that there was insufficient evidence to sustain the gang conviction and enhancements and therefore reverse the judgment as to that conviction and those enhancements. Otherwise, we affirm.
FACTS
Although there were different versions of facts recounted by the various witnesses and defendants, and even different versions at different times from the same witnesses and defendants, we provide here a summary of the facts viewing the evidence in the light most favorable to the judgment. (See People v. Maury (2003) 30 Cal.4th 342, 403 [sufficiency of evidence standard].)
Background
According to Asian gang expert Jeffrey Beezley, a detective in the Sacramento Police Department, the defendants were members of the Sex Maniac Crips (SMC) at the time they committed the crimes involved in this case. The SMCs are an Asian criminal street gang.
The incident at issue in this case took place at the Thao residence on 50th Avenue in Sacramento. Brothers Meng Thao and Mua Thao, both adults, lived there with their parents and other family members. Mua Thao associated with the Crazy Hmong Boys (CHB) but was not a member of the group. Detective Beezley had heard of the CHBs, that they were possibly rivals to the SMCs, but, until this case, he had not met anyone who associated with the CHBs, and they were not known to be a criminal street gang. Mua Thao testified that the CHBs are a “group of boys that are tired of getting picked on.”
On September 5, 2005, Mua Thao was at Rainbow Studio to have pictures taken with his wife, daughter, and sister Ramsey Thao. Some of Ramsey’s friends were also there. While the group was there, another group, consisting of Thai Vang, Isabella Yang, and Crystal Cha arrived at the studio. Ramsey and Crystal started to argue and then physically fought until Crystal was on the ground with Ramsey and her friends over her. Mua broke up the fight at this point, and he and his group left the studio.
Ten days later, on September 15, Mua Thao drove his sisters to school at Luther Burbank High School. As he was dropping off his sisters, he saw Thai Vang sitting close by with some friends. Mua left his car and walked up to Thai because Mua had heard that Thai was spreading rumors about Mua. When Mua asked Thai about the rumors, Thai laughed at him. Thai asked, “Does this have to do with SMC?” And Mua responded, “No. This -- this one is between you and me.” Then Mua left.
Crimes
During the evening of the same day that Mua Thao confronted Thai Vang about spreading rumors, Thai complained to several friends about Mua’s actions earlier that day. The group, including defendants Xue Thao, Tua Lee, and Leng Vang, decided to go to Mua’s residence. In all, a group of 10 men went to Mua’s residence in three cars -- a gold Honda Civic, a burgundy Toyota Corolla, and a silver Toyota Echo. Another car, a black Acura Integra with a 20-year-old male driver and four minor female passengers, accompanied the other three cars.
Meng Thao had just returned home from work and was still in front of the house when the gold Civic drove up and parked behind Meng’s car. The burgundy Corolla and silver Echo stopped along the street near the residence of Meng and Mua Thao. The black Acura stopped along the street six or seven houses away from the residence of Meng and Mua Thao.
Defendant Leng Vang got out of the Corolla, and Thai Vang handed him a baseball bat. Defendant Vang asked for Mua Thao and yelled, “You guys messing with Thai. This is SMC. You want to start some shit? Fuck you all.” Several other men, some of whom were wielding baseball bats, got out of the cars and also yelled for Mua to come out. Meng Thao tried to avoid a confrontation by telling the men that Mua was not home, but eventually Mua exited the front door, asking the men what they wanted.
Defendant Vang said, “Let’s chunk,” meaning, “let’s fight.” Someone in the group approaching the residence said, three or four times, “Grab the gun.” After hearing a gunshot, Meng Thao ran into the residence. Mua Thao took cover behind Meng’s car in the driveway. At this point, defendant Vang was standing in front of the house with a baseball bat. Defendant Thao was standing next to the gold Civic.
Meng Thao came out of the residence with a shotgun. Mua Thao heard a gunshot come from across the street. The group began to scatter as Meng fired the shotgun. Mua ran into the house and told the relatives inside to get down. Meng ran to the gold Civic, which was empty, and fired a shot into the steering wheel. One of the group standing at the side of the residence fired a handgun two or three times at Meng. A .38-caliber bullet, most likely shot from a handgun, struck Tsim Lee, of the group that came to the residence, in the left arm. Two shots came from the Corolla as it was leaving. The three defendants and two other men were in the Corolla, with defendant Thao driving.
The group left, either in cars or on foot, leaving the gold Civic. Meng and Mua Thao vandalized the Civic before the police arrived.
The police found a bullet hole in the side wall of the house and a bullet slug inside the house. Outside, they found several bullet casings. The handgun that fired the bullet found inside the house was discovered in a search of defendant Lee’s bedroom. Mua Thao identified defendant Vang as the person who shot at him. Tsim told an officer that the group had passed around a handgun and that he thought that defendant Thao fired it at Meng Thao.
Additional facts are recounted as they become relevant to the discussion.
PROCEDURE
The district attorney filed an information charging all three defendants with assault with a firearm (Pen. Code, § 245, subd. (a)(2); count one), participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count two), and shooting at an inhabited dwelling (Pen. Code, § 246; count three). With respect to counts one and three, the district attorney alleged that the crime was committed for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).)
A jury found each of the defendants guilty as charged, including the gang allegations. The trial court sentenced the defendants identically to an indeterminate term of 15 years to life for shooting at an inhabited dwelling for the benefit of a criminal street gang. (Pen. Code, §§ 246, 186.22, subd. (b)(1); count three.) The court imposed a concurrent determinate term of eight years (middle term of three years for the crime and five for the enhancement) for assault with a firearm, also for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (a)(2); 186.22, subd. (b)(1); count one.) And the court imposed but stayed the upper term of three years for participation in a criminal street gang. (Pen. Code, §§ 186.22, subd. (a); 654.)
