Opinion
B196486
8-29-2008
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW FELIX VARGAS, Defendant and Appellant.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Appellant Mathew Felix Vargas was convicted of the first degree murder of Jalonnie Carter, with firearms use and criminal street gang enhancements. He was sentenced to 53 years to life in prison.
The evidence showed that appellant belonged to, and Carter was associated with, rival street gangs in the area of Santa Monica where Carter was shot. Just before the shooting, appellant and his girlfriend Talia C. were passengers in a car driven by Talias friend, Samantha P. Talia testified that appellant saw Carter walking on the street, exchanged gang signs with him, got out of the car, and chased after him. The girls drove away without seeing what happened. Appellant got into the car again shortly later at the nearby home of Chris S. Appellant drove with the girls to Talias home, where he gave Talia the gun to hide for him. He later confessed the killing to Jessica L., the sister of his friend and fellow gang member Jimmy L.
Talia testified under a grant of immunity from prosecution as an accessory after the fact. The prosecutor and court refused to grant Samantha immunity, she refused to testify, and a small portion of her preliminary hearing testimony was introduced over defense objection.
Appellant contends: (1) His constitutional rights to due process, compulsory process and confrontation were violated because Samantha was not granted immunity and the jury heard part of her preliminary hearing testimony. (2) He was prejudiced by dog scent evidence that was introduced and later stricken. (3) The trial court should have instructed sua sponte on accomplice testimony. (4) There was insufficient evidence to support the street gang finding.
We find no error and affirm.
FACTS
1. Background and Gang Evidence
The shooting occurred on 20th Street, north of Delaware Street, below the on-ramp to the Interstate Route 10 (10 Freeway). According to the police gang expert, that block was in an area claimed by two rival gangs, a predominantly African-American gang called the Graveyard Crips and a larger, predominantly Hispanic gang called Santa Monica 17th Street. The gangs were engaged in a "turf war," as both sought to control the drug trade in the area. In addition to drug trafficking, members of Santa Monica 17th Street committed violent crimes like shootings, homicides, and stabbings of rival gang members. Members of that gang had been convicted of attempted murder and threatening a witness. Members of the Graveyard Crips had also been known to commit violent crimes.
Carter, an African-American male, was shot in the back on September 2, 2003, when he was 19 or 20 years old. Shortly before the shooting, he was walking north on the east side of 20th Street toward the entrance to an alley where the Santa Monica 17th Street gang was active. According to the gang expert, Carter was not a gang member, but he was an "associate" of the Graveyard Crips. Associates of a gang "live in the neighborhood [and] occasionally hang out with the full-fledged gang members."
Appellant was 16 years old on September 2, 2003. He was an admitted member of Santa Monica 17th Street, using the gang moniker "Lil Rooster." He appeared in photographs with other members of his gang, wearing characteristic clothing and "throwing up gang signs," which means displaying the hand gestures used to signify the gang.
In the opinion of the gang expert, if appellant chased down Carter while Carter was walking on 20th Street and shot him in the back, the crime would be committed for the benefit of, at the direction of, and in association with Santa Monica 17th Street, and with the specific intent to promote, further or assist the gangs criminal conduct, as any member of Santa Monica 17th Street would assume that any African-American male in that area belonged to the Graveyard Crips, and he would receive praise and immediate status from his fellow gang members for committing the crime.
2. More Details about Talia, Chris, and Samantha
Talia was 19 years old when she testified in November 2006. She had a different boyfriend then, who was the father of her child. On September 2, 2003, she was 15 years old, appellant was her boyfriend, and they had already been romantically linked for a long time. He told her he belonged to a gang and showed her its hand signs. She had seen him with a gun. She was not a gang member herself and was upset that he was, but she was willing to overlook that fact, as she loved him.
Chris was a friend of appellants and, according to Talia, a "wanna be" of appellants gang. Members and associates of Santa Monica 17th Street "hung out" at Chriss home on 21st Street, one block east of 20th Street, in the block north of Delaware. The backyard of Chriss property ran along, and could be reached on foot from, the alley that opened on 20th Street and curved to run between 20th Street and 21st Street. The alley also had an entrance on Delaware Street between 20th Street and 21st Street.
