Opinion
F053647
2-19-2009
THE PEOPLE, Plaintiff and Respondent, v. SOKOL YANN, Defendant and Appellant.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathy McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Procedural History
Appellant Sokol Yann was convicted by jury of two counts of first degree murder (Pen. Code, § 187, subd. (a)) in the gang-related killing of Nath Ouch and her unborn child. The jury also found true multiple-murder and criminal-street-gang special circumstances within the meaning of section 190.2, subdivision (a)(3) and (22). Yann admitted in a bifurcated proceeding that he has suffered four prior serious felony convictions. Yann was sentenced to two consecutive terms of life without possibility of parole, plus an additional 20 years, five for each of Yanns prior serious felony convictions. Yann was tried jointly with codefendants Sokmorn Chea (case No. F053558), Boualy Mangsanghanh (case No. F054382), and Jonathon Perkins. Chea and Mangsanghanh were convicted of the murders; Perkins was acquitted on all counts.
All statutory references are to the Penal Code.
Factual Summary
Yann is a member of the criminal street gang known as the Asian Boyz (Boyz). At the time of the murders, the gang was at war with a rival gang known as the Tiny Rascal Gang (TRG). There had been at least 30 shootings involving these two gangs within four years of the murders. Several days prior to the murders, Boyz member Keo Som was jumped and assaulted by members of the TRG. In retaliation for the assault, several armed Boyz members executed a drive-by shooting on TRG territory. The TRG immediately retaliated with a drive-by shooting directed at Soms parents house. After these events, "[f]or protection," Yann borrowed a loaded .45-caliber semiautomatic handgun from fellow Boyz member Victor Alvarez. Yann was angry and wanted to retaliate. Alvarez was not at Yanns house the night of the murders.
On the night of the murders, Boyz members met at Yanns home. Yann, Mangsanghanh, Chea, Som, Sopheak Chhang, Peter Khounvixay, Panya Channita, Jose Perez, and Perkins were all present, along with other gang members. The gang, including Yann, discussed the recent shootings and the need to retaliate. According to Som, Yann and Mangsanghanh also noted the need to retaliate for the death of Boyz member Olina Mung, who had been killed a year earlier by the TRG. According to Mangsanghanh, the group was talking "trash" about the TRG.
Alvarez was not there the night of the murders, but his gun was present. Channita testified he saw Yann give Alvarezs semiautomatic handgun to Perez. Som testified the handgun was on the television stand and Perez took it from that location. Som, Channita, and Khounvixay left to find more guns. They returned with an AK-47 and ammunition obtained from Boyz member Laja Oupathame. Chea racked the AK-47. Yann told the group if they were "going to do something, do it smart."
Channita testified that Yann was a "`shot caller" who had been in the gang a long time. Som testified that Yann was a senior member of the gang and in leadership. Khounvixay testified that Yann used to be a "`shot caller," but was no longer, and that Yann encouraged the group to retaliate for the shooting at Soms house. However, Khounvixay also testified that Yann tried to stop the retaliation, saying that people were too drunk. Mangsanghanh testified that Yann told the group to "lay low," that it was "too hot," and they should "like, drink ... kickback ...." Gang Detective Villalvazo testified that Yann was at the top of the gang hierarchy.
Chea, Perez, Chhang, and Mangsanghanh left to do the shooting. Mangsanghanh drove to Easterby Elementary School in Fresno and parked across the street from a nearby apartment complex known to be a TRG hangout. Chea and Perez got out of the car. Mangsanghanh and Chhang stayed behind and were told to wait. Mangsanghanh heard numerous gunshots. Chea and Perez ran back to the car with the guns and Mangsanghanh drove off. At the time of the shootings, a number of young women were in the parking lot of the apartment complex. Several of them testified that they were fired at as they sat in or around cars in the parking lot around midnight. Nath Ouch, who was eight months pregnant, was shot in the back and died from her wounds. Her unborn child also died.
A large number of bullets and spent casings were found at the scene of the shooting and at the elementary school. These were traced back to the AK-47 and the .45-caliber handgun. There was bullet damage to signs and cars near the site consistent with weapons having been fired from the direction of the school. Alvarez retrieved his gun after the murders. The .45-caliber handgun ultimately was discovered by police under the seat of Alvarezs truck.