Each defendant joins in the arguments of the others. Therefore, we do not discuss who raised each issue, unless the contention relates only to that defendant.
I
Criminal Street Gang Conviction and Enhancements
The defendants make several contentions with respect to the criminal street gang conviction and enhancements. They assert: (A) the evidence was insufficient to sustain the gang conviction, (B) the evidence was insufficient to sustain the gang enhancements, and (C) the 15-to-life sentence, imposed in connection with the gang enhancement, could not be imposed because it was not specifically pled. We find merit in the first two assertions -- that there is insufficient evidence to sustain the gang conviction and enhancements -- and reverse as to that conviction and those enhancements. We therefore need not consider the sentencing issue.
Because, for our purposes, the elements of a gang conviction pursuant to Penal Code section 186.22, subdivision (a) are the same as the elements of the gang enhancements pursuant to subdivision (b) of the same code section, we consider them together. We conclude that the prosecution failed to present sufficient evidence of the primary activities element of the gang conviction and enhancements.
Penal Code section 186.22, subdivision (a) states: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
Defendants also contend that there was insufficient evidence that they knew that the gang’s members engaged in a pattern of criminal activity. (See People v. Robles (2000) 23 Cal.4th 1106, 1115.) We need not consider this contention.
“Where there is a claim of insufficient evidence, ‘we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.] ‘Unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict” the conviction will not be reversed. [Citation.]’ [Citation.] We apply the same standard to convictions based largely on circumstantial evidence. [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.) “In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.)
To be recognized as a “criminal street gang,” for the purpose of a conviction for participation in a criminal street gang or an enhancement for commission of an offense for the benefit of a criminal street gang, a group must engage in, as one of its primary activities, one of the felonies specified in Penal Code section 186.22, subdivision (e). (Pen. Code, § 186.22, subd. (f).) As relevant to this case, those specified felonies include assault with a deadly weapon and vehicle theft. (Pen. Code, § 186.22, subds. (e)(1) & (25).) The jury instruction on primary activities listed only these two felonies from the statutory primary activities list. The defendants assert that there was insufficient evidence presented to establish that the primary activities of SMC, their criminal street gang, included assault with a deadly weapon and vehicle theft.
Penal Code section 186.22, subdivision (f) provides the definition of “criminal street gang”: “As used in this chapter, ‘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 the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), 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.”
To satisfy the primary activities element of the gang statute, the prosecution must establish that the listed crimes are among the gang’s chief or principal activities. This can be proven with evidence that the gang consistently and repeatedly committed the crimes. Expert testimony that a gang is primarily engaged in the specified crimes is sufficient to satisfy the primary activities element. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324.)
“[B]ecause the culture and habits of gangs are matters which are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact’ (Evid. Code, § 801, subd. (a)), opinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. [Citation.] Such an expert -- like other experts -- may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. [Citations.] Such opinions may also be based upon the expert’s personal investigation of past crimes by gang members and information about gangs learned from the expert’s colleagues or from other law enforcement agencies. [Citations.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.)
Detective Beezley testified that he was familiar with SMC gang members from personal contact, crime investigations, and reports of other investigators. He either knew about or had been involved in arrests of SMC gang members for vehicle theft, felony assaults, possession for sale of narcotics, weapons possession, and a drive-by shooting. Although he is an expert on Asian gangs and, at the time of trial, had worked full-time investigating and keeping track of Asian gangs in Sacramento for two years, Detective Beezley had only had about 10 personal contacts with people he considered to be SMC gang members. Some of these contacts were custodial and others were noncustodial, casual contacts.
Detective Beezley testified concerning two specific incidents of criminal conduct: (1) a vehicle theft by a person who was possibly an SMC gang member and (2) an assault with a deadly weapon by a person who was later validated as an SMC gang member.
Concerning the vehicle theft, Detective Beezley testified about a report from the Folsom Police Department. A car was stolen from in front of a residence in March 2003. Fingerprints found in the car after recovery were of Yia Vang, who was convicted of vehicle theft. Although Detective Beezley knew Yia Vang to be a member of the SMC gang, he did not know whether Yia Vang had been a member of the gang in March 2003 when he committed the vehicle theft. When asked about whether Yia Vang was a gang member when he committed the vehicle theft, even if he was not yet a validated gang member, Detective Beezley responded: “I can’t speak from experience. I did not work Asian gangs at that point. It’s quite possible, but I do not know for a fact.”
At oral argument, the deputy attorney general argued that this constituted substantial evidence that, at the time of the vehicle theft, Yia Vang was a gang member and just had not yet been validated. We disagree. Detective Beezley’s testimony that he did not know whether Yia Vang was a gang member when he committed the vehicle theft does not support a reasonable inference that Yia Vang committed the crime when he was a gang member.
Concerning the assault with a deadly weapon, Detective Beezley testified about his own investigation of a crime committed by Blong Vang. In April 2005, an SMC gang member wanted out of the gang. Other SMC gang members went to his house and beat up his brother. Blong Vang, one of the assailants, hit the brother between the eyes with a handgun. Based on this conduct, Blong Vang was convicted of assault with a deadly weapon.
The jury was instructed that only (1) assault with a deadly weapon and (2) vehicle theft can be used for the primary activities element of the gang conviction or enhancement. Therefore, it could not rely on any other crimes that may have been committed by the SMC to find the primary activities element.