Samantha met appellant and Chris in 2003, through her friendship with Talia. On September 2, 2003, Samantha was Chriss girlfriend. She was 19 years old when she testified at the preliminary hearing in September 2005.
3. Talias Testimony About the Day of the Crime and Subsequent Events
Around 4:00 p.m. on September 2, 2003, Samantha drove Talia and appellant to Talias doctors appointment on 20th Street in Santa Monica. Afterwards, the three of them drove south on 20th Street. Samantha was driving, appellant was in the front passenger seat, and Talia was in the back seat. They saw a large, tall African-American male who Talia later learned was Carter. Carter was crossing the street on foot. He threw his hands over his head and "made a gang sign" for the Graveyard Crips. Appellant responded by displaying the gang signs of Santa Monica 17th Street. Carter laughed and walked north toward the entrance to the alley below the freeway on-ramp.
Appellant angrily said, "Oh, hell no. Let me out of the car." Samantha "kind of laughed" and said, "Okay." Talia did not know appellant had a gun. She thought he planned to fight with Carter. She was afraid appellant would "get his ass kicked," as Carter was a much bigger person. She locked the doors and tried to stop appellant from leaving the car. He pushed her away. Samantha unlocked the doors. Appellant got out of the car and ran in the direction Carter had taken.
Samantha and Talia made a U-turn, drove north on 20th Street and proceeded through the alley. They did not see appellant. They turned left where the alley ended on Delaware, turned left at 21st Street, and drove about half a block to Chriss house. They parked on the street and stayed in the car. Chris stood next to the car and talked with Samantha.
Appellant appeared from somewhere on Chriss property and walked up to Samanthas car. He opened the rear door, sat down next to Talia, and said, "Lets go." Five or 10 minutes had passed since he left the car on 20th Street. Talia asked him what had happened. He did not say anything. Samantha, Talia, and appellant drove to Talias home in Venice. Samantha stayed in the car while appellant and Talia went inside. They went into Talias bedroom. Appellant put a gun, wrapped in a bandanna, into the drawer of Talias dresser. He told Talia he was leaving the gun there because his house was always searched whenever something happened. She loved him, so she let him leave the gun there.
Appellant, Talia, and Samantha drove back to appellants home on 22nd Street, about a block from Chriss house. Appellant took a shower. Chris came over and washed Samanthas car. Talia and Samantha had dinner with appellant, his mother, and his sister. They heard on a news broadcast that there had been a shooting in the area. Talia "didnt believe it." She had not heard any shots. She and appellant told his mother that they knew nothing about the shooting. After dinner, Samantha drove Talia home. Talia later heard that the police went to Chriss home that night with dogs, after she went home.
A day or two later, Talia saw appellant again. They broke up that day because appellant had crack cocaine with him. There had been times in the past when they broke up and then resumed their relationship. He was soon taken into custody on an unrelated case.
Talia kept the gun for appellant for months. She loved him, wanted to protect him, and hoped to return it to him. She moved it to a backpack in the closet. Her friend Alleah P. found the gun in the closet after she moved into the bedroom with her. Talia told Alleah what happened on the day of the crime. Talia decided to get rid of the gun, as (1) she feared her mother would find it, and (2) Alleahs boyfriend was appellants friend Jimmy, and Jimmys father was pressuring Talia to give him the gun.
Talia, gave the gun to Arnie Fishkind, whom she met through her friend Jake Feltzer. She told Fishkind that the gun had been used to kill someone. She asked him to do her a favor and destroy it. She thereafter saw appellant a few times. She did not ask him about the crime, as she did not want to know about it.
In February 2005, a year and a half after the crime, Talia was arrested for first degree murder, conspiracy to commit murder, and destruction of evidence. She did not cooperate with the police when they questioned her. She was released a week later. No charges were filed.
Talia was arrested a second time in June 2005. She was told that she would be charged with murder if she did not cooperate with the police and a deputy district attorney who was present during the interview. She decided she could not continue to protect appellant. She gave a detailed statement that matched her trial testimony. She was promised that, if she testified truthfully, she would have immunity from prosecution as an accessory after the fact, for keeping the gun. She understood she would go to jail if her testimony was not truthful.