When interviewed by police, Mangsanghanh became angry and told police, "fuck that pregnant roach bitch, she got what she deserved." "Roach" is a derogatory term used to refer to TRG members. Mangsanghanh told police that the shooting was retaliatory. Ouch was not a gang member, but she was the wife of a TRG member who, ironically, was implicated in the murder of Mung.
The prosecutions gang expert, Detective Villalvazo, testified that in his opinion the murders were done to benefit the gang in that it sent a message to the TRG that they were not to mess with the Boyz. Villalvazo also testified that some of the gangs primary activities were to engage in criminal acts such as possession of firearms, firing at residences, attempted murders, murders, stealing cars, drug sales, and intimidation of witnesses. There was also proof of a number of recent predicate gang offenses committed by Boyz members. There is no dispute that the TRG and Boyz are criminal street gangs active in the United States, and specifically in Fresno.
Yann voluntarily submitted to arrest near Denver, Colorado. Chea was arrested in St. Paul, Minnesota. Alvarez testified pursuant to a plea agreement, according to which he entered a plea of guilty to accessory after the fact in exchange for his testimony. Som, Khounvixay, Channita, and Oupathame also negotiated plea agreements. They entered pleas of guilty to voluntary manslaughter in exchange for their testimony. Perez remained a fugitive at the time of trial. Chhang was declared incompetent to stand trial.
Discussion
I. Admission of photos
Yann contends that the trial court abused its discretion when it allowed the admission of two autopsy photographs of Ouchs unborn fetus. One photo showed the fetus removed from the mothers womb but still in the amniotic sack. The second showed the fetus removed from the amniotic sack and laying in a fetal position. The pictures were published to the jury during the testimony of the coroner concerning the cause of death and the viability of the fetus. Yann argues that the photographs were more prejudicial than probative because the cause of death and the fact that the fetus was viable were not disputed facts. The defense had offered, but the prosecutor refused, a stipulation that the fetus was viable and had died as a result of the mothers injuries. The trial court ruled that the pictures were to be admitted because they were relevant and not unduly prejudicial. Yann now claims that allowing the pictures was an abuse of the trial courts discretion under Evidence Code section 352, and that the admission of the photos was so egregious that he was denied due process of law.
Having reviewed the photographs in question, we conclude that the trial court did not abuse its discretion in determining that the risk of undue prejudice did not substantially outweigh the photographs probative value. A court must exclude evidence under Evidence Code section 352 when the evidence uniquely tends to evoke an emotional bias against the defendant and has very little impact on the issues. Undue prejudice is not the prejudice that naturally flows from relevant, highly probative evidence. (People v. Salcido (2008) 44 Cal.4th 93, 148; see also People v. Karis (1988) 46 Cal.3d 612, 638 [evidence adverse to defendants case does not make it prejudicial within meaning of Evid. Code, § 352].) "`Relevant evidence means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Whether the fetus was viable at the time of death was an issue before the jury. The prosecutor was not required to enter into a stipulation to avoid having the jury consider the full impact of the evidence. (People v. Garceau (1993) 6 Cal.4th 140, 182 [prosecution not required to accept stipulation if effect is to deprive prosecutions case of its forcefulness; prosecution not obligated to sanitize case], disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
While we understand why the defendants wished to minimize the nature of the crime charged in count II, the prosecutor was not required to cooperate with the defense strategy. The evidence presented was not unduly gory and the fetus was in a natural pose. (People v. Heard (2003) 31 Cal.4th 946, 976, 977.) Although this was unquestionably unpleasant evidence and harmful to the defense, the pictures did not create the type of prejudice that flows naturally from relevant, highly probative evidence. "The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors." (People v. Ramirez (2006) 39 Cal.4th 398, 454.) There is also no merit to the argument that the photographs became cumulative once the coroner testified about the fetuss viability and to the cause of death. Our Supreme Court has consistently held that photographs of a murder victim need not be excluded as cumulative to other evidence in the case. (See People v. Cole (2004) 33 Cal.4th 1158, 1199; People v. Heard, supra, 31 Cal.4th at p. 978; People v. Gurule (2002) 28 Cal.4th 557, 625.) The trial court did not abuse its discretion nor was there a denial of due process.