The only two details of evidence relating to vehicle theft were Detective Beezley’s testimony that an SMC arrest involved a vehicle theft and that Yia Vang was convicted of vehicle theft. It appears that Yia Vang’s arrest and conviction may have been the basis for both of Detective Beezley’s details. Since we conclude that the evidence was insufficient to establish that Yia Vang was a member of the gang when he committed the vehicle theft, we cannot conclude that there was sufficient evidence to establish that one of the SMC gang’s primary activities was vehicle theft.
That leaves assault with a deadly weapon. We conclude that, even though there was evidence of at least one assault with a deadly weapon prior to the current crimes, that is insufficient to establish that assaults with a deadly weapon are a primary activity of the SMC gang.
Detective Beezley’s list of crimes for which SMC gang members had been arrested included felony assaults and a drive-by shooting. These may or may not be assaults with a deadly weapon. Without more details, the jury could not conclude that they were assaults with a deadly weapon. Even if the Blong Vang assault was one of the felony assaults, there is no indication that the other felony assaults (which Detective Beezley referred to using the plural) were assaults with a deadly weapon. Therefore, the evidence supports an inference of only one assault with a deadly weapon.
The Attorney General does not argue that the arrest for a drive-by shooting, referred to by Detective Beezley, was an assault with a deadly weapon. Since a drive-by shooting may refer to any one of a few different crimes, it is not reasonable to infer that SMC members engage in assaults with a deadly weapon from Detective Beezley’s testimony concerning an arrest for a drive-by shooting. In any event, the jury was not instructed that a drive-by shooting is or may be an assault with a deadly weapon.
There is in the record, therefore, substantial evidence of just two criminal incidents that are relevant to the primary activities element of the gang conviction and enhancement. Those are the April 2005 assault with a deadly weapon by Blong Vang and the current crimes, committed in September 2005. This evidence does not support an inference that SMC gang members consistently and repeatedly engage in assaults with a deadly weapon. Expert testimony based on weak, insubstantial evidence will not suffice. (People v. Perez (2004) 118 Cal.App.4th 151, 160 (Perez).)
In Perez, a gang expert testified that the defendant’s gang had participated in (1) the retaliatory shootings of a few individuals over a period of less than a week and (2) a beating six years earlier. (Perez, supra, 118 Cal.App.4th at pp. 157, 158, 160.) The court found the testimony insufficient to establish that the group’s members consistently and repeatedly committed criminal activity listed in the gang statute. (Id. at p. 160; cf. People v. Vy, supra, 122 Cal.App.4th at pp. 1224-1225 [commission of two felony assaults and one attempted murder over less than three-month period sufficient to support primary activities element].)
As in Perez, the evidence presented through Detective Beezley does not support a jury finding that the SMC gang members consistently and repeatedly engage in assaults with a deadly weapon. Therefore, the evidence was insufficient to sustain the primary activities element of the gang statute, and the gang conviction and enhancements must be reversed.
II
Cross-examination of Victims
Before trial, the prosecution sought an order excluding any evidence that Meng and Mua Thao were arrested for assault with a deadly weapon after the incident at their residence. In making the motion, the prosecution relied on the lack of relevance of the arrests and on the trial court’s discretion to exclude evidence pursuant to Evidence Code section 352. No charges were filed against Meng and Mua Thao. The defendants objected to the exclusion of the evidence. The trial court ruled that the underlying conduct supporting the arrest could be presented and likewise any evidence of a statement Meng and Mua Thao may have made while under arrest. However, the trial court ruled that the bare fact of the arrest to impeach the credibility of Meng and Mua Thao would be excluded.
On appeal, the defendants assert that the exclusion of cross-examination of Meng and Mua Thao concerning their arrest for assault with a deadly weapon was an abuse of discretion. They claim that the fact of the arrest would show bias in their statements to police and testimony in court because they were motivated to deflect blame for the incident. We conclude that, in light of the plentiful evidence of Meng and Mua Thao’s bias and the marginal relevance of the actual arrest, the trial court did not abuse its discretion in excluding the arrest evidence. We further conclude that the constitutional due process and confrontation objections were forfeited because they were not raised in the trial court and, in any event, they are without merit.
A. Discretionary Exclusion
Although not directly germane to the issue of guilt, a “matter collateral to an issue in the action may nevertheless be relevant to the credibility of a witness who presents evidence on an issue . . . .” (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) However, the admissibility of such collateral matter lies within the trial court’s discretion, and its ruling “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (Id. at pp. 9-10.)
Normally, evidence of an arrest is excluded because its prejudicial effect substantially outweighs its probative value. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1523.) Evidence that a person was arrested tends to lead the jury to infer bad character. (See Grudt v. Los Angeles (1970) 2 Cal.3d 575, 592.) 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.”
The issue of the credibility of Meng and Mua Thao was fully explored, and the fact that they were arrested would have added little, if anything, to the jury’s determination of the issue. Who fired the first shot, either Meng Thao or someone in the group with the defendants, was a hotly contested issue. The defendants presented evidence and argued that Meng Thao fired the first shot and that he was the one guilty of assault with a deadly weapon. The jury was told that Meng and Mua Thao were arrested for vandalism. Mua Thao was cross-examined about whether he was concerned that his brother would be prosecuted for assault with a deadly weapon. Meng and Mua Thao stated that they testified under a grant of immunity. And the defendants’ attorneys argued during closing argument that the testimony of Meng and Mua Thao was not believable because they were trying to deflect blame onto the defendants.