4. The Portion of Samanthas Testimony the Jury Heard
On September 2, 2003, at some point after Carter was shot, police officers arrived with dogs while appellant, Samantha, and other people were standing in front of Chriss home. Appellant "went through the back" of the property before the police contacted the group of people.
The following day, in Talias bedroom, Talia showed Samantha the bandanna-wrapped gun in her dresser drawer.
Samantha stayed friendly with appellant and Talia until moving away in February 2004. Appellant never told her what happened during the crime, but he advised her "[n]ot to think about it" and to "act as if [she] didnt know what happened that day."
5. Appellants Confession to Jessica L.
Jessica lived out of state, but briefly visited her father in Santa Monica in August 2004. During that visit, she had a private conversation with appellant when they were alone together in the garage of her fathers home, near 22nd Street and Delaware. Jessicas brother Jimmy, appellants longtime friend and fellow gang member, was outside the garage with another friend at that time. Appellant told Jessica what he had been doing, including his gang involvement and incarceration in juvenile hall. As he walked away, he added, "You know that guy that got killed down the street?" Jessica said she did not know. Appellant said, "Oh, yeah. Well, I killed him." He did not sound remorseful. Then, he told her Jimmy did the killing. She did not take him seriously at that time. She later asked Jimmy about what appellant said. Jimmy told her that appellant was lying and he (Jimmy) did not do it.
After Jessica left the area, her father telephoned her several times. He told her that Jimmy would be put in jail if she did not tell the truth about what appellant told her. She told him appellant told her he shot someone. She later told the defense investigator that she heard no such statement from appellant, but that was because she wanted the defense to leave her in peace. She insisted that she was telling the truth at trial. She was afraid she would be killed for testifying against a gang member, but she still wanted to testify because what happened to Carter "wasnt right."
6. The Gun and Its Subsequent Owners
The police eventually recovered the gun appellant gave to Talia, tested it, and confirmed that it was the murder weapon. The gun made its way into the hands of the police via this route:
Arnie Fishkind testified that in late 2003, Talia and Jake Feltzer traded the gun to him for a gram of cocaine. Talia told him the gun belonged to her ex-boyfriend, "Rooster." She said it was "dirty," which meant it had been used in a crime. Fishkind kept the gun briefly and then sold it to Mike Jones, after taking it apart and cleaning it to remove fingerprints. Jones loaded the gun with ammunition and hid it in the car he was driving. While Jones was driving the car, he was arrested for stealing it. The car was returned to its registered owner, who later sold it to his neighbor. The neighbor gave the police permission to search the car, and Jones told the police where the gun was hidden. The police found the gun in the car on January 19, 2005.
7. Other Prosecution Evidence
Around 3:45 p.m. on the day Carter was shot, Shelean Antoine heard someone knocking on her door. She opened the door, but no one was there. She then heard five or six gunshots from the rear parking lot area of her residence. She closed the door, went to get her cordless phone, and heard someone run past her door. She ran upstairs, looked out onto 20th Street, and saw a person lying face down. She ran outside while talking to the police dispatcher on her cordless phone. She feared that the person on the ground was her 15-year-old son Terrell. When she approached closer she realized the person was Carter, Terrells friend. Carter lived about a block away on 20th Street and had often visited Terrell at her home.
Hours after the crime, police officers detained a group of people in front of Chriss house on 21st Street. One of the officers saw someone run away as the police arrived.
On April 7, 2005, as appellant was being driven to the police station after his arrest, he asked what he was being booked for. When told he was being booked for murder, he said, "Oh, okay."
8. Defense Evidence
Talia was pregnant with the baby of her subsequent boyfriend when she was arrested in February 2005.
When the police came to Chriss house after the shooting, they filled out field identification cards for the people they saw standing there. The group included Samantha, Chris, and others, but it did not include appellant or Talia.
DISCUSSION
1. The Issues Regarding Samanthas Testimony
Appellant contends that the refusal of the prosecutor and the trial court to grant Samantha immunity from prosecution, and the courts subsequent ruling that the jury could hear a portion of Samanthas preliminary hearing testimony, denied him his state and federal constitutional rights to compulsory process, due process of law, and confrontation (U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I, § 15.)