Further, there is no prejudice under either the traditional abuse-of-discretion standard or the stricter constitutional standard of Chapman v. California (1967) 386 U.S. 18 (error must be harmless beyond reasonable doubt). There is ample evidence of guilt. Numerous witnesses testified that Yann was a senior member of the gang, and that the gang had gathered not only to party but also to discuss the need for retaliation against the TRG. Yann went to check out the shooting at Soms parents house. Although there was some conflict in the evidence about whether Yann encouraged the shootings, there is no question that Yann was present during the discussion and encouraged retaliation. Yann also provided the .45-caliber handgun. The AK-47 was exhibited in Yanns house in his presence. The guns were traced to the killings. There were numerous phone calls from Mangsanghanhs cell to Yanns house during and after the shootings. Yann called Som afterward to tell him the retaliation had been successful and to be careful. Further, the jurys acquittal of Perkins shows that the jury was not swayed by passion and prejudice, but carefully weighed the evidence related to each defendant and that it concluded Yann was a coconspirator to the murders.
The conflict was resolved against Yann. Mangsanghanh and Khounvixay testified that Yann tried to stop the retaliation saying that people were too drunk or that it was "too hot." Khounvixay, however, also said that Yann encouraged retaliation and all the witnesses placed Yann in the discussion and planning at his house that night.
B. Projection in courtroom
Yann also claims that he was prejudiced when the prosecutor violated the courts order and projected the photos of the fetus onto the screen in a PowerPoint presentation during closing argument. At the time the evidence was admitted, the trial court ordered that the pictures were to be published only to the jury and were not to be displayed on the large screen set up in the courtroom. The court reasoned that family members of the victim might be offended by seeing the pictures. The prosecutor, believing the ruling was limited to the time of admission, displayed the photo for five to 10 seconds, until counsel for the defense objected. The picture was immediately taken off the screen. Defense counsel then asked for a mistrial, which was denied. We conclude the court did not abuse its discretion in denying the motion for mistrial. The order was violated innocently and was intended to protect the victims family, not to sanitize the prosecutors case. As the court noted, the jury had already seen the pictures and had a right to view them. The short time in which the pictures were displayed on the large screen was not likely to add undue significance to the photos or prejudice the jury.
II. Prosecutorial misconduct
Yann claims the prosecutor engaged in prejudicial misconduct during closing argument when he (1) violated the court order not to display pictures of the fetus on the large screen in the courtroom, and (2) when he told the jury that the defendants had been afforded the full protection of the criminal justice system, but that the defendants had not afforded the same protections to Ouch and her child. The full statement was, "These defendants have been afforded every protection and right the best criminal justice system in this world has to afford at every step of the way. The evidence has gotten us to a point where they are proved well beyond any reasonable doubt to be guilty of the charged offenses. They didnt afford Nath Ouch or her child the protections they had received. On February 1st, because of nothing more than petty gang rivalry, they gunned down a pregnant woman. Let that sink in."
Whether a prosecutor is guilty of misconduct must be determined in light of the particular factual situation involved in each case. (People v. Bryden (1998) 63 Cal.App.4th 159, 182.) The test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade either the court or the jury. (People v. Rowland (1992) 4 Cal.4th 238, 274.) "What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant." (People v. Benson (1990) 52 Cal.3d 754, 793.)
First, even assuming for arguments sake that it was misconduct for the prosecutor to violate the courts order and project the photographs of the fetus in the courtroom, there is no prejudice for the reasons we have already mentioned. Second, the statements made by the prosecutor about the protections given the defendants did not improperly invite the jury to convict the defendants because they exercised their constitutional rights or because they were afforded due process of law. Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Lucas (1995) 12 Cal.4th 415, 473.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, a defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Gurule, supra, 28 Cal.4th at p. 627.)
The statements here, when read in context, emphasize only that the defendants were sitting alive in the courtroom, participating in a criminal justice system which protects their rights and affords them dignity, while their victims were no longer alive and had been gunned down while vulnerable and without protection. We see nothing improper with these comments. Further, if the comments could be deemed improper, they were not prejudicial. The jury properly was instructed on all aspects of the case, including their responsibility to acquit unless there was no reasonable doubt of guilt. As we have stated, the evidence of guilt was overwhelming, and the jury carefully considered the evidence as to each defendant. There is no reasonable likelihood the jury applied the prosecutors comments in an improper manner.
III. Hearsay statements of unknown gang members
At trial, Detective Villalvazo testified as a gang expert on the nature of gang membership and how gangs, like the Boyz, retaliate for attacks on them. In addition, Villalvazo testified that Yann was at the top of the gang hierarchy and that one of the primary activities of the gang was to engage in a variety of criminal offenses, specifically those listed in section 186.22, subdivision (e). When asked about the foundation for his testimony, Villalvazo listed his experience as a gang officer, his experience as a patrol officer in Fresno, his many investigations of gang crimes, and about his contact with gang members generally. Villalvazo indicated that his contact with gang members varied from responding to calls, to investigating crimes, to consensual contact with known gang members. He characterized these contacts as both formal and informal. For example, Villalvazo or other officers initiated some of the contacts. Gang members also initiated some of the contacts. Villalvazo admitted he had no academic training in the sociology of gangs, but stated that his opinions were based on real-world experience, his review of police reports and records, and his almost-daily interaction with gang members. Yann claims that allowing this hearsay evidence to serve as the foundation for Villalvazos expert opinions violated Yanns Sixth Amendment right to confront and cross-examine witnesses as defined by the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Under Crawford, and the later decision of Davis v. Washington (2006) 547 U.S. 813, the admission of testimonial out-of-court statements is barred by the confrontation clause of the Sixth Amendment unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.
There is nothing in Crawford or Davis that prohibits a gang expert from relying on hearsay as a basis for his or her opinions. (See, e.g., People v. Ramirez (2007) 153 Cal.App.4th 1422 (Ramirez); People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57; People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas).) "The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay." (Thomas, supra, at p. 1209, citing People v. Gardeley (1996) 14 Cal.4th 605, 618-619; Evid. Code, § 801, subd. (b).) Crawford does not undermine this established rule. (Thomas, supra, at p. 1210.) Since a gang expert "is subject to cross-examination about his or her opinions," and "the materials on which the expert bases his or her opinion are not elicited for the truth of their contents" but rather "are examined to assess the weight of the experts opinion," this evidence does not offend the Sixth Amendment. (Thomas, supra, at p. 1210.) "Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned." (Ramirez, supra, 153 Cal.App.4th at p. 1427, citing Thomas, supra, 130 Cal.App.4th at p. 1210.) The confrontation clause "`does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Thomas, supra, at p. 1210, quoting Crawford, supra, 541 U.S. at p. 59.) We believe Ramirez and Thomas are decided correctly. There is no Sixth Amendment violation.
Yann also contends it was an abuse of discretion for the court to overrule his objections on hearsay grounds to Detective Villalvazos testimony that Yann was at the top of the gang hierarchy. Yann claims the testimony was not opinion testimony but "simple passthrough of inadmissible hearsay from unnamed declarants." We reject this argument on a number of grounds. First, as we have already observed, hearsay is admissible when an expert testifies he or she relied upon it for the purpose of forming the opinion stated. (Thomas, supra, 130 Cal.App.4th at p. 1209; Evid. Code, §§ 801, subd. (b), 802.) Gang hierarchy is not something that falls within the everyday experience and knowledge of a juror. (Evid. Code, § 801, subd. (a).) Second, even if it was an abuse of discretion to admit the evidence, it is not reasonably probable that the erroneous admission of the evidence affected the jurys verdict. (People v. Jablonski (2006) 37 Cal.4th 774, 823 [wrongful admission of evidence reviewed under reasonable-probability standard of People v. Watson (1956) 46 Cal.2d 818].) Yanns long-time membership in the gang and his role in the conspiracy were well established by other testimony.
IV. Primary gang activity
Yann raises two related arguments challenging the evidence that one of the primary activities of the gang is the commission of criminal offenses. First, Yann argues that the evidence was insufficient to prove the "primary activities" element of the gang special circumstance and the gang enhancement. Specifically, he argues that Villalvazo did not know enough about the other activities of Boyz gang members to be able to establish that the gangs primary activity was criminal. Second, Yann argues that it was an abuse of discretion to allow Villalvazo to testify about the gangs primary activity because he lacked sufficient foundation for his expert opinion.
When an appellant raises a challenge on appeal to the sufficiency of the evidence to support a conviction, he faces a formidable task. In order to succeed, he must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the verdict and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (See People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Augborne (2002) 104 Cal.App.4th 362, 371 [applying standard to gang enhancement].)
Section 186.22, subdivisions (e) and (f), requires that the trier of fact find that one of the alleged criminal street gangs primary activities is the commission of one or more of the crimes listed in the gang statute. The requirement is satisfied by the testimony of a police gang expert, such as Villalvazo in this case, who expresses his opinion that the primary activities of the group in question include commission of one or more of the statutorily listed crimes. (See People v. Gardeley, supra, 14 Cal.4th at pp. 611, 620; People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith).) "Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the groups primary activities. Both past and present offenses have some tendency in reason to show the groups primary activity (see Evid. Code, § 210) and therefore fall within the general rule of admissibility (id.; § 351)." (Id. at p. 323.)
The statute reads: "(e) As used in this chapter, `pattern of criminal gang activity means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [¶] ... [¶] (f) 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." (§ 186.22, subds. (e) & (f).)
While acknowledging the relevancy of Villalvazos testimony about the gangs extensive involvement in the enumerated criminal activities, Yann argues that the absence of how the gang members spend their average day precludes a conclusion that the gangs "primary" activity is criminal. This argument lacks merit. As the Attorney General points out, the statute does not require that there be one primary activity. It only requires that one of the primary activities be criminal. As the California Supreme Court explained in Sengpadychith:
"The phrase `primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups `chief or `principal occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the groups members.... `Section 186.22 ... requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s]...." ( Sengpadychith, supra, 26 Cal.4th at p. 323, quoting People v. Gamez (1991) 235 Cal.App.3d 957, 970-971.)
It is not how the gang members spend their time that is determinative, but how the gang as a whole spends its time. The Sengpadychith court found the same type of proof offered here sufficient to meet this element: (1) proof that gang members consistently and repeatedly engage in criminal activity specified in the gang statute, and (2) testimony of a police gang expert based on conversations with gang members, and personal investigations of crimes committed by gang members, that the gang is primarily engaged in committing statutorily enumerated felonies. (Sengpadychith, supra, 26 Cal.4th at p. 324.) As an intermediate appellate court, we are bound to follow the lead of our highest state court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The evidence provided by Villalvazo and the other police officers, in addition to the gang members themselves, about the number and seriousness of the gangs criminal activity was sufficient to prove that one of the gangs primary activities is the commission of the felonies enumerated in the statute. There was no need for the jury to quantify the hours spent by gang members in non-crime-related endeavors or to compare those hours to the time spent in the planning and commission of the enumerated felonies. There was ample evidence of the types of crimes, most of which are listed in section 186.22, committed against the TRG by the Boyz in an attempt to establish their superiority. In fact, a strong inference can be drawn just from the evidence recounting the days leading to and the day of the shootings that a primary Boyz activity is felony assault of TRG members and associates.
We have concluded that Villalvazos testimony is the type of evidence required to prove primary gang activity. In light of this decision, it was not an abuse of discretion to admit his testimony even though he could not testify about what gang members did when they were not committing crimes or hanging out planning acts of retaliation against the TRG.
V. Accomplice instructions
Yann contends that the trial court erred when it refused to include Alvarez as a listed accomplice when giving Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 334. The instruction told the jurors that Channita, Khounvixay, and Som were accomplices and that the testimony of these witnesses was not sufficient to support a conviction unless corroborated by other evidence independent of the accomplices testimony. When asked to include Alvarez in the list of accomplices, the trial court concluded that Alvarez was not an accomplice and refused to include him because, although there was evidence Alvarez had provided Yann with the .45-caliber handgun, there was no evidence that Alvarez knew what the gun was to be used for. Yann contends that the court should have given CALCRIM No. 334, which allows the jury to determine whether the witness is an accomplice. He argues that there is evidence to support an inference that Alvarez should have known his gun would be used to retaliate against the TRG.
The testimony of an accomplice requires corroboration and must be viewed with caution. (§ 1111; People v. Tobias (2001) 25 Cal.4th 327, 331.) An accomplice is a person "liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.) We agree that the test of whether a witness is an accomplice is a factual, not legal, question. (People v. Fauber (1992) 2 Cal.4th 792, 834 [whether person is accomplice is question of fact for jury unless there is no dispute as to either facts or inferences to be drawn]; People v. Sully (1991) 53 Cal.3d 1195, 1228 [same].) Although the burden is on the defendant to prove by a preponderance of the evidence that a witness is an accomplice (People v. Tewksbury (1976) 15 Cal.3d 953, 963), "`[w]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices, including the need for corroboration." (People v. Tobias, supra, 25 Cal.4th at p. 331.)
There is evidence in the record from which a jury could have concluded that Alvarez was an accomplice and not merely an accessory after the fact. On similar facts, the court in People v. Fauber, supra, 2 Cal.4th 792, reached the same conclusion determining that the record supported, but did not dictate, a conclusion that the witness acted with guilty knowledge and intent with regard to the commission of the crime so as to be exposed to accomplice liability. There was evidence in Fauber that the witness had urged or had knowledge of the crime in the planning stage, but no evidence that he knew that the crime would actually take place or when. Considering this evidence, the court in Fauber held that the issue of whether the witness was an accomplice was a question of fact for the jury. We believe the same conclusion is required here. CALCRIM No. 334 should have been given and the jury should have been allowed to determine whether Alvarez was an accomplice to the murders.
In Fauber, the defendant was arguing on appeal that the court should have found the witness was an accomplice as a matter of law and given an instruction equivalent to CALCRIM No. 335 identifying the witness as an accomplice and directing the jury that the witnesss statement needed corroboration. Despite the difference in procedural posture, the analysis is the same here—is the question of the witnesss status a factual or legal one? Here, the trial court in essence made a legal determination that Alvarez was not an accomplice, where in Fauber, the defendant was seeking a legal determination that the witness was an accomplice. The correct conclusion in both Fauber and this case is that, unless the evidence is without dispute, the issue belongs to the jury, not the trial court.
Nonetheless, there is no prejudice. Even if Alvarez were an accomplice to the murders, his testimony was adequately corroborated. Corroborative evidence must come in by means of the testimony of a nonaccomplice witness, but it need not corroborate every fact to which the accomplice testified. (People v. Fauber, supra, 2 Cal.4th at pp. 834-835.) It is enough if the corroboration "tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." (Id. at p. 834.) Alvarezs testimony was corroborated by the testimony of those witnesses who saw the .45-caliber handgun at Yanns house the night of the shooting, by Soms testimony that he had been beaten up by the TRG, and by the evidence that the .45-caliber handgun used in the shooting was found in Alvarezs truck after the murders. Moreover, the jury had before it all the information it needed to recognize that Alvarez was not an innocent witness, but complicit in the murders, if not as an accomplice, then as an accessory after the fact. Telling the jury that Alvarez was an accomplice would not have made him less credible.
VI. Refusal of special instruction
At trial, Yann asked that the trial court give the following limiting instruction to the jury:
"You have heard evidence that defendant, Boualy Mangsanghanh, made a derogatory statement about the victim to Detectives Alcorn and Von Euw outside her parents restaurant on February 3, 2006. You may consider that evidence only against her, not against any other defendant."
The statement referred to in the requested instruction is Mangsanghanhs statement calling the victim a "pregnant roach bitch," who "got what she deserved" for "hanging around with those roaches ...." The trial court refused to give the instruction on the grounds that it was duplicative of standard instructions, CALCRIM Nos. 304 and 305, which it did give, with slight modifications.
Under appropriate circumstances, a trial court may be required to give instructions requested by the defense and relevant to its theory of the case, if legally correct and supported by some evidence. (People v. Whisenhunt (2008) 44 Cal.4th 174, 220.) However, the trial court can reject these proffered pinpoint instructions if duplicative to other instructions. (People v. Brown (2003) 31 Cal.4th 518, 570; People v. Gurule, supra, 28 Cal.4th at p. 659.) The correctness of jury instructions is determined from the entire charge of the court. (People v. Harrison (2005) 35 Cal.4th 208, 252.)
CALCRIM No. 305 reads: "You have heard evidence that defendant <insert defendants name> made a statement (out of court/before trial). You may consider that evidence only against (him/her), not against any other defendant." We may presume the jury followed its instruction. (People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Fauber, supra, 2 Cal.4th at p. 823.) The statement in question was attributable only to Mangsanghanh, who was not a gang member. It was made after the murders, when she was alone and being interviewed by police. The context of the testimony surrounding the statement clarifies that Mangsanghanh made the statement because she was angry and upset that her car was about to be towed. It further clarifies Mangsanghanhs emotions related to the murder of her friend Mung by the TRG. She made no reference to anyone else in the statement, including the codefendants. Unlike the case cited, People v. Rollo (1977) 20 Cal.3d 109, 123, footnote 6, the instruction given did not need to clarify the context or meaning of the statement made. It was clear which defendant made the statement and that no other defendants were involved in its declaration.
In any event, instructional error is not reversible unless an examination of the record establishes a reasonable probability that the error affected the outcome. (People v. Breverman (1998) 19 Cal.4th 142, 165.) The jury was instructed properly on how to consider the statements of the codefendants. There is no reason to believe under the circumstances of this case that the jury attributed Mangsanghanhs statements to Yann. Under any standard, there is no prejudice.
VII. Cumulative prejudice
Having reviewed the entire trial and considered the arguments made, we see no cumulative prejudice. We have rejected nearly all of the contentions of error raised by Yann and his codefendants in their separate appeals. Yann was provided a fair trial. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [no cumulative error where court rejects nearly all assignments of error; trial need not be perfect to be fair].) The issue was placed squarely before the jury: Did Yann conspire with the perpetrators to commit the murders? Did he aid and abet the perpetrators? To reach their verdict, the jury was required to resolve conflicts in the evidence over what Yann said and did at his house before the murders. Those conflicts were resolved against him. There is nothing in the record that suggests the jury considered or relied upon improper factors in doing so. There is no "sheer number" of misconduct or legal error here that requires a finding that the cumulative effects of the errors outweigh their sum parts. (People v. Hill (1998) 17 Cal.4th 800, 844 [court will not reverse judgment absent clear showing of miscarriage of justice].)
VIII. Sentencing error
Yann contends that the trial court erred in imposing four separate five-year enhancements. The Attorney General concedes error and we agree. Section 667, subdivision (a)(1), provides that any person convicted of a serious felony who previously has been convicted of a serious felony is to receive an additional five-year enhancement for each prior conviction "on charges brought and tried separately." To satisfy the "brought and tried separately" requirement, prior proceedings must be formally distinct from filing to adjudication of guilt. (In re Harris (1989) 49 Cal.3d 131, 136; People v. Flint (1986) 180 Cal.App.3d 13, 20 [charges brought in single accusatory pleading not brought and tried separately]; see also People v. Wagner (1994) 21 Cal.App.4th 729, 734-735.) Here, all four of the prior section 288a convictions were charged in a single charging document and were tried together. It was error to impose more than one, five-year enhancement on each count.
DISPOSITION
The judgment of conviction is affirmed. As conceded by the Attorney General, three of the five-year enhancements imposed pursuant to section 667, subdivision (a)(1), are ordered stricken. In all other respects, the sentence is affirmed. The trial court shall amend the abstract of judgment and distribute it to the appropriate authorities.
WE CONCUR:
Vartabedian, Acting P.J.
Levy, J.