Therefore, regardless of whether the defendants were allowed to elicit evidence that Meng and Mua Thao were arrested for assault with a deadly weapon, the defendants could, and did, argue that the statements and testimony of Meng and Mua Thao were not credible because they had a motive to deflect blame for their part in the incident. Even if the evidence of arrest of Meng and Mua Thao was marginally relevant to their credibility, their credibility was an issue fully explored. The trial court did not abuse its discretion pursuant to Evidence Code section 352 to exclude the evidence because the prejudicial effect of evidence that Meng and Mua Thao were arrested substantially outweighed the probative value.
B. Due Process and Confrontation Rights
The defendants also contend that the exclusion of cross-examination concerning the arrest of Meng and Mua Thao violated their constitutional due process and confrontation rights. We reject this contention because (1) the defendants failed to object on constitutional grounds and (2) the discretionary exclusion did not violate the defendants’ constitutional due process and confrontation rights.
1. Forfeiture
The defendants did not object on constitutional grounds to the trial court’s ruling concerning evidence of the arrest of Meng and Mua Thao. The claim that the court’s ruling violated their constitutional due process and confrontation rights is therefore forfeited. (People v. Partida (2005) 37 Cal.4th 428, 433-434.)
2. Merits
In any event, the trial court’s ruling did not violate the defendant’s due process and confrontation rights. Generally, a trial court’s rulings consistent with ordinary rules of evidence do not violate a defendant’s constitutional rights. (People v. Lucas (1995) 12 Cal.4th 415, 464.) That is the case here.
“Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense. . . . [T]he exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due process requirements. [¶] We do not mean to imply, however, that a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.” (People v. Reeder (1978) 82 Cal.App.3d 543, 553, original italics.)
As noted above, the evidence of the arrest of Meng and Mua Thao for assault with a deadly weapon was not of significant probative value considering the amount of evidence of the related circumstances presented concerning their credibility. The exclusion, therefore, did not violate their constitutional rights.
III
Evidence that Lee Had Thao’s Gun
Defendant Tua Lee contends that the trial court erred by denying his motion to strike evidence, based on the hearsay rule, that he borrowed a gun from defendant Xue Thao. The contention is without merit because there was evidence that the witness was testifying from personal observation.
Witness Tsim Lee, one of the group that went to the residence of Meng and Mua Thao, testified concerning defendant Lee’s possession of defendant Thao’s gun. Tsim Lee’s testimony was evasive and inconsistent at times. However, during questioning about whether defendant Lee borrowed the gun, Tsim Lee stated that it was true. After the testimony that defendant Lee borrowed the gun, the following exchange took place between defendant Lee’s counsel and Tsim Lee:
“Q You just said that it was Tua Lee that borrowed the gun?
“A Yes.
“Q Do you know when he borrowed the gun?
“A Two days before the incident.
“Q Did you actually see that or did you hear that from someone else?
“A I seen it.”
Later, Tsim Lee testified that he heard through gossip about defendant Lee borrowing the gun. He stated that he heard it from a girl named Pang Lee.
Based on the hearsay rule, defendant Lee moved to strike Tsim Lee’s testimony that defendant Lee borrowed the gun. The trial court denied the motion, stating:
“[T]hat witness testified to several different things at different times or a whole lot of different things and a whole lot of different times.
“But your motion was that his testimony with regard to seeing the gun given to [defendant] Lee be struck from the record. [¶] . . . [¶]
“. . . That would be based on the testimony, later testimony that he did not actually see the gun transferred, that someone told him, and I believe he finally even gave a name.
“The problem I have with that is at another point in his testimony he actually expressed that he saw the gun being transferred.
“So I’m not sure if he saw it or if he didn’t see it, but all I could say is that there was testimony sufficient enough that I think I’d have a hard time striking . . . .”
The hearsay rule requires exclusion of evidence based on hearsay, unless there is an exception to the rule. (Evid. Code, § 1200.) A witness must testify from personal knowledge. (Evid. Code, § 702.) If there is a reasonable question, based on the evidence, concerning whether or not the witness had personal knowledge, the trial court admits the evidence and allows the jury to determine whether the witness had personal knowledge. (People v. Lewis (2001) 26 Cal.4th 334, 356.)
On appeal, defendant Lee insists that the trial court’s interpretation of the testimony was wrong in that the testimony did not allow for a conclusion that Tsim Lee had seen the exchange of the gun. We disagree. Defendant Lee’s interpretation -- that Tsim Lee did not see the exchange of the gun -- is only one possible interpretation of the testimony of this prevaricating witness. It was for the jury to decide which version of the witness’s story to believe, if any. The trial court was not required to strike the testimony just because later testimony was inconsistent.
IV
Reference in Testimony to Probation
Before trial, defendant Lee moved for an order excluding evidence that he was on probation at the time he committed the crimes for which he was being prosecuted. A gun had been found in his residence as a result of a probation search. The trial court granted the motion and allowed the prosecution witness to refer to the search as a “lawful search,” instead of identifying it as a probation search.
Probation Officer Jolene McArdle testified that she is a senior deputy probation officer for the County of Sacramento, specializing in Southeast Asian gangs. As part of her duties she works with outside agencies to investigate gang-related crimes. Detective Beezley, in his testimony concerning the search of defendant Lee’s residence, stated: “Probation Officer McArdle pulled up the pillow to the bed, at the top of the bed, and the gun was right beneath the pillow.” Defendant did not object to this reference to “Probation Officer McArdle.”