A. Samanthas Preliminary Hearing Testimony
We summarize Samanthas entire testimony at the preliminary hearing, italicizing the part the jury did not hear at the trial.
Samantha grew up in Santa Monica. She attended Santa Monica High School and Olympic High School. She was 19 years old when she testified at the preliminary hearing. She met appellant in the middle of 2003, through her friend Talia. She met Chris through Talia and was Chriss girlfriend on September 2, 2003. He lived on 21st Street.
On the afternoon on September 2, 2003, Samantha drove Talia and appellant to Talias doctors appointment at 20th Street and Santa Monica Boulevard in Santa Monica. Afterwards, the three of them drove south on 20th Street. Samantha was driving, Talia was in the front passenger seat, and appellant was in the rear seat. After they passed the 10 Freeway, before they reached Delaware, appellant said something through the window to someone outside of the car, and asked to leave the car. Samantha thought appellant might have said the word "junk." She had heard members of appellants gang refer to members of the Graveyard Crips as "Junkyard" or "Junks."
Samantha stopped the car and let appellant out. He crossed to the other side of the street. Samantha and Talia drove away. They returned to the area about 15 minutes later, in response to a cell phone call from appellant. He asked them to pick him up at an alley on Delaware, half a block from where he had been dropped off. When he got into the car, he passed to Talia an object that was wrapped up in a bandanna. They drove about half a block to Chriss house on 21st Street where they hung out with Chris and other people.
Later on September 2, 2003, Samantha, appellant, and other people were standing in front of Chriss house when numerous police officers arrived with their dogs. Appellant left "through the backyard area or the back of the house" when Samantha first saw the police. The police stayed about 20 minutes. The next day, when Samantha was at Talias house, Talia showed her the bandanna-wrapped gun in the drawer of Talias dresser.
Samantha remained friends with Talia and appellant until she moved away in February 2004. Appellant never explicitly told her what happened on the afternoon of September 2, 2003. He told her, however, "[n]ot to think about it" and to "act as if [she] didnt know what happened that day."
B. The Motion for Immunity, Discussions, and Rulings
Although the trial court excluded most of Samanthas preliminary hearing testimony, appellant maintained below, and argues before this court, that none of her testimony should have been introduced.
Appellants counsel at the preliminary hearing was Mr. Sheldon Levitin. His counsel at trial was Mr. Chet Taylor. Different deputy district attorneys represented the People at those two proceedings.
The defense argued that the trial court should grant Samantha immunity from prosecution, as the People were fundamentally distorting the factfinding process and causing an unfair trial by granting immunity to Talia and not to Samantha.
According to the written motion and subsequent statements by counsel, within a week of the shooting Samantha made the following statements about it to three different friends, who reported to the police what Samantha told them:
(1) Samantha told Kyle L. that "she had dropped off her boyfriend, Chris [S.], and another male" in the area of the shooting.
(2) Samantha told Ronnie B. that she dropped off a different member of appellants gang, Arthur A., just before the shooting.
(3) Samantha told Marsha W. that two members of a Santa Monica gang asked her for a ride to a location near the crime scene. She agreed, even though she knew they were armed. When she drove away, she heard gunshots. The defense "believed" that one of the individuals was Chris.
The immunity motion explained that former counsel, Mr. Levitin, cross-examined Samantha at the preliminary hearing, but asked no questions about her statements to Kyle, Ronnie or Marsha. The motion included a footnote by present counsel, Mr. Taylor. He said that Levitin had "represented" to him that Levitin "did not have the tapes or police reports of [Kyle, Ronnie or Marsha] prior to the preliminary hearing. He specifically remembers [Kyles] statement being turned over to him after the preliminary hearing."
The motion further stated: "The detectives assigned to this case never confronted [Samantha] regarding her statements to [Kyle, Ronnie or Marsha]." The prosecutor disputed that fact. He said that the first time the police questioned Samantha, she denied any knowledge of the incident. After that, Kyle and Ronnie made videotaped statements to the police about what Samantha told them. When the police recontacted Samantha, she said she made up stories about dropping off other people to distract attention from appellant, and it was really appellant whom she dropped off.
The prosecutor thought Samantha could properly be impeached with her prior statements, but suspected she would invoke the Fifth Amendment and refuse to testify.
At the oral proceedings, the trial court indicated that it had read the transcript of Samanthas preliminary hearing testimony, and Samantha had not been questioned about her previous statements. The court was concerned that if Samantha took the Fifth Amendment and her preliminary hearing testimony was introduced, the defense could not impeach her by introducing what she told Kyle as a prior inconsistent statement because she had not been questioned about Kyle at the preliminary hearing. It wondered if there could be a confrontation problem if cross-examination at the preliminary hearing did not include the subject of the prior inconsistent statement. It encouraged the prosecutor to grant Samantha immunity so she could be fully cross-examined at the trial regarding her prior statements, particularly since there was nothing to show she was an accomplice to the murder itself. The prosecutor refused to do so. The court recognized there were exceptions that gave it the power to grant immunity, but doubted that the exceptions applied.
Later in the proceedings, defense counsel again argued that the court should grant Samantha immunity, as the factfinding process would be distorted if Samanthas preliminary hearing testimony was introduced and the jury did not hear her prior statements. The prosecutor said the People were not willing to grant Samantha immunity, as Samantha had been subject to cross-examination at the preliminary hearing, and the police detective who had been on the case from the beginning believed the defense was given all of Samanthas prior statements before the preliminary hearing occurred. The prior statements were made long before the preliminary hearing, as Kyle and Ronnie spoke to the police on September 8, 2003, and Marsha did so on March 15, 2004. He said he did not oppose the courts granting Samantha immunity, but did not think the court had the authority to do so. Defense counsel wanted to bring Levitin into court for questioning, as Levitin had told him he did not get all the discovery, and in particular Kyles statement, prior to the preliminary hearing.
The court then refused to grant immunity to Samantha. It ruled that the People and not the court have the power to grant witness immunity, unless the defense establishes the applicability of an exception, discussed in United States v. Westerdahl (9th Cir. 1991) 945 F.2d 1083, 1086-1087 (Westerdahl ), under which the court may grant immunity to avoid a violation of due process through distortion of the factfinding process. The court found that exception to be inapplicable because (1) Samanthas preliminary hearing testimony and Talias trial testimony both named appellant as the person who left Samanthas car before the shooting and returned to it later with the gun, and (2) that version of appellants involvement was corroborated by other evidence, including appellants admission of the shooting to Jessica and the testimony regarding the gun.
When called as a witness, Samantha exercised her right against self-incrimination. The court found her to be an unavailable witness and ruled that her preliminary hearing testimony could be read to the jury. The jury did not hear her testimony that day, however.
The following day, the court told counsel it had reconsidered its ruling, "based on Crawford [v. Washington (2004) 541 U.S. 36] and due process." It wanted to avoid the "myriad of appellate issues that would be created" if the jury heard Samanthas preliminary hearing testimony, as she had not been cross-examined about her prior inconsistent statements, so the defense would not be able to introduce evidence of them. The court further ruled that the People had already presented a strong case for appellants guilt, and the probative value of Samanthas preliminary hearing testimony was weakened by the fact it was cumulative to Talias trial testimony. The court could not grant Samantha immunity, but it would not allow the Peoples refusal to grant Samantha immunity to "creat[e] a situation where the defense is unable to put on any witnesses relating to this incident." Excluding Samanthas testimony would, therefore, avoid "a whole can of worms."
The prosecutor complained that the People had detrimentally relied on the ruling of the previous day, as Samantha had been permitted to leave and might already have flown home to another state. He agreed to an alternative, which was to introduce Samanthas preliminary hearing testimony, but utilize witnesses to show both her prior statements and her repudiation of those statements, so that the jury received the "full picture."
The following day, the prosecutor asked the court to reconsider. The court said the prosecutor could still choose to put Samanthas preliminary hearing testimony into evidence. The prosecutor particularly wanted the jury to hear Samanthas testimony that appellant left Chriss house when the police arrived there, as that fact could only be shown through Samanthas testimony. The court limited its ruling to exclusion of the portion of Samanthas testimony about her picking up and dropping off appellant. Other portions of her testimony, such as appellants leaving Chriss house when the police arrived, were admissible, as there had been adequate cross-examination and there were no defense impeachment witnesses to contradict those portions.