On appeal, defendant Lee contends that the reference to the probation officer allowed the jury to infer that defendant Lee was on probation and had committed a prior crime because a probation officer participated in the search of his residence. Therefore, asserts defendant Lee, the jury may have used the fact of his prior crime to show propensity to commit crimes, in violation of his right to a fair trial.
Generally, propensity evidence is inadmissible. “Evidence that involves crimes other than those for which a defendant is being tried is admitted only with caution, as there is the serious danger that the jury will conclude that defendant has a criminal disposition and thus probably committed the presently charged offense. [Citations.]” (People v. Thompson (1988) 45 Cal.3d 86, 109.)
Defendant Lee argues: “The only inference a reasonable juror could draw from this reference [to the probation officer] is that Lee must have been on probation at the time of the search and thus must have committed some sort of crime in the past.” This is a stretch. Because of (1) the prior testimony by the probation officer and (2) the passing nature of the reference, it is probable that the jurors drew no inference at all from the identification of the searching officer as a probation officer. Even if the jury noticed that the word “probation” was used, there was nothing more that would lead the jury to believe defendant Lee was on probation, only speculation. Probation Officer McArdle testified that she assists outside agencies in investigations. The passing reference to her presence during the search of defendant Lee’s residence is not enough for us to say that defendant’s right to a fair trial was violated because of possible misuse of the information by the jury.
The cases defendant Lee relies on to make his argument were based on much more explicit references. In People v. Ozuna (1963) 213 Cal.App.2d 338, at page 339, the jury was told that the defendant was an “ex-convict.” In People v. Figuieredo (1955) 130 Cal.App.2d 498, at pages 505 to 506, the jury was told that the defendant did time in San Quentin. In People v. Stinson (1963) 214 Cal.App.2d 476, at pages 479 to 480, an officer testified that the defendant’s parole officer came to talk to the defendant while he was being questioned concerning the crime for which he was being prosecuted. Here, the jury was told only that a probation officer was involved in the search of defendant Lee’s residence. No more. Under these circumstances, it is unreasonable to infer that the jury not only caught the reference but also inferred from the reference that defendant Lee was on probation. Nor is it reasonable to conclude that the jury used such speculation in a manner that violated defendant Lee’s fair trial rights.
V
Factors in Denying Probation
Defendant Lee contends that, in denying him probation, the trial court mentioned factors that cannot be used to deny probation. He asserts that we must reverse and remand for reconsideration of the decision to deny probation, even though defendant Lee did not object in the trial court to the use of improper factors. We need not consider this contention because the case must be remanded for resentencing as a result of the reversal of the gang conviction and enhancements.
VI
Penal Code section 654 and Count One
At sentencing of each of the defendants, the trial court imposed an indeterminate term of 15 years to life for shooting at an inhabited dwelling (count three) and a concurrent determinate term of eight years for assault with a firearm (count one). The defendants assert that the trial court violated Penal Code section 654 by sentencing them to a concurrent term for count one rather then staying the sentence. Because the evidence presented at trial supported a finding that shooting at the inhabited dwelling and assault with a firearm were divisible transactions, we conclude the defendants’ assertion is without merit.
Although we reverse and remand for resentencing, this is an issue that may arise on resentencing. Therefore, we consider it to assist the parties and court on remand.
Penal Code section 654 provides that “an act or omission that is punishable in different ways by different provisions of law” may not “be punished under more than one provision.” “This provision ‘protects against multiple punishment, not multiple conviction. [Citation.]’ [Citation.] Although it ‘literally applies only where such punishment arises out of multiple statutory violations produced by the “same act or omission,”’ [the Supreme Court has] extended its protection ‘to cases in which there are several offenses committed during “a course of conduct deemed to be indivisible in time.” [Citation.]’ [Citation.]” (People v. Oates (2004) 32 Cal.4th 1048, 1062.) Penal Code section 654 does not, however, apply to crimes of violence against multiple victims. (People v. King (1993) 5 Cal.4th 59, 78.)
Here, Meng and Mua Thao were not the only victims. The evidence showed that their relatives were inside the house at the time the defendants shot at the house. Thus, the trial court properly imposed concurrent terms for shooting at an inhabited dwelling and assault with a firearm because there were multiple victims. (See People v. Cruz (1995) 38 Cal.App.4th 427, 434 [concurrent sentences valid for assault with a firearm and discharging a firearm at an occupied building].)
VII
Miscalculation of Presentence Custody Credits
Defendant Lee and defendant Vang each contend that the trial court miscalculated his presentence custody credits and that he is entitled to one more day. The Attorney General agrees with both defendants.
“Under [Penal Code] section 4019, presentence conduct credit is calculated ‘by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]’ [Citation.].” (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.)
Defendant Lee served 273 actual days in custody, 195 days before conviction and another 78 days between conviction and sentencing. 273 divided by 4 equals 68.25, and 68 times 2 equals 136. 273 plus 136 equals 409 days of presentence custody credit. He was awarded 408 days; therefore, he is entitled to one more.
Defendant Lee was in custody from September 22, 2005, to April 4, 2006, and from August 11, 2006, to October 27, 2006, when he was sentenced.
Defendant Vang served 114 actual days in custody, 36 days before conviction and another 78 days between conviction and sentencing. 114 divided by 4 equals 28.5, and 28 times 2 equals 56. 114 plus 56 equals 170 days of presentence custody credit. He was awarded 169 days; therefore, he is entitled to one more.
Defendant Vang was in custody from September 23, 2005, to October 28, 2005, and from August 11, 2006, to October 27, 2006.
The trial court must award the proper custody credits on remand for resentencing.
VIII
Evidence About Witnesses’ Immunity Agreements
During the prosecution’s case, counsel for defendant Vang cross-examined Meng Thao. Counsel asked: “And it’s been mentioned that you’re testifying under a grant of immunity, correct?” Meng Thao responded: “Right.” Counsel asked: “An[d] what’s your understanding of how that works?” The prosecutor objected on relevance grounds, and the trial court sustained the objection.
On appeal, the defendants claim this exclusion of evidence concerning how Meng Thao believed his grant of immunity worked violated their right to cross-examine witnesses. We disagree.
The defendants also assert that the trial court did not allow them to cross-examine Mua Thao and other witnesses concerning how he thought his grant of immunity worked. However, they provide no citation to the record to show that this limitation occurred. In any event, the analysis would be the same, with a conclusion that the exclusion of such evidence did not violate the right to cross-examine a witness.
“The confrontation clause simply guarantees an opportunity for effective cross-examination; it does not assure a chance to cross-examine in whatever way, and to whatever extent, the defense might wish. (Delaware v. Van Arsdall [(1986)] 475 U.S. [673,] 679-680 [89 L.Ed.2d 674]; Delaware v. Fensterer (1985) 474 U.S. 15, 20 [88 L.Ed.2d 15]; Davis v. Alaska [(1974)] 415 U.S. [308,] 315-316 [39 L.Ed.2d 347].) As long as the cross-examiner has the opportunity to place the witness in his or her proper light, and to put the weight of the witness’s testimony and credibility to a reasonable test which allows the fact finder fairly to appraise it, the trial court may permissibly limit cross-examination to prevent undue harassment, expenditure of time, or confusion of the issues. (Davis v. Alaska, supra, 415 U.S. at p. 318; Evans v. Lewis (9th Cir. 1988) 855 F.2d 631, 634; Steele v. Perez (7th Cir. 1987) 827 F.2d 190, 193-194.) Thus, a trial court’s exercise of discretion to exclude evidence does not implicate or infringe a defendant’s federal constitutional right to confront the witnesses against him, unless the prohibited cross-examination might reasonably have produced a significantly different impression of the witness’s credibility. (People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Cooper [(1991)] 53 Cal.3d [771,] 816-817; People v. Jennings (1991) 53 Cal.3d 334, 372.)” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1386, italics omitted.)
This is not a case in which the trial court excluded evidence of an agreement by a witness to testify in exchange for immunity. “Since a witness’s credibility depends heavily on his motives for testifying, the prosecution must disclose to the defense and jury any inducements made to a prosecution witness to testify and must also correct any false or misleading testimony by the witness relating to any inducements.” (People v. Phillips (1985) 41 Cal.3d 29, 46.) Such disclosure was made here. The jury was apprised of the immunity agreement that benefitted Meng Thao. As noted in part II of the Discussion, above, the question of the bias and credibility of Meng Thao was explored from many angles and argued by counsel. In making their argument that the trial court erred by not allowing them to cross-examine Meng Thao concerning his understanding of how the immunity agreement worked, the defendants are unable to suggest what this line of questioning would have added to the already well-explored subject of the bias and credibility of Meng Thao. It was essentially a fishing expedition.
The defendants offer no authority, and we know of none, finding an abuse of discretion in the court’s decision not to allow the defense to question a witness concerning the witness’s understanding of an immunity agreement after having admitted evidence of the immunity agreement itself. Having allowed the defense to present considerable evidence concerning Meng Thao’s bias and credibility, it was not an abuse of discretion to exclude evidence concerning how Meng Thao thought his grant of immunity worked.
IX
Testimony of Isabella Yang
The defendants assert that the trial court erred by admitting prior inconsistent statements of witness Isabella Yang. At trial, she claimed that she was not present when the incident at the residence of Meng and Mua Thao took place. In a statement to Detective Beezley, however, she stated that she was present and that defendant Vang fired a gun during the incident. We conclude that the trial court did not err.
Isabella Yang’s brother, Michael Yang, and her boyfriend, Thai Vang, were members of the SMC gang. At trial, she testified that she was not present when the shooting took place at the residence of Meng and Mua Thao; instead, she was at her parents’ video store. She claimed that her knowledge of the events came from her boyfriend, Thai Vang. The prosecutor asked her whether she had told Detective Beezley that she was present at the scene of the shooting, in the black Acura, and identified defendant Vang as one of the shooters. She admitted that she told Detective Beezley that she was there and she “probably” told Detective Beezley that defendant Vang was one of the shooters, but claimed that she only heard from Thai Vang that defendant Vang was in the car from which shots were fired. She also admitted that she gave Detective Beezley information on who rode in the cars to the residence of Meng and Mua Thao. Detective Beezley testified that Isabella Yang told him that, during the incident at the residence of Meng and Mua Thao, she was present in the black Acura and that she heard someone yelling something about SMC.
Counsel for one of the defendants objected to Isabella Yang’s testimony as hearsay. During a break in the proceedings, another attorney objected to “her entire testimony as hearsay, lack of foundation.”
The Attorney General asserts that objections to the testimony of Isabella Yang were forfeited because they were not specific and timely. While it is true that an objection to testimony based on hearsay and lack of foundation must be made in a specific and timely manner (see Evid. Code, § 353, subd. (a)), we need not consider the Attorney General’s assertion because the evidence was properly admitted.