The jury therefore heard portions of Samanthas testimony that showed (a) appellant "went through the back" of Chriss property when the police arrived there; (b) Talia showed Samantha the gun in Talias bedroom the next day; and (c) at some point between the shooting and February 2004, appellant told Samantha "[n]ot to think about it" and to "act as if [she] didnt know what happened that day."
C. Analysis
The prosecution has the right to grant a witness immunity, but criminal defendants cannot force the prosecution to do so. (People v. Samuels (2005) 36 Cal.4th 96, 127.)
The California Supreme Court has left open the question of whether, on appropriate facts, the trial court may grant immunity when the prosecution refuses to grant it. (People v. Hunter (1989) 49 Cal.3d 957, 975; People v. Samuels, supra, 36 Cal.4th at p. 127.) The requisite facts would apparently be "that the prosecutor intentionally refused to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence." (People v. Hunter, at p. 975.)
Federal cases have recognized that, even though a criminal defendant cannot compel a prosecutor to grant immunity, an exception exists under which the court can grant such immunity, "in cases where the fact-finding process is intentionally distorted by prosecutorial misconduct, and the defendant is thereby denied a fair trial." (Westerdahl, supra, 945 F.2d at p. 1086.) To establish that exception, "a defendant must show that the evidence sought from the nonimmunized witness was relevant and that the government distorted the judicial fact-finding process by denying immunity to the potential witness." (Ibid.)
In Westerdahl, supra, 945 F.2d at page 1087, the court held that there should have been an evidentiary hearing to determine whether the government intentionally distorted the factfinding process by granting immunity to prosecution witnesses and denying immunity to a defense witness who would have contradicted the prosecution witnesses. Appellant maintains that the same problem existed here, as Talia but not Samantha was granted immunity, and Samanthas preliminary hearing testimony was "materially inconsistent" with Talias testimony.
Appellants basic premise is inaccurate. Samanthas and Talias versions were not "materially inconsistent" with each other. Although they disagreed on certain facts, which we note below, the material facts in their testimony were the same. Talia in her trial testimony, and Samantha in her preliminary hearing testimony, both said that appellant engaged in gang-related behavior when he saw Carter, asked to leave the car, ran after Carter, and reentered the car shortly later with a gun that was later proven to be the murder weapon.
Most of appellants cases, including Westerdahl, supra, 945 F.2d 1083, involve the question of immunity for a defense witness. Similarly, our Supreme Court suggested in People v. Hunter, supra, 49 Cal.3d at page 975, that judicial immunity could be appropriate if the prosecution intentionally denied immunity to a key defense witness whose testimony would have been "essential, noncumulative exculpatory evidence." Here, however, if Samantha had testified, she would have been a witness for the prosecution. If, as expected, her testimony at trial matched her preliminary hearing testimony, her testimony would not have been essential, noncumulative nor exculpatory, as she would essentially have corroborated Talias version of appellants involvement in the crime.
Moreover, the veracity of Talias testimony was corroborated by many other facts in the case, including: (a) appellants possession of the murder weapon shortly after the killing; (b) his asking Talia to hide the gun for him; (c) his flight from Chriss house when the police arrived there; (d) his telling Samantha to act as if she did not know what happened that day, and, most importantly; (e) his admission to Jessica, when they were alone together in that neighborhood, that he killed the person "down the street." There was, therefore, no risk of a violation of due process if the jury did not hear Samantha testify.
We also find it significant that appellant sought immunity for Samantha, not for the purpose of eliciting exculpatory testimony from her, but for the purpose of introducing prior inconsistent statements she had made that would impeach her present testimony, which was expected to be incriminatory. No case has ever suggested that granting judicial immunity would be appropriate in such a situation.
We therefore hold that the refusal of the prosecutor and the trial court to grant immunity to Samantha did not violate appellants state and federal constitutional rights to compulsory process or due process of law.
We also find no violation of appellants federal and state constitutional rights to confrontation. We reach that conclusion because appellant had a full opportunity to cross-examine Samantha at the preliminary hearing about the portion of her testimony that the jury heard, and he had the same interest and motive for cross-examination at the preliminary hearing that he had at the trial. (People v. Seijas (2005) 36 Cal.4th 291, 303; People v. Carter (2005) 36 Cal.4th 1114, 1173-1174; Crawford v. Washington, supra, 541 U.S. 36, 68.)