In his reply brief, defendant Vang makes an untimely assertion that his trial counsel was constitutionally ineffective for failing to make a timely and specific objection. We also need not consider this assertion.
The defendants contend that the testimony of Isabella Yang should have been excluded because it was based on hearsay. This argument assumes as true her testimony at trial that she was not present at the incident at the residence of Meng and Mua Thao and only heard about it from Thai Vang. The trial court, however, was not bound by this testimony. There was other evidence -- Isabella Yang’s inconsistent prior statement -- that she was present at the shooting and observed it from the black Acura.
We conclude that the trial court did not abuse its discretion in admitting the prior statement that defendant Vang was a shooter. The evidence supports the trial court’s implied finding that Isabella Yang was lying at trial and was truthful in her earlier statement concerning her presence at the scene of the shooting. (See People v. Alvarez (1996) 14 Cal.4th 155, 201 [exercise of discretion upheld if underlying factual finding based on substantial evidence].) Accordingly, she could make statements concerning the events from personal knowledge rather than hearsay.
X
Natural and Probable Consequences Theory
The prosecution relied on the theory of natural and probable consequences to convict the defendants as aiders and abettors of assault with a firearm (Pen. Code, § 245) and shooting at an inhabited dwelling (Pen. Code, § 246). Under this theory, the defendants were guilty of assault with a firearm and shooting at an inhabited dwelling (the charged crimes) because those crimes were the natural and probable consequence of the crime they intended to aid and abet (the target crime), which was disturbing the peace (Pen. Code, § 415). The trial court used CALCRIM No. 403 to instruct on this theory.
On appeal, the defendants contend that the use of CALCRIM No. 403 in this case was improper for two reasons: (A) assault with a firearm and shooting at an inhabited dwelling were not natural and probable consequences of disturbing the peace under the facts of this case and (B) the instruction failed to explain correctly the relationship between the target crime and the charged crimes. The contention is without merit.
With regard to the natural and probable consequences theory, the trial court instructed the jury using CALCRIM No. 403, as follows:
“[B]efore you decide whether a defendant is guilty of 245, assault with a deadly weapon, . . . Count 1, and 246, shooting into an inhabited dwelling, Count . . . 3, you must decide whether he is guilty of 415 of the Penal Code, disturbing the peace.
“To prove that a defendant is guilty of 245, assault with a deadly weapon, and 246, shooting into an inhabited dwelling, the People must prove, number one, the defendant is guilty of 415, disturbing the peace; number two, during the commission of 415, disturbing the peace, the crime of 245 of the Penal Code, assault with a deadly weapon, and 246 of the Penal Code, shooting into an inhabited dwelling was committed; and number three, under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the 245, assault with a deadly weapon, 246, shooting into an inhabited dwelling, was a natural and probable consequence of the commission of 415, disturbing the peace.
“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
“If the 245 of the Penal Code, assault with a deadly weapon, and 246 of the Penal Code, shooting into an inhabited dwelling, was committed for a reason independent of the common plan to commit 415, disturbing the peace, then the commission of the 245, assault with a deadly weapon, and 246, shooting into an inhabited dwelling, was not a natural and probable consequence of 415 of the Penal Code, disturbing the peace.”
The trial court instructed the jury on the elements of all three crimes: assault with a firearm, shooting at an inhabited dwelling, and disturbing the peace.
A. Facts of this Case
“The trial court should grant a prosecutor’s request that the jury be instructed on the ‘natural and probable consequences’ rule only when (1) the record contains substantial evidence that the defendant intended to encourage or assist a confederate in committing a target offense, and (2) the jury could reasonably find that the crime actually committed by the defendant’s confederate was a ‘natural and probable consequence’ of the specifically contemplated target offense. If this test is not satisfied, the instruction should not be given, even if specifically requested.” (People v. Prettyman (1996) 14 Cal.4th 248, 269.)
The defendants contend that the second prong of the Prettyman test for whether a natural and probable consequences instruction should be given was absent. They assert that the evidence was insufficient to conclude that the shooting was a natural and probable consequence of the intended disturbing the peace. We disagree.
The defendants and others agreed to go to the residence of Meng and Mua Thao to confront Mua Thao and escalate the dispute that had taken place between Mua Thao and Thai Vang. The group planned the attack and took along baseball bats. Immediately upon arrival at the residence, the group identified themselves as SMC, issued a challenge to fight, and took aggressive action. From the beginning, this was to be a violent conflict. When Meng and Mua Thao showed resistance, which was a foreseeable response to the aggression, someone yelled, “Grab the gun,” multiple times. The shooting at Meng and Mua Thao and at the residence was a natural and probable consequence of the group’s planned crime of disturbing the peace.
The defendants contend that the evidence was insufficient to support the instruction because (1) the shooting did not result from an ongoing gang rivalry, (2) no reliable evidence showed which member of the group had the gun, and (3) there was no evidence that the group went to the residence of Meng and Mua Thao intending to use the gun. The evidence, however, is to the contrary.
1. Ongoing Dispute
There was an ongoing dispute between Mua Thao and Thai Vang. Whether or not they were members of established gangs, the evidence is clear that the animosity between them arose, at least in part, from their rival interests and associations, notwithstanding Mua Thao’s statement to Thai Vang that this was just between them.
2. Knowledge of the Presence of the Gun
Although actual knowledge of the presence of a specific deadly weapon is not a necessary element in imposing liability under the natural and probable consequences theory (see People v. Gonzales (2001) 87 Cal.App.4th 1, 11; People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5), the evidence in this case supported a reasonable inference that the defendants knew about the gun. This was not a spontaneous fight. The defendants and their group armed themselves, at least with bats, and drove to the residence of Meng and Mua Thao. Someone shouted, “Grab the gun,” which supports a reasonable inference that the rest of the group knew about the presence of the gun and contemplated that they might need it. Accordingly, the evidence supports an inference that the defendants knew about the gun.