2. The Dog Scent Evidence
Edward Hamm, a dog handler, testified that, hours after the shooting, a bloodhound named Knight smelled a scent pad that was derived from ammunition evidence at the crime scene. Hamm and Knight followed the scent through the alley and a walkway onto 21st Street, and then along 21st Street to the driveway of Chriss house.
Police Detective Larry Nichols described accompanying Hamm and the bloodhound on the path to Chriss house, where Nichols waited for backup officers who questioned the people in front of the house.
The trial court later struck the dog scent evidence based on a newly decided case, People v. Willis (2004) 115 Cal.App.4th 379. It advised the jury to treat Hamms testimony about dog scent evidence as if it had never heard it, and not to let it enter into deliberations in any way.
During deliberations, the jurors asked if they were allowed to consider Detective Nicholss testimony regarding the trail that the police took to the house and the "field identification" at Chriss house. The court told the jurors that it struck Hamms testimony relating to his dog and the dog scent evidence, but the jurors could consider Hamms and Nicholss testimony regarding what happened at Chriss house after they arrived there.
Appellant contends that introduction of the dog scent evidence was prejudicial error. We find no error in the rulings on the issue, as the court struck the dog scent evidence, the jury was instructed not to consider it, and the jurys question during deliberations shows that it followed the courts instruction.
Moreover, assuming any error regarding dog scent evidence, there was no prejudice, since the dog scent evidence played a minimal role in the trial, Samanthas testimony from the preliminary hearing placed appellant at Chriss house regardless of the dog scent evidence, and the evidence of appellants guilt was overwhelming.
3. Lack of an Instruction on Accomplice Testimony
Appellant contends that the trial court committed prejudicial error by failing to instruct on accomplice testimony. The contention lacks merit. An accomplice must act with knowledge of the perpetrators criminal purpose, and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91.) Talia and Samantha were in the car with appellant before he got out of it, but there was no evidence that either of them knew that appellant intended to shoot Carter when he asked to be let out of the car. Since there was no evidence that either Samantha or Talia was an accomplice, the trial court did not need to give any instructions on accomplices.
4. The Gang Allegation
The jury found true an allegation that the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1)(A).) Appellant contends that there was insufficient evidence to support that finding. Applying the appropriate standard of review (People v. Catlin (2001) 26 Cal.4th 81, 139), we find substantial evidence from the combination of these facts: (1) Appellant was an admitted member of the Santa Monica 17th Street gang, and Carter was associated with the rival gang, the Graveyard Crips. (2) The shooting occurred in an area contested by those gangs. (3) According to Talia, when appellant and Carter saw each other, they displayed the gang signs of their rival gangs, appellant became angry when Carter laughed, and appellant immediately asked to leave the car. (4) The gang expert testified that appellants behavior, chasing down Carter when he saw him on the street and shooting him in the back, showed that the crime was committed to benefit the gang, as members of appellants gang would assume that an African-American male in that area belonged to the rival gang, and the crime would result in praise and accolades to appellant from his fellow gang members while it furthered the gangs efforts to prey on the community. (5) A gang shooting was the only apparent motive for this crime.
DISPOSITION
The judgment is affirmed.
We concur:
COOPER, P. J.
RUBIN, J. --------------- Notes: (1) The positions of appellant and Talia in the car were different in the two versions. (2) Talia said Carter made a gang sign, appellant responded with a gang sign, and Carter laughed. Samantha said appellant saw Carter, used a derogatory word for a member of the Graveyard Crips, and asked to leave the car. (3) Talia said appellant suddenly walked to the car when she and Samantha were sitting in it near Chriss house. Samantha said appellant called the girls on a cell phone and asked to be picked up in the alley on its Delaware side. (4) Talia said appellant showed her the gun when they got to her house. Samantha said appellant passed Talia the bandanna-wrapped object when he entered the car. (5) Samantha said they all drove straight to Chriss house, and did not mention that she drove appellant, Talia, and the gun to Talias house.