3. Intent to Use the Gun
The same circumstances support an inference that there was an intent to use the gun. The group essentially agreed to commit the crime of disturbing the peace under circumstances they knew would create a far more serious conflict. They brought along a gun to bolster their ability to prevail.
B. Relationship Between Target Crime and Charged Crimes
The defendants assert that the natural and probable consequences instruction “fail[ed] to explain the relationship between the aider and abettor’s actions and those of direct perpetrator [sic], allowing the defendant[s] to be convicted of the non-target offenses even if [they] did not aid and abet anything the direct perpetrator did.” This assertion fails because, looking at the instructions as a whole, the jury was informed that it could not convict based on the natural and probable consequences theory if the shooting was a result of an act outside the common plan of the group.
The instruction stated that, if the charged crimes were “committed for a reason independent of the common plan to commit [the target crime],” then the natural and probable consequences theory was inapplicable. Contrary to the defendants’ assertion, the instruction properly described the required relationship between the actions of the defendants and the action of the shooter by instructing that the crimes must have been committed pursuant to a common plan.
XI
Expert Testimony
The defendants contend that the trial court abused its discretion by allowing Detective Beezley to testify as an expert that (A) violence, shootings, and homicide are the natural and probable consequences when members of a gang aggressively confront others over perceived disrespect and (B) the defendants acted for the benefit of their gang when committing the charged crimes. The contention is without merit.
“As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]” (People v. Page (1991) 2 Cal.App.4th 161, 187.)
“California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 617.)
A. Natural and Probable Consequences
During his testimony as an expert on gangs, Detective Beezley testified that gangs prepare for violence and will escalate the situation rather than lose face. The prosecutor asked whether a violent act is the natural and probable consequence when an Asian gang confronts an individual about a conflict. Detective Beezley responded: “[T]he natural and probable consequence of what may start out as little as a disrespect, ultimately could lead to a felony assault and even homicide. Many times it will start with just a glance, a hard stare. The natural and probable consequence, they go to confront this person about the issue, which leads to violence, gunplay and death.”
The defendants claim that this is impermissible expert opinion because (1) it constituted a legal conclusion that should have been left to the jury and (2) it was not supported by a sufficient factual foundation. Neither argument is convincing.
Detective Beezley’s expertise on Asian gangs was well established. In that role, he was asked, factually, whether violence was a natural and probable consequence when an Asian gang confronts an individual about a conflict. Based on his experience, he opined that it was a natural and probable consequence. This was helpful to the jurors who generally do not have sufficient knowledge of gang culture to know the answer to the prosecutor’s question. Detective Beezley did not testify that the charged crimes in this case were the natural and probable consequence of the SMC gang’s actions. Instead, the question and answer were based on generic Asian gang culture.
This was proper expert testimony because it related to the culture and habits of criminal street gangs, specifically Asian gangs. (See People v. Gardeley, supra, 14 Cal.4th at p. 617.) It was helpful to the jurors and did not usurp their function of deciding the ultimate issue of whether the charged crimes in this case were the natural and probable consequence of the SMC gang’s determination to confront Mua Thao.
Concerning whether there was a sufficient factual foundation for Detective Beezley’s opinion, the defendants assert there was not but make no reasoned argument in that regard. As noted above, Detective Beezley’s qualification as an expert on Asian gangs was well established.
B. Benefit of a Criminal Street Gang
The prosecutor also asked Detective Beezley whether, in his opinion, the crimes were committed for the benefit of the SMC gang. Detective Beezley answered affirmatively and gave his reasons for his belief.
The defendants argue that admission of Detective Beezley’s testimony concerning whether the crimes were committed for the benefit of a criminal street gang was an abuse of discretion. Because we reverse the gang conviction and enhancements, error in this regard, if any, was not prejudicial. (Evid. Code, § 353, subd. (b).)
In any event, allowing Detective Beezley to give his opinion concerning whether the crimes were committed for the benefit of the SMC gang was not an abuse of discretion. His expertise was helpful to the jury in determining the SMC gang’s motive for the attack and the testimony did not lead the jury ineluctably to the conclusion of guilt because there were other elements of the gang crime and enhancement to be proven. (See People v. Valdez (1997) 58 Cal.App.4th 494, 508 [expert opinion permissible if helpful to jury and not tantamount to an opinion of guilt].)
XII
Right to Jury Trial on Sentencing Factors
The defendants assert that the trial court violated their jury trial rights by imposing the upper term on count two for participation in a criminal street gang. We need not consider this issue because we reverse the conviction on that count. (See part I, above.)
XIII
Asserted Cumulative Error
The defendants contend that we must reverse because, even if errors were not prejudicial standing alone, they were prejudicial cumulatively. Having found no error, except for the error for which we reverse the gang conviction and enhancements, we conclude that the defendants’ cumulative error argument is without merit.
DISPOSITION
The judgment of conviction on count two and the gang enhancements on counts one and three are reversed as to each defendant. In all other respects, the judgment is affirmed as to each defendant. The cases are remanded to the trial court for resentencing, with proper credit for presentence custody credits.
We concur: ROBIE, J., BUTZ, J.
Penal Code section 186.22, subdivision (b)(1) states, in pertinent part: “[A]ny person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . .”