People v. Morris CA4/1 ( 2015 )

Filed 2/23/15 P. v. Morris CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064450
Plaintiff and Respondent,
v. (Super. Ct. No. SCD214650)
TAMOYIA DUSHAWN MORRIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Gill, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Tamoyia Morris appeals from a judgment convicting him of two counts of murder,
five counts of false imprisonment, and other offenses, with true findings on gang
enhancements and various other enhancements and special circumstance allegations. The
charges arose from an incident in which members of the Lincoln Park gang entered a
home associated with another Lincoln Park gang member who was in trouble with the
gang for not complying with the gang's dictate that he share the proceeds from his drug
dealing with the gang. Defendant argues there is insufficient evidence to support that he
was one of the perpetrators of the offenses. In support, he challenges two key items of
the prosecution's case, contending (1) the trial court erroneously admitted a hearsay
statement identifying him as a perpetrator under the declaration against penal interest
exception, and (2) his DNA found at the scene had no evidentiary weight because the
experts could not definitively determine that it was deposited at the time of the offenses
as opposed to an earlier date. We reject these contentions and find sufficient evidence to
support the jury's verdict.
Further, defendant contends (1) the trial court erred in admitting a different item of
DNA evidence that he claims was irrelevant and prejudicial; (2) the court erred in failing
to sua sponte clarify the meaning of "in association with" a gang for the gang
enhancements; (3) there was insufficient evidence to support the gang enhancements; and
(4) an expert improperly assumed defendant was a perpetrator when providing opinion
testimony. We find no reversible error.
Finally, defendant raises legal challenges to the multiple murder, prior murder, and
felony murder special circumstances, which we find unpersuasive.
2
FACTUAL AND PROCEDURAL BACKGROUND
The criminal events in this case occurred in November 2005 when several
members of the Lincoln Park gang entered a residence (located on Velma Terrace) to
search for cash that they believed had been placed there by Lincoln Park gang member,
Tyree "ZZ" Jabbar (ZZ).1 During the burglary and attempted robbery at this residence,
the gang members tied up five people who were at the residence and ultimately shot and
killed two of them. One of the victims (Meico McGhee) was ZZ's older brother. ZZ was
a younger Lincoln Park gang member who had incurred the wrath of older Lincoln Park
gang members because he was not distributing money he earned from drug sales back
into the gang.
As we shall detail below, key components of the prosecution's evidence included
DNA found at the scene showing defendant's DNA and victim McGhee's DNA in the
same bloodstain, and a police interview with a Lincoln Park gang member (Marquis
Veal) who was arrested in 2008 for a parole violation and agreed to speak about the
gang's activities. Veal claimed gang member Terrill Bell had identified himself and three
other older gang members (Michael Mason, Elliott Perry, and defendant) as perpetrators
of the Velma Terrace crimes. Additionally, the prosecution presented evidence derived
from recorded phone conversations between defendant and defendant's cousin (Dana
Purvis), who was also a Lincoln Park gang member. These conversations, which were
recorded in 2004 and early 2005 via wiretaps associated with crimes occurring prior to
1 To the extent people involved in this case share the same last names, we refer to
them by their first names.
3
and unrelated to the Velma Terrace crimes, provided information about conflicts
occurring between different factions of the Lincoln Park gang and shed light on the
motive for the subsequent Velma Terrace offenses. From the wiretapped conversations
and interview with Veal, the authorities learned that in the months preceding the Velma
Terrace offenses, there had been violent altercations arising from a conflict between ZZ
and Bell concerning ZZ's refusal to provide drugs to Bell, and a dispute had developed
between defendant and ZZ because ZZ had elected to work with a competing Lincoln
Park faction led by Carl Rouse.
The key disputed issue at trial was whether defendant was present at the scene
during the Velma Terrace offenses. The defense theory was that Veal's identification of
defendant as one of the perpetrators was based on rumor rather than from information
provided by Bell, and it was impossible to know if defendant's DNA was deposited at the
scene at the time of the crimes or on an earlier occasion when he visited ZZ at the
residence.
Conflicts Within the Lincoln Park Gang Concerning the Murder Victim's Brother ZZ
Through the wiretap surveillance and the information later provided by Veal, the
authorities learned that in 2004 and 2005 the Lincoln Park gang (which had about 445
documented members) was going through a period of sharp divisions among its
members. The gang was fractured among different crews who were separately engaging
in robbery and drug trafficking. Also, younger gang members who were making money
on drug sales were not giving money to the older members who had "put in the work"
and been incarcerated. Older Lincoln Park gang members were not seeing the respect
4
and support from the younger drug-dealer gang members, and the older members were
trying to explain to the younger ones how things operate within the gang and to get them
to pay "their dues." According to a prosecution gang expert, the whole idea of a street
gang is to "stay together" and if "one succeeds, they all succeed," and gang members who
engage in drug dealing make money to provide the "fuel" that runs the gang.
Because ZZ was not giving money from his drug dealing back to the gang, other
Lincoln Park gang members were confronting him, including by robbing and threatening
him. Bell was an older member of a Lincoln Park crew that was trying to "tax" ZZ and
was not satisfied with the amount of money provided by ZZ. During an incident in the
fall of 2004, Bell confronted ZZ at a convenience store parking lot and told ZZ that he
had to supply him with drugs or he would be disciplined. ZZ never provided the drugs.
Several days later, Bell followed ZZ while they were in their vehicles, and during this
incident ZZ shot at Bell and struck his vehicle. Shortly thereafter, in September 2004,
Bell shot and killed ZZ's father while the father was standing outside the family
residence.
After the shooting of ZZ's father, ZZ moved out of the family residence to an
unknown location. The wiretaps revealed that gang members believed ZZ was holding a
large amount of cash somewhere, and gang members wanted to find it. When ZZ
"surfaced again" in January 2005, he was tied up and robbed a second time by a Lincoln
Park gang crew led by Rouse. During this robbery, ZZ provided the gang members with
the home address of defendant's younger cousin (Purvis) as a possible place to find the
money.
5
In intercepted phone calls between defendant and Purvis, they talked about the
January 2005 robbery of ZZ, and Purvis told defendant that whatever defendant was
" 'thinking of doing to [ZZ] has already been done.' " Defendant told Purvis that he
would take ZZ "under his wing" so the robberies from the other gang members would
stop. Because ZZ was concerned he would be targeted again by the other gang members,
defendant allowed ZZ to stay at another location unknown to the other gang members.
The gang expert explained that when an older gang member provides this type of
protection to a younger gang member it is not done out of friendship or concern but rather
for purposes of control, and the younger member is expected to compensate the older
member.
The intercepted phone calls revealed defendant's attempt to establish this
protective relationship with ZZ ultimately was not successful because ZZ eventually
started working with Rouse's faction of the Lincoln Park gang. Defendant and Rouse had
a "history" and were antagonistic towards each other; they were competing for ZZ's
cooperation with their respective crews; and defendant was angry that ZZ had decided to
work with Rouse. Defendant told Purvis he saw ZZ get into a car with Rouse and ZZ
was not listening to him and was not "following the plan." In another call, defendant
instructed Purvis to call ZZ and tell him not to shoot at defendant like he shot at Bell
when defendant came to retrieve some keys from ZZ.
Based on the wiretaps and physical surveillance of Rouse's robbery crew and of
ZZ, the authorities arrested ZZ in March 2005 at the Velma Terrace residence where ZZ
was believed to be staying at the time. Rouse was also arrested.
6
The Velma Terrace Murders
The three surviving victims of the Velma Terrace crimes were ZZ's sister (Hana
Jabbar), Preston Adams and his wife Stacey Adams. The two murder victims were
McGhee (ZZ and Hana's brother) and McGhee's girlfriend (Sacha Newbern). All of the
victims except McGhee were living at the residence, and McGhee spent the majority of
the day there and sometimes spent the night. ZZ was incarcerated at the time of the
offenses.
The intruders arrived at the residence the morning of November 25, 2005, and did
not leave until about 12 hours later. When the intruders first arrived at the residence,
only Stacey and Newbern were at home, and during the course of the day Preston,
McGhee, and Hana arrived. The victims were restrained while the intruders ransacked
the home trying to find the money they thought was at the residence. McGhee was
involved in a lengthy fight with the intruders in the hallway and, along with Newbern,
was ultimately placed in a bathtub and shot. At trial, Stacey, Preston, and Hana testified
about what occurred.
Sometime before 9:00 a.m., Stacey heard a noise, and when she opened her
bedroom door, a masked man was standing there with a gun. He was yelling at her and
asking where the $500,000 was, and she told him she did not know what he was talking
about. The man told her to get down; she complied and the man "hogtied" her on her
bedroom floor. A second man came in her bedroom and asked about the money and
where Hana was; Stacey told him Hana was at work. The men blindfolded Stacey with a
bandana.
7
Stacey could hear the intruders "rifling though stuff" throughout the house and
going in and out of the house looking for the money. The men were communicating with
each other through walkie-talkie type devices. At about noon or 1:00 p.m., Preston
arrived and was confronted by a masked man pointing a gun at him and telling him to get
down. Preston complied, and then another man blindfolded him and walked him at
gunpoint to his bedroom, where he was tied up along with Stacey. The men were asking
Preston if he knew anything about any money, and Preston told them that he had just
moved in and did not know anything about it. At some point the men also brought
Newbern into the bedroom with Stacey and Preston.
McGhee arrived home around 2:00 p.m., and when he did not comply with the
intruders' orders to get down, they attacked him. There was a lengthy fight in the
hallway, and Stacey and Preston heard people banging up against the walls and the sound
of breaking glass from a picture frame. The men were saying " 'keep hitting him,' "
yelling at him to give them the gun and to stop fighting, and asking him where the money
was and about his brother. Eventually, Stacey and Preston could hear McGhee moaning
and wheezing and no longer fighting, and they heard a man say to put him in the bathtub.
Preston heard the men say " 'This fool, he just wouldn't listen. I don't know why he went
for the gun.' "
After the fight with McGhee, Stacey and Preston could hear the men running the
vacuum and using spray bottles to clean the hallway next to the bathroom and the living
room.
8
When Hana arrived home around 4:35 p.m., a masked man held a gun to her head
and told her to get down on the living room floor, and another man tied her up and
blindfolded her. The men addressed her by name; said they had heard a lot about her and
knew " 'what's up' "; demanded the money that ZZ had hidden at the house; and told her
if she did not give them the money they would kill her brother. She knew there was no
money at the house, but to try to save her brother she told the men it might be in the
backyard. The men took her to the back door to give directions about where to dig, and
the men dug in the yard for about 15 or 20 minutes. The men brought her back to the
living room and continued to ask her where the money was. Hana told them it was in a
safe in her bedroom, and the men escorted her there and took off her blindfold so she
could show them the safe. The men thought she was "bull jiving" them about money in
the safe but decided to take the safe with them. They then hit her over the head with a
gun and placed her in a closet in Newbern's bedroom.
Shortly before the shootings, the men moved Stacey and Preston to Hana's
bedroom and retied them. Newbern was lying on the hallway floor screaming. The men
turned on all the televisions in the house at full volume, and put Newbern in the bathtub
with McGhee. Stacey heard two of the men arguing; they were calling each other
"blood" (a word associated with the Lincoln Park gang) and one of them was saying he
was not going to do this alone and the other man had to "get some dirt on his hands too"
9
and "put in work."2 Preston and Stacey heard gunshots and smelled gasoline. During the
shooting, Preston heard a gunshot; heard one of the men say, " 'You shoot too . . . you've
got to put in work also' "; and then heard another gunshot. Hana (who was still in the
closet) heard her brother begging for his life; heard the men tell him "[g]et ready to go
with your father"; and then heard the gunshots.
After the shooting, the smoke alarms went off in the house, and the surviving
victims could hear the men go out the front door. The surviving victims were able to
untie themselves, and they fled the residence, ran to their neighbors, and summoned the
authorities. Victims McGhee and Newbern, who had been shot in the head, died from
their gunshot wounds. They also suffered blunt force injuries and chemical burn injuries
consistent with the use of gasoline.
The surviving victims thought there were three to six intruders involved in the
incident. Regarding the identity of the intruders, Hana identified one of them as Mason,
and testified defendant was not one of the three men she was able to see at the residence.
Apart from Hana's identification, the surviving victims provided only general
descriptions of the intruders' appearances.
2 At other points Stacey, Preston, and Hana heard the intruders call each other
names associated with a rival Crips gang, but these witnesses felt this was an attempt to
fool them about which gang the intruders were from.
10
DNA and Other Crime Scene Evidence
DNA testing of evidence taken from the crime scene showed blood belonging to
the murder victims; a mixture of victim McGhee's and defendant's DNA in a bloodstain
on the bathroom door; and Mason's DNA on a cigarette butt in the bathroom toilet.
The mixture of McGhee's and defendant's DNA was located on a transfer
bloodstain on the door of the bathroom where the victims had been killed. The parties
stipulated that McGhee was a major contributor and defendant was a minor contributor to
the DNA found in this blood stain. The bathroom door swung inwards from the hallway
into the bathroom, and the stain was on the outside of the door as it faced the hallway and
was located in the middle area of the door. A criminalist who examined the stain at the
scene testified that it appeared there was a transfer of blood to the door followed by some
movement which created a "swipe" or "wipe" transfer stain.3
To assist with the jury's determination of the significance of the DNA evidence,
two DNA experts, Ian Fitch and Shawn Montpetit, testified on behalf of the prosecution
to explain how DNA can be deposited, detected, and examined for degradation. They
testified that DNA is most easily detected when a person leaves behind biological
"source" material like blood, semen, saliva, or nasal secretions, and DNA transfers most
readily in a moist environment. With the recent development of more sensitive testing,
3 The criminalist explained that a transfer stain occurs when a bloodstained object
comes into contact with an unstained surface and leaves some evidence of that contact
behind. A "swipe" transfer stain would have occurred on the door if a moving bloody
object contacted the wall, and a "wipe" transfer stain would have occurred if there was
blood on the wall and an object moved through it. He testified the bathroom door stain
could have been from a swipe or a wipe, although a swipe appeared more likely.
11
DNA can also sometimes be detected when a person touches an object; for example, if a
person repeatedly touches an object over time thereby depositing skin cells, and/or if the
person has moisture on his or her hand from sources such as sweat, nasal secretions, or
eyes when touching the object. DNA can remain on an object for several months, and the
more someone handles an object, the more likely DNA will be deposited there; for
example, residents of a home would likely leave DNA deposits throughout the home.
However, touch DNA provides a much lower level DNA than DNA from bodily fluids
such as blood or semen. Further, DNA degrades over time, and the rate of degradation
can be influenced by weather and the use of cleaning products. Degraded DNA has a
very characteristic look to it, and an examination of the DNA profile created from the
testing can indicate whether degradation has taken place. Although it is not possible to
determine when a DNA sample was deposited, the older the sample is, the more likely
some kind of degradation would be observed.
The prosecution experts testified that the bathroom door bloodstain showed a
DNA mixture from at least three or four people, including McGhee and defendant.
McGhee's DNA was the major contributor and a very strong sample; defendant's DNA
was a significant contributor; and the DNA from the remaining person or persons was at
a level too low to allow a determination of its source. Because the DNA sample from the
bathroom door contained blood and because McGhee was bleeding, it was reasonable to
assume that McGhee's DNA was from the blood. Defendant's DNA could have come
from either his blood or his skin cells.
12
Fitch testified he did not see any significant degradation in McGhee's and
defendant's DNA samples from the bathroom door, and opined their DNA was
"somewhat fresh" and consistent with having been "deposited simultaneously." He
explained that if their DNA had been deposited at different times, he would have
expected differences in degradation between the two DNA samples, with the older
sample showing degradation and the newer sample not showing it, whereas the DNA in
the blood stain showed no major degradation at all. Also, the DNA in the blood stain
would have been at a much lower level if it was touch DNA.
Similarly, Montpetit testified that although there was a "slight differential
degradation" between McGhee's DNA and the DNA of the other contributors in the
bloodstain, there was no "significant degradation" in the samples and there was no
significant difference in degradation between McGhee's DNA and defendant's DNA.
Montpetit opined that McGhee's and defendant's DNA were deposited "in close
proximity in time to each other," explaining that if the samples had been deposited at
significantly different times he would have expected to see more of a difference in
degradation between them.
Both Fitch and Montpetit acknowledged that although their evaluations of
McGhee's and defendant's DNA samples were consistent with the samples having been
deposited at the same time rather than at different times, they could not rule out that
McGhee's and defendant's DNA were deposited at different times, and it was not possible
to determine with any degree of scientific certainty when the samples were deposited.
The experts recognized that the blood on the door could have been "swabbed over the
13
DNA samples" from the other DNA contributors, and it was possible that defendant's
DNA had been on the door for several months or weeks or that it was deposited the same
day as the crimes.
Montpetit also tested a DNA "control" sample taken from a spot on the bathroom
door a few inches from the bloodstain on the door. His results showed this sample was
highly degraded; it was from ZZ (who had not been in the house for over eight months);
and it contained substantially more DNA than the DNA from the bloodstain. Based on
the differences in degradation, he opined that ZZ's DNA had been on the door much
longer than defendant's and McGhee's DNA.
Prior to the shootings, Hana had been living at the Velma Terrace residence for
about four months and Stacey and Preston had been there almost two months. They did
not know defendant and to their knowledge he had not been at the house while they lived
there. Hana testified her brother ZZ (who was friends with defendant) had stayed at the
house for about two weeks in February 2005.
Post-murder Events, Including Bell's Identification of Defendant as a Perpetrator
Defendant was identified as a suspect in the Velma Terrace murders about two
years after their occurrence, when, in February 2008, Lincoln Park gang member Veal
was arrested for a probation violation. Hoping to be released to attend his grandmother's
funeral, Veal agreed to speak with the authorities about the gang's activities. In a video
recorded interview (which was played for the jury), Veal told Detective Scott Barnes that
14
he acquired information about the Velma Terrace incident from Bell.4 Veal explained
that the Velma Terrace house was known as "another Jabbar house" (apparently referring
to ZZ), and the gang members were looking for money that was believed to be at the
house. Veal indicated that Bell was a shooter at the incident, and that three other people
were involved: defendant, Perry, and Mason.5 A prosecution witness testified that Bell,
Mason, Perry and defendant were all older Lincoln Park gang members, ages 36 or 37.
Bell and Mason (who had reputations as "shooters") were close friends, and defendant
and Perry were close friends.
Veal also told Detective Barnes that the people involved in the Velma Terrace
incident were now " 'feuding with each other over this,' " explaining that Perry and
Mason were "shooting at each other" over the incident. Corroborative of this claim, the
4 Veal was called to testify at trial but recanted the recorded statements he made to
Detective Barnes concerning the incident.
5 Detective Barnes testified that during the interview with Veal he was taking notes
and he wrote down the names of the four persons Veal identified as being involved in the
Velma Terrace incident; Veal pointed to Bell's name when the detectives asked him who
the shooter was; and Veal also indicated that Bell was the person who told him about the
incident. When asked if Bell was the only shooter, Veal responded, "I can't say if he's the
only shooter.' "
The record on appeal does not include the actual recorded interview that was
played for the jury, although it includes a transcript that was provided to the jury but not
admitted into evidence. As set forth in the transcript, the detectives asked Veal, "who
talked to you about that one [Velma Terrace]? I mean, I know a lot of people heard and
talked and they just say . . . ." Veal responded, ". . . I talked to him a little—he ain't
gonna talk about it. I've talked to him about it, but he don't want to . . . [¶] . . . [¶]
. . . 'cause . . . it was so dumb that they didn't get no money, they try not to talk about it."
On cross-examination, Barnes acknowledged that although it might be confusing when
viewing the transcript on its own as to how Veal acquired information about the Velma
Terrace shooting, it was clear at the interview that Veal was saying he acquired the
information from Bell.
15
authorities learned about several incidents that occurred in 2007 during which it appeared
that Mason was threatening and/or shooting at defendant and Perry.
In June 2007, defendant's mother contacted the police and reported that defendant
received a letter and voicemails from Mason in which Mason accused defendant of being
a "snitch" and stated Mason was going to kill defendant, and Mason demanded money
while he was absconding from the authorities and threatened to harm defendant or his
family if he did not help. Defendant's mother was afraid of Mason because she knew he
had committed a murder on Thanksgiving in 2005 (an apparent reference to the Velma
Terrace murders). When defendant's mother suggested to defendant that they contact the
police, defendant became upset, said he did not want to be a snitch, threw their phone out
the window, and began throwing objects in the house.
On August 6, 2007, the police were summoned to the scene of a shooting at
Perry's sister's home. Witnesses reported that a motorist fired a gun at two males
standing outside the home, and the males fired back at the motorist. A bullet found by
the front door of the residence matched a gun tied to Mason by DNA evidence, and the
description of the motorist's vehicle matched a vehicle being used by Mason. Based on
their investigation, the authorities believed the intended victims of the shooting were
Perry and defendant.
The next day, August 7, 2007, the police received phone calls about gunshots in a
Lincoln Park neighborhood. While the police were investigating a residence identified in
one of the phone calls, defendant came out of the residence (his grandmother's home).
Defendant said he heard gunshots but his house had not been hit. Defendant and the
16
police discussed several bullet holes that were in the exterior wall of the residence, and
defendant and his grandmother told the police the holes happened a long time ago. Later
in 2008, while the Velma Terrace case was still under investigation, the police extracted
bullets from the exterior wall of the grandmother's home and forensic testing showed the
bullets matched the gun tied to Mason by DNA evidence.
Gang Experts' Testimony
The prosecution gang experts testified that in gang culture fear and intimidation
play a significant role by allowing the gang to exercise control. The gangs create fear in
the community, in rival gang members, and in members of one's own gang. Also, respect
is "everything" in gang culture and disrespect displayed by one gang member towards a
fellow gang member is treated "[s]everely," including by shooting and murder. A gang
member who has been disrespected by another gang member (whether from a rival gang
or the same gang) must retaliate or he will be viewed as weak and lose status in the gang.
In the Lincoln Park gang, there are different generations of gang members; there
are rules that the members must abide by; and if members do not abide by the rules and
disrespect other gang members, the disrespected members must "take care of business."
Members of the same gang may fight each other to try to fix the problems and come to a
truce, and if this does not work, depending on the nature of the disrespect, the altercation
may go "all the way up to death." The experts explained that although it was not usual to
have the type of extreme violence between people associated with the same gang as
occurred in the Velma Terrace murders, this type of activity does happen, and resolving
17
internal gang issues in a violent manner brings "authority to the gang" in the same
manner as external gang violence brings authority between rival gangs.
A gang expert also testified that if Lincoln Park gang members are making money
from drug dealing or robberies or theft, they are expected to give some money back to the
gang. If a gang member hordes the money for himself, this will create issues that need to
be dealt with. Also, if a younger drug-dealer gang member responds to "taxing" efforts
of an older gang member by shooting at the older gang member, this would be a sign of
disrespect that would require the older gang member to shoot back and kill the younger
member. The expert opined that the Velma Terrace crimes were committed in
association with and for the benefit of the Lincoln Park gang, based on the showing that
Lincoln Park gang members committed the offenses and they had a motive to commit
them because another gang member was not giving money back to the gang.
Defense
To refute the prosecution's evidence that Bell had identified defendant as one of
his accomplices, the defense called retired detective John Tefft as a witness. The day
after Detective Barnes interviewed Veal, Tefft (who was working as a cold case homicide
detective) also interviewed him.6 Tefft testified that Veal told him he acquired
information about the Velma Terrace incident from people who came to his house and
while he was in jail. Veal said he had a conversation with Bell, and Bell told him that he
6 Detective Tefft took notes during the interview but apparently did not record it.
When he interviewed Veal, Tefft knew that Veal had provided information about various
cases to the detectives who arrested him the previous day, but Tefft did not know
anything about what Veal had told the detectives.
18
and some other people were at the Velma Terrace house looking for a "huge stash of
cash" but did not find it; they went to another house but again did not find the money;
and "the murders happened after that." Veal told Tefft that this was the only information
he received from Bell, and he learned through "various rumors" from " 'other people' "
that the persons who were involved in the incident with Bell were defendant, Mason, and
Perry.
To rebut the prosecution's DNA expert testimony, defense DNA expert Suzanna
Ryan testified that it was not possible to determine with any certainty when each
contributor's DNA was deposited at the bathroom door bloodstain. Further, she testified
that she observed differential degradation in the DNA samples, and that McGhee's DNA
was not degraded to the same degree as defendant's DNA. She opined that because the
degradation of defendant's and McGhee's DNA was not consistent, and because one of
the things that causes degradation is the passage of time, it was possible that defendant's
sample was on the door for a longer time than McGhee's. Further, she testified there was
no scientific support for an assessment that defendant's DNA would have been less strong
and more degraded if it had been placed on the door several months before the crime.
Also, she agreed that ZZ's DNA was substantially more degraded than McGhee's and
defendant's DNA in the bloodstain, but opined there was no way to determine why there
was this difference, and she noted ZZ's DNA could have been more degraded because the
different areas of the door may have been subjected to different amounts of cleaning.
The defense also presented testimony from ZZ, who stated that he was "best
friends" with defendant's cousin Purvis; he had a good relationship with defendant and
19
spent a lot of time with him; he at times gave defendant money and defendant was
protective of him; a couple of times defendant intervened with the problems that ZZ had
with other Lincoln Park gang members because of his money; and defendant let him
move into his apartment after his father was killed.
Regarding Rouse (the older Lincoln Park gang member from a different faction
than defendant's faction), ZZ testified that defendant told him not to meet with Rouse but
if he did so to be careful; when ZZ did meet with Rouse defendant was in the vicinity
watching to "make sure nothing happened"; and ZZ got into a car with Rouse even
though defendant had told him not to do so for his own protection. Rouse told ZZ not to
trust defendant, but defendant never did anything that made ZZ feel uncomfortable.
ZZ stated defendant was not happy he was working with Rouse, but claimed
defendant's objection was because it was not in ZZ's best interests. ZZ denied he was
trying to decide between protection from defendant or Rouse; claimed he was still friends
with defendant when he was working with Rouse; and denied defendant wanted his keys
back to his apartment because of ZZ's decision to work with Rouse.
ZZ lived in defendant's apartment for about two and one-half months, and then
returned to live at the Velma Terrace house. Before his arrest in March 2005, defendant
was around him "quite a bit at that time" and defendant visited him at the Velma Terrace
house on several occasions. In early March before ZZ's arrest, ZZ gave defendant $3,000
cash for his birthday.
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Jury Verdict and Sentence
Defendant was convicted of the first degree murders of McGhee and Newbern
based on a theory of felony murder during the commission of a burglary or attempted
robbery. He was also convicted of burglary; attempted robbery; false imprisonment of
Newbern, McGhee, Stacey, Preston, and Hana; and possession of a firearm by a felon.
True findings were made on gang enhancement allegations, special circumstance
allegations, firearm use allegations, and prior serious felony and strike allegations. The
court sentenced defendant to two terms of life without parole, plus an indeterminate term
of 75 years to life, and a determinate term of 36 years and two months.
DISCUSSION
I. Sufficiency of Evidence To Establish Defendant as One of Perpetrators
Defendant argues there was insufficient evidence for the jury to find beyond a
reasonable doubt he was one of the intruders at the house at the time of the murders. In
support, he claims (1) the evidence of his DNA on the bathroom door provides no support
for the verdict because the experts could not conclusively determine his DNA was placed
on the door at the time of the crimes as opposed to an earlier date, and (2) the evidence of
Bell's hearsay statement to Veal identifying defendant and Bell as two of the perpetrators
provides no support for the verdict because the statement was not admissible as a
declaration against Bell's penal interest.7
7 The testimony concerning Bell's identification of defendant involved two layers of
hearsay: Bell's statement to Veal, and Veal's statement to Detective Barnes. Defendant
focuses his challenge on Bell's hearsay statement to Veal, and he does not present any
21
We shall first evaluate defendant's claim that Bell's statement identifying
defendant and himself as perpetrators was not admissible as a declaration against Bell's
penal interest, and then evaluate the bathroom door DNA evidence and the overall
sufficiency of the evidence to support that defendant was involved in the Velma Terrace
crimes.
A. Admission of Bell's Statement Identifying Himself and Defendant
as Declaration Against Penal Interest
Under the declaration against penal interest exception to the hearsay rule, a
declarant's statement is admissible "if the declarant is unavailable as a witness and the
statement, when made . . . so far subjected him to the risk of civil or criminal liability . . .
that a reasonable man in his position would not have made the statement unless he
believed it to be true." (Evid. Code, § 1230.) In addition to being against the declarant's
penal interest, the statement must be "sufficiently reliable to warrant admission despite its
hearsay character." (People v. Duarte (2000) 24 Cal. 4th 603, 611.)
To qualify as a statement against penal interest, the statement must be specifically
disserving to the declarant; thus, any portions of the statement that are self-serving to the
declarant must be excised from the statement. (People v. Duarte, supra, 24 Cal.4th at pp.
611-612.) To the extent the declarant attempts to " 'shift blame or curry favor,' " these
aspects of the statement are not disserving. (Ibid.) Also, collateral statements that
contain self-serving information cannot be deemed credible merely because they are
developed argument concerning Veal's hearsay statement to Detective Barnes. Veal
testified at trial, whereas Bell did not.
22
incorporated in an admission of criminal culpability. (Ibid.) Thus, a statement " 'which
is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but
places the major responsibility on others)' " is generally not trustworthy. (Id. at p. 612;
see People v. Campa (1984) 36 Cal. 3d 870, 883 [indicia of reliability lacking where
declarant " 'blamed a coparticipant for the commission of the greater offense while
admitting complicity to some lesser degree' "].)
In Lilly v. Virginia (1999) 527 U.S. 116, the United States Supreme Court
provided guidance on the showing required to constitutionally permit admission of a
hearsay statement from a nontestifying accomplice that inculpates both the accomplice
and the defendant. Lilly explained, " '[W]hen one person accuses another of a crime
under circumstances in which the declarant stands to gain by inculpating another, the
accusation is presumptively suspect and must be subjected to the scrutiny of cross-
examination.' " (Id. at p. 132.) The Lilly court stated that when an accomplice's
inculpatory statements "shift or spread the blame" to a defendant, the statements fall
outside the realm of firmly rooted hearsay exceptions that apply to hearsay that is so
inherently trustworthy as to satisfy the confrontation clause. (Id. at pp. 126, 133-134.)
Accordingly, to satisfy constitutional confrontation clause requirements, an accomplice's
hearsay statements that inculpate both the accomplice and the defendant are only
admissible upon a showing of " 'particularized guarantees of trustworthiness' "; i.e., when
the declarant's truthfulness is so clear from the surrounding circumstances that the test of
cross-examination would be of marginal utility. (Id. at pp. 125, 136.) In Lilly, the
declarant admitted some participation in the charged crimes, but claimed the defendant
23
was the mastermind and the one who instigated a carjacking and committed a shooting,
whereas the declarant had nothing to do with the shooting. (Id. at pp. 120-121.) The
Lilly court concluded this trustworthiness test was not met because the circumstances
showed the declarant made the statements in a custodial setting in response to police
questioning and he had a natural motive to exculpate himself as much as possible. (Id. at
p. 139.)
Consistent with Lilly, California courts have concluded that when a declarant
makes a statement inculpating himself and the defendant, but with no attempt by the
declarant to shift blame or minimize his responsibility, the entire statement may be
admitted provided there is a clear showing that the statement was made under
circumstances showing its trustworthiness. (People v. Samuels (2005) 36 Cal. 4th 96,
120-121; People v. Arauz (2012) 210 Cal. App. 4th 1394, 1400-1401; People v. Arceo
(2011) 195 Cal. App. 4th 556, 576-577; People v. Cervantes (2004) 118 Cal. App. 4th 162,
174-175; see People v. Schmaus (2003) 109 Cal. App. 4th 846, 859.) To determine
trustworthiness, the court may consider not only the words used, but also the
circumstances under which they were made, the possible motivation of the declarant, and
the declarant's relationship to the defendant. (People v. Duarte, supra, 24 Cal.4th at p.
614.)
In Samuels, the declarant told a friend that he and another individual had
committed a murder; the defendant paid the declarant for this; and the declarant skimmed
money off the top of this payment and provided the balance to the person who assisted
him with the murder. (People v. Samuels, supra, 36 Cal.4th at p. 120.) The Samuels
24
court concluded the entire statement was admissible, explaining: "[the declarant's]
facially incriminating comments were in no way exculpatory, self-serving, or
collateral. . . . [The declarant's statement that defendant paid him], volunteered to an
acquaintance, was specifically disserving to [the declarant's] interests in that it intimated
he had participated in a contract killing—a particularly heinous type of murder—and in a
conspiracy to commit murder. Under the totality of circumstances presented here, we do
not regard the reference to defendant incorporated within this admission as itself
constituting a collateral assertion that should have been purged . . . . Instead, the
reference was inextricably tied to and part of a specific statement against penal interest."
(Id. at pp. 120-121.)
In Arceo, the declarant "bragged" to friends about his and the defendant's joint
involvement in two murders, describing how he killed one victim and was going to shoot
the second victim, but at defendant's request he handed the gun to the defendant and the
defendant shot the second victim. (People v. Arceo, supra, 195 Cal.App.4th at p. 576.)
Arceo found the entire statement admissible, reasoning that the declarant's statements
describing his intent to shoot the second victim and defendant's taking over of this
shooting "clearly subject[ed] [the declarant] to criminal liability for the second murder."
(Id. at p. 577.) Also, the statements were made under circumstances showing their
trustworthiness, including that they were made in a conversation between friends in a
noncoercive setting and with no attempt to shift blame. (Ibid.; accord People v. Arauz,
supra, 210 Cal.App.4th at p. 1401 [sufficient indicia of trustworthiness reflected in
declarant's jailhouse statement to perceived gang associate bragging that declarant drove
25
defendants to scene where defendants shot victim]; People v. Cervantes, supra, 118
Cal.App.4th at pp. 167, 169-170, 174-176 [sufficient indicia of trustworthiness in
declarant's statement to friend that either declarant or defendant shot one victim, and both
declarant and defendant shot second victim; although declarant attributed blame to
defendant he "accepted for himself an active role in the crimes"].)
On appeal, we review the trial court's evidentiary ruling for abuse of discretion,
but independently determine the trustworthiness requirements for purposes of the
confrontation clause. (People v. Tran (2013) 215 Cal. App. 4th 1207, 1217-1218; People
v. Cervantes, supra, 118 Cal.App.4th at pp. 174-175; People v. Schmaus, supra, 109
Cal.App.4th at p. 857; see People v. Brown (2003) 31 Cal. 4th 518, 536, 538.)
Here, the record shows Bell stated that he was a shooter during the Velma Terrace
incident, and that defendant and two other Lincoln Park gang members were also
involved. This statement clearly inculpated Bell in the crimes, and did not seek to shift
blame or minimize his culpability. To the contrary, Bell was taking a high level of
responsibility by admitting that he acted in concert with other gang members, including
defendant, and that he was an actual shooter. Also, the fact that Bell made these
statements to a fellow Lincoln Park gang member (Veal) creates significant indicia of
trustworthiness because Bell was speaking to someone he trusted as a gang cohort.
(People v. Cervantes, supra, 118 Cal.App.4th at p. 175 [" 'the most reliable circumstance
is one in which the conversation occurs between friends in a noncoercive setting that
fosters uninhibited disclosures' "].) There are no facts suggesting that Bell had any
reason to be anything but completely truthful when speaking to a fellow gang member
26
about who was involved in the crimes. Further, Bell was talking with Veal about a crime
scenario that involved multiple perpetrators; all of the accomplices he identified were
older members of the gang who could have been at odds with the younger members; and
two of the accomplices he identified (Mason and defendant) were tied to the crime scene
by DNA evidence and (for Mason) by eyewitness identification. Considering the totality
of circumstances supporting that Bell's statement contained no self-serving aspects, was
made in a conversation with a member of the same gang, and was consistent with known
circumstances of the crime scenario, the trial court did not err in finding the entire
statement was trustworthy and properly admissible under the declaration against penal
interest exception.
Finally, the evidence did not have to be excluded merely because the defense
presented evidence from Detective Tefft who, contrary to Detective Barnes's testimony,
stated that Veal indicated that the source of his information concerning defendant's
identity as a perpetrator was from rumors, not from Bell. The jury viewed the video
recording of Detective Barnes's interview with Veal, and Barnes testified that it was clear
that Veal was saying he acquired the information from Bell. (See fn. 5, ante.) This
evidence was sufficient to support that Bell made the statement identifying defendant,
and the court did not abuse its discretion in allowing the jury to consider this
identification evidence and make its own decision concerning its credibility and weight.
B. Sufficiency of the Evidence that Defendant Was a Perpetrator
To support his challenge to the sufficiency of the evidence, defendant argues the
bathroom door DNA evidence carried no evidentiary weight because it could not be
27
definitively proven that his DNA was deposited at the residence at the time of the
criminal events.
In reviewing a challenge to the sufficiency of the evidence, we examine the entire
record in the light most favorable to the judgment to determine whether there is
substantial evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal. 4th 198, 210.) It is the
exclusive province of the jury to determine credibility and to resolve evidentiary conflicts
and inconsistencies, and we presume in support of the judgment the existence of every
fact the jury could reasonably deduce from the evidence. (Ibid.; People v. Young (2005)
34 Cal. 4th 1149, 1175, 1181.) If the circumstances reasonably justify the jury's findings,
reversal is not warranted merely because the circumstances might also be reasonably
reconciled with a contrary finding. (Nelson, supra, at p. 210.)
Although the prosecution experts could not conclusively establish that defendant's
DNA was deposited during the crimes, they opined that several factors supported it had
been deposited at or near the same time as the victim's DNA. They explained that if the
DNA had been deposited at different times, they would have expected to see significant
differences in degradation between the two samples, and there were no such differences.
Further, DNA that is deposited from merely touching an object (as opposed to DNA
deposited from source material such as blood and/or in a moist environment) tends to be
a lesser level DNA, and the experts opined if defendant's DNA had been mere touch
DNA it would have been at a lower level.
28
The experts also stated that because DNA from ZZ located a few inches from the
bloodstain had degraded far more than the bloodstain DNA, this suggested ZZ's DNA
had been deposited at an earlier time than McGhee's and defendant's DNA. Moreover,
prosecution experts noted that touch DNA tends to be deposited when there is frequent
contact with an object, and that a resident of a home tends to leave DNA throughout the
home.
From this evidence, the jury could reasonably consider that if defendant had
deposited his DNA when he visited ZZ eight months or more before the crimes, his DNA
would likely have been similar in degradation to ZZ's DNA, whereas in fact it was very
different from ZZ's and similar to the victim's in degradation. Also, the jury could
deduce that because defendant never lived at the Velma Terrace house it was unlikely
that he had left a large amount of touch DNA deposits at the residence, and it was highly
significant that his DNA happened to show up at the exact spot where there was blood
and the victim's DNA. These inferences support a reasonable conclusion defendant
deposited his DNA on the bathroom door in the moist blood-laden environment that
occurred during and immediately after the violent altercation with victim McGhee.
The fact that it could not be conclusively proven that defendant deposited his DNA
at the time of the offenses did not preclude the jury from considering the prosecution
experts' opinions on the matter as a relevant factor along with all the other evidence and
to decide what weight to give the evidence. (See People v. Jones (2013) 57 Cal. 4th 899,
941-942; People v. Vernon (1979) 89 Cal. App. 3d 853, 869.) Further, this case is not in
the same posture as the cases cited by defendant where the courts found insufficient
29
evidence to support the guilty verdict under circumstances where the sole evidence
against the defendant was fingerprint evidence. Even if in some circumstances it might
be appropriate to require a showing that fingerprints could have been impressed only at
the time of the crime (see, e.g., Mikes v. Borg (9th Cir. 1991) 947 F.2d 353, 356-361), the
circumstances of this case, which include evidence in addition to the DNA evidence, do
not require such a definitive showing to support the jury's verdict.
Moreover, in the California cases cited by defendant, the courts evaluated all the
circumstances to determine whether the fingerprint evidence was sufficient to convict,
and they did not set forth a broad rule that no conviction can be upheld absent a showing
that the fingerprints could have been deposited only at the time of the crime. (See, e.g.,
Birt v. Superior Court (1973) 34 Cal. App. 3d 934, 938 [only guesswork could support that
defendant deposited her fingerprints at the time of crime on easily movable item at
location available to public]; People v. Atwood (1963) 223 Cal. App. 2d 316, 326-327
[noting that fingerprints on area normally inaccessible to others can reasonably support
finding they were deposited at time of burglary]; People v. Redmond (1969) 71 Cal. 2d
745, 756-757; People v. Flores (1943) 58 Cal. App. 2d 764, 769-770; see also People v.
Tuggle (2012) 203 Cal. App. 4th 1071, 1077; People v. Figueroa (1992) 2 Cal. App. 4th
1584, 1587-1588.)
Further, in addition to the DNA evidence, defendant's identification was supported
by Bell's statement explicitly identifying defendant as a perpetrator, strong evidence of
motive, and evidence of a postcrime feud between some of the identified perpetrators. As
reflected in the phone wiretaps, defendant was angry with ZZ's decision to work with
30
Rouse's rival gang faction, and the jury could reasonably deduce defendant decided to
join with fellow Lincoln Park gang members to retaliate against ZZ for his "disrespect"
and to search for money that they believed ZZ had at the Velma Terrace residence. Also,
there was evidence of a shooting-feud after the Velma Terrace crimes; Mason was
identified as a perpetrator in both the Velma Terrace offenses and the shooting feud; and
during the feud Mason accused defendant of being a snitch, threatened defendant, and
shot at defendant's grandmother's home. From this evidence, coupled with the other
evidence pointing to defendant as a Velma Terrace perpetrator, the jury could infer that
Mason was trying to ensure that defendant did not talk to the police about the Velma
Terrace crimes and that defendant had knowledge of the crimes because he was involved
in them.
Considering all this evidence together, there is sufficient evidence to support the
jury's finding that defendant was a perpetrator of the Velma Terrace offenses.
II. Other Challenges
A. Challenge to Admission of Evidence Concerning DNA
on Hallway Doorframe
In addition to the DNA evidence from the bathroom door bloodstain, over defense
objection the prosecution introduced DNA evidence regarding a bloodstain (located
across the hall from the bathroom) that was on the doorframe leading from the hallway to
the living room. DNA testing of this hallway doorframe stain showed a DNA mixture
from at least two people; the predominant DNA matched victim McGhee's DNA; and
there were three other "low level DNA types." Prosecution expert Montpetit testified
31
that, apart from McGhee as the major contributor, he did not feel confident making any
assessment about possible minor contributors because the three low level DNA types
were too few in number and at too low a level. Nevertheless, when the prosecutor asked
him to assume hypothetically that all three of the DNA types were from the same person,
Montpetit testified that if he made this assumption, the testing would show that defendant
was the only person of those tested who had all three of those DNA types, which
suggested that "he could be included" in the sample.
However, Montpetit qualified his answer by stating, "for clarification . . . the fact
that there's three DNA types, I didn't feel confident making an assumption that they were
all from a single person. And that's why I didn't make the comparison." (Italics added.)
On cross-examination, Montpetit reiterated that based on the fact that there were only
three low level DNA types, he could not confidently assume there was only a single
contributor; he could not make this assumption without the detection of more DNA
markers; and hence the DNA sample was "uninterpretable." (Italics added.)
In closing arguments, the prosecutor referred to the hallway doorframe evidence,
arguing that, although it could not be scientifically validated, common sense showed
that—assuming there was only one contributor to the low level DNA—it supported
defendant's guilt because defendant was the only one of the people tested who matched
all three markers on this DNA sample. The prosecution acknowledged to the jury that
"yes, we're making some assumptions and those are up to you to find out if you disagree
with me or are those unreasonable assumptions to make." (Italics added.)
32
Defendant argues the trial court's admission of this testimony was an abuse of
discretion and deprived him of a fair trial. He contends the evidence had little or no
probative value; any minimal probative value was outweighed by the risk of prejudice
and confusion; and admission of the evidence was prejudicial.
We agree the court should have excluded the evidence as irrelevant given
prosecution expert Montpetit's testimony he was not confident accepting the prosecution's
assumption the three low level DNA types were from the same person. Because this
unfounded assumption was a necessary prerequisite for the claim the hallway doorframe
DNA might have been tied to defendant, any inference associating this DNA with
defendant was speculative and irrelevant. (People v. Kraft (2000) 23 Cal. 4th 978, 1035
[evidence that provides merely speculative inferences is not relevant].)
However, on this record there is no basis for reversal. Reversal is not warranted
for the erroneous admission of evidence unless an examination of the entire case shows
the error resulted in a miscarriage of justice; that is, if it is reasonably probable the
defendant would have obtained a more favorable outcome had the error not occurred.
(People v. Nguyen (2013) 212 Cal. App. 4th 1311, 1333-1334.)
Viewing the record as a whole, Montpetit's testimony regarding the DNA evidence
on the hallway doorframe was relatively brief, and he repeatedly and explicitly qualified
his testimony by stating he did not feel confident making any assumption that there was
only a single contributor to the low level DNA sample. The prosecutor acknowledged in
closing arguments that the jury had to find that the assumption of a single contributor was
reasonable, and the jury knew that the prosecution's own expert did not believe this
33
assumption was reasonable. Although the prosecutor urged the jury to find this piece of
evidence supported its case against defendant, we are satisfied the jury recognized that it
was of minimal significance given Montpetit's clear disclaimer of the required
assumption. Under these circumstances, there is no reasonable probability the jury gave
much weight to the evidence and its admission did not rise to the level of a miscarriage of
justice requiring reversal.
Defendant argues the erroneous admission of the evidence also violated his federal
constitutional due process rights, and the error was not harmless beyond a reasonable
doubt. For the reasons stated above, the erroneous admission of the evidence did not rise
to the level of a violation of the federal constitutional right to a fair trial (People v.
Nguyen, supra, 212 Cal.App.4th at p. 1334), and in any event there was no prejudice
even under the stricter harmless beyond a reasonable doubt standard.
B. Challenges to Gang Enhancement
Defendant argues the gang enhancement must be reversed because of instructional
error and insufficiency of the evidence.
1. Absence of Clarifying Instruction Regarding Meaning of "In Association With" Gang
The gang enhancement applies to crimes that are "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 . . . ." (Pen. Code,
§ 186.22, subd. (b)(1).)8 To establish the enhancement, the crime must be gang related.
8 Subsequent unspecified statutory references are to the Penal Code.
34
(People v. Albillar (2010) 51 Cal. 4th 47, 60 (Albillar).) "Not every crime committed by
gang members is related to a gang"; for example, an offense committed by gang members
as part of " 'a frolic and detour unrelated to the gang' " is not gang related. (Id. at pp. 60,
62.) The gang-related requirement may be shown by evidence indicating that several
defendants "came together as gang members" to commit the offense, or that the offense
could benefit the gang by, for example, elevating the gang's or gang members' status or
advancing the gang's activities. (Id. at pp. 62-63, italics omitted; see People v. Gardeley
(1996) 14 Cal. 4th 605, 619.)
Defendant argues the trial court was required to provide the jury with an
instruction concerning the meaning of "in association with" a gang because this phrase
has a technical legal meaning. The trial court must sua sponte instruct on the general
principles of law governing the case which are necessary for the jury's understanding of
the case. (People v. Butler (2010) 187 Cal. App. 4th 998, 1013.) The language of a statute
defining a crime is generally a sufficient basis for an instruction. (People v. Smithey
(1999) 20 Cal. 4th 936, 980-981.) If the legal meaning of a statutory term differs from its
meaning in " 'common parlance,' " the trial court should provide clarifying instructions.
(Id. at p. 981.)
To support his position that "in association with" has a technical legal meaning in
the gang enhancement statute, defendant extracts a statement from Albillar where the
court concluded there was substantial evidence to support that three gang members
committed a sexual attack on a young girl in association with their gang because the
defendants "relied on their common gang membership and the apparatus of the gang in
35
committing the sex offenses against" the victim. (Albillar, supra, 51 Cal.4th at p. 60.)
Contrary to defendant's claim, Albillar does not state that "in association with" is a
technical phrase meaning reliance on common gang membership and the gang apparatus.
Albillar's statement in this regard was made in the context of discussing the sufficiency of
the evidence, not the meaning of the phrase for instructional purposes. The Albillar court
found sufficient evidence to establish the association component based on a variety of
factors, including expert testimony concerning the advantages of gang members
committing crimes together rather than individually and the specific facts of the case
showing the gang members helped each other complete the offenses and gang associates
helped them avoid detection. (Id. at pp. 61-62.)
When reaching this conclusion, Albillar did not suggest that it was setting forth a
definition of acting in association with a gang that is distinct from its commonly
understood meaning. Rather, the court was evaluating whether the evidence could
support that the defendants "came together as gang members" to attack the victim rather
than engaging in a " 'frolic and detour unrelated to the gang.' " (Albillar, supra, 51
Cal.4th at pp. 61-62.) As defined in a standard dictionary, to "associate" means "to join
as a partner, friend, or companion" or "to come or be together as partners, friends, or
companions." (Merriam-Webster's 10th Collegiate Dictionary (2002), p. 70.) Based on
its commonly understood meaning, the jurors would have known that acting "in
association with" a gang meant that the defendants must have joined together as gang
members, not merely as individuals who were engaging in conduct unrelated to their
gang.
36
Defendant's citation to the dissenting opinion in Albillar likewise does not
establish that "in association with" has a technical meaning requiring sua sponte
clarification. Disagreeing with the majority's conclusion concerning the sufficiency of
the evidence, the dissent reasoned that acting in association with a gang meant acting
with the gang as an organization, not merely acting in association with gang members,
and there was no evidence that the gang as an organization was involved in or aware of
the crimes until after they were committed and, to the contrary, the evidence showed the
gang disapproved of sexual assaults. (Albillar, supra, 51 Cal.4th at pp. 72-73 (dis. opn.
of Werdergar, J.).) To the extent the dissent characterized the majority as having defined
"in association with" as meaning reliance on common gang membership and the gang
apparatus, this was in the context of discussing its disagreement with the majority's
definition which focused on gang members associating with one another rather than
associating with the gang as an organization. (Ibid.) Even assuming the dissent viewed
the majority opinion as setting forth a definition of "in association with" that should have
been provided to the jury, there is nothing in the majority opinion that indicates this was
required.
Finally, we are not persuaded by defendant's contention that reversal of the gang
enhancements is required because the prosecution gang expert's testimony and the
prosecutor's closing argument suggested that gang members acting together automatically
shows the crimes were committed "in association with" a gang. Assuming (without
deciding) the testimony or argument might have misled the jury, there was no prejudice.
Even applying the stricter standard applicable to federal constitutional error, there is no
37
reasonable possibility the outcome might have been more favorable to defendant had the
association element been clarified for the jury. (See People v. Sengpadychith (2001) 26
Cal. 4th 316, 320, 326-327.) As we shall delineate below when addressing defendant's
challenge to the sufficiency of the evidence to support the gang enhancements, there was
compelling evidence that the criminal activity in this case was gang related. Under these
circumstances, there is no reasonable possibility the jurors might have found the offenses
were not committed in association with the gang or for the benefit of the gang even if
they had been told the perpetrators' shared gang membership does not automatically
establish the gang association component of the enhancement.
2. Sufficiency of Evidence for Gang Enhancement
Defendant argues there was insufficient evidence to show that the crimes were
committed for the benefit of, at the direction of, or in association with a gang, rather than
to advance the personal interests of a particular faction of the gang. The contention is
unavailing.
The record fully supports the jury's finding that the offenses were gang related.
The jury could reasonably find that the offenses were committed by older Lincoln Park
gang members who were angry at a younger Lincoln Park gang member who was not
giving back money to the gang from his drug dealing and not following the dictates of the
older gang members. Prosecution gang experts testified that gangs survive by having
members give money back to the gang; it is expected that members who earn money will
use that money to help support other gang members; and when a gang member disobeys
these gang rules, this is an act of disrespect that must be sanctioned. The jury was
38
presented with evidence supporting that Lincoln Park gang member ZZ was earning large
sums of money as a drug dealer; he was not paying money back to the gang; he shot at
one of the older gang members (Bell) who had ordered him to provide drugs; Bell in turn
shot ZZ's father; ZZ disobeyed the directions of another older gang member (defendant)
on how to deal with a rival faction in the gang; and a group of gang members, including
defendant and Bell, descended upon a house associated with ZZ in an attempt to find a
large amount of money they thought ZZ had placed there and when they could not find it
they killed ZZ's brother and the brother's girlfriend.
From this evidence, the jury could reasonably find the events at the Velma Terrace
house were designed to enforce the gang rules and protect the interests of the gang by
keeping its members under control and compliant with the wealth-sharing requirement,
and to thereby ensure the survival of the gang as an intact group capable of carrying out
its criminal activities.
C. Challenge to Expert Opinion Testimony on Gang Association Element that Assumed
Defendant Was a Perpetrator
Defendant argues that through trial court error and prosecutorial misconduct, he
was deprived of his jury trial right when prosecution expert Detective Rudy Castro
opined that the crimes were committed in association with a gang because they were
committed by defendant, Mason, and Bell. He asserts this testimony identifying him as a
perpetrator equated with the provision of a directed verdict to the jury.
During examination by the prosecutor, Detective Castro testified that he was not
involved in the investigation of the Velma Terra crimes, but he reviewed the information
39
gathered by Detective Barnes, including about who "might be involved." (Italics added.)
After eliciting this testimony, the prosecutor asked Castro if he had an opinion whether
the crimes were committed in association with the Lincoln Park gang. Castro responded
yes, explaining that the basis for his opinion was the "association that [defendant], who
he was with, with . . . Michael Mason and Terrill Bell." (Italics added.) Defense counsel
objected that there was no foundation showing a connection between the three
individuals, and the court overruled the objection.
Assuming the trial court should have sustained defense counsel's objection to the
manner in which the expert responded to the question, there was no prejudice.
Immediately after the trial court overruled the objection, the prosecutor asked the expert:
"If I can sort of ask you another question. [¶] Do you believe that there were—whether
or not individuals—because obviously . . . you weren't present there . . . [¶] . . . [¶] . . . Is
your opinion based upon the review of what occurred at the Velma Terrace home in
2005, is your opinion that those crimes were committed by one or more Lincoln Street
gang members?" (Italics added.) The expert responded "Yes," and the prosecutor then
asked, "And is that the basis of your giving us the opinion that . . . those crimes were
done in association with the Lincoln Park street gang?" The expert again responded
"Yes."
It is apparent from this line of questioning that once defense counsel made his
objection, the prosecutor directed the questioning in a manner that did not name
defendant as one of the perpetrators but rather generally referred to Lincoln Park gang
members. Also, at the inception of the questioning, the prosecutor's question and the
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expert's testimony used language referring to who might be involved, not who was
proven to be involved. Further, there is no doubt the jury understood from the manner in
which the case was presented to them—including the witness examination and closing
arguments—that the primary dispute at trial was whether the prosecution had proven
beyond a reasonable doubt that defendant was one of the perpetrators.
On this record, there is no reasonable possibility the jury construed the expert's
single statement referring to defendant as one of the perpetrators as the equivalent of a
statement telling them how to decide the pivotal issue of identity. We assume jurors are
reasonably intelligent (People v. Butler, supra, 187 Cal.App.4th at p. 1013), and
reasonably intelligent jurors would have understood the expert was saying that if they
found defendant and other Lincoln Park gang members were the perpetrators, in the
expert's view this was a factor supporting the association component of the alleged gang
enhancement.
D. Cumulative Error
Defendant argues the cumulative effect of the errors deprived him of a fair trial
and requires reversal. Even viewed cumulatively, none of the errors that we have
identified rises to this level. The actual or possible errors included the admission of the
DNA doorframe evidence that had no relevancy because of the unfounded assumption
that it came from a single contributor; the statements by a prosecution expert and the
prosecutor suggesting that multiple gang members' commission of a crime together
automatically establishes the association component for the gang enhancement; and the
prosecution expert's brief reference to defendant as a perpetrator when testifying
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regarding this association component. Viewing the trial as a whole, these errors were
minor. For the reasons stated in our analysis of each of these matters, there is no
reasonable possibility they affected the jury's verdict even when considered together.
III. Challenge to Special Circumstances
Defendant challenges the constitutionality of three special circumstances found
true in his case: (1) the multiple murder special circumstance, (2) the prior murder
special circumstance, and (3) the felony murder special circumstance.
A. Multiple Murder and Prior Murder Conviction Special Circumstances
Section 190 permits a sentence of death or life without the possibility of parole if
the defendant is convicted of first degree murder in the current proceeding, and the
defendant committed more than one first or second degree murder in the current
proceeding (§ 190.2, subd. (a)(3)) or if the defendant has been previously convicted of
first or second degree murder (§ 190.2, subd. (a)(2)).
Raising a substantive due process claim, defendant contends these special
circumstances are overbroad and create an irrational sentencing scheme because they
focus on the results of the defendant's actions (multiple deaths) rather than on the
defendant's mental state, and thereby apply to a broad class of persons of many different
levels of culpability.
The California Supreme Court has repeatedly rejected challenges to the
constitutionality of the multiple murder and prior murder conviction special
circumstances. (People v. Thomas (2012) 53 Cal. 4th 771, 818; People v. Sapp (2003) 31
Cal. 4th 240, 286-287; People v. Boyette (2002) 29 Cal. 4th 381, 440; People v. Lucero
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(2000) 23 Cal. 4th 692, 740-741; People v. Gurule (2002) 28 Cal. 4th 557, 637.) In these
decisions, the court has explicitly rejected the claims made by defendant. (See, e.g.,
People v. Sapp, supra, at p. 287; People v. Boyette, supra, at p. 440; People v. Lucero,
supra, at p. 740.) As stated in Lucero: "[T]he multiple-murder special circumstance
focuses on a narrow group of killers: only those who have murdered more than one
person. . . . One who is mentally prepared to commit repeated acts of murder, or to
commit a murderous act that results in the death of two or more persons, is more
dangerous to society and more deserving of the ultimate punishment than one who has
killed once." (Lucero, supra, at p. 740.)
In support of his position, defendant cites reasoning in Sapp, which states that the
multiple murder special circumstance narrows the class of death-eligible first degree
murderers to "those who have killed and killed again . . . ." (People v. Sapp, supra, 31
Cal.4th at p. 287.) He posits that the multiple/prior murder special circumstances can be
properly imposed only in cases where the defendant has committed multiple acts of
murder, and not as here, where the murders arose from a single incident. This contention
would typically be inapplicable to the prior murder conviction special circumstance.
Further, our high court has upheld the constitutionality of the multiple murder special
circumstance in cases where the murders all occurred during a single transaction.
(People v. Boyette, supra, 29 Cal.4th at pp. 404, 440 ["categorizing as especially
deserving of the ultimate penalty those offenders who kill two or more victims in one
criminal event is not arbitrary, unfair or irrational," italics added]; see, e.g., People v.
Souza (2012) 54 Cal. 4th 90, 102, 141 [multiple victims shot at apartment]; People v.
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Lucero, supra, 23 Cal.4th at pp. 708-710.) Moreover, when, as here, the murder victims
were killed by distinct acts of shooting, the defendant has, indeed, killed and killed again,
albeit during the same incident.
Defendant's constitutional challenge to the multiple murder and prior murder
conviction special circumstances is unavailing.
B. Felony Murder Special Circumstance
Defendant argues the felony murder special circumstance is unconstitutionally
vague because it fails to distinguish between the offense of first degree murder based on a
murder committed during the commission or attempted commission of a statutorily-
enumerated felony (§ 189), and the special circumstance providing for a sentence of
death or life without the possibility of parole when the murder is committed during the
commission or attempted commission of a statutorily-enumerated felony. (§ 190.2, subd.
(a)(17).)
Defendant recognizes that we have rejected a constitutional vagueness challenge
to the felony murder special circumstance in People v. Andreasen (2013) 214
Cal. App. 4th 70, 79-82, but contends our decision overlooked relevant judicial authority.
In Andreasen, we evaluated the relevant statutes and concluded they provided notice that
if the defendant commits a specified felony and kills during the felony, he could be
subjected to a sentence of 25 years to life (felony murder) or life without parole or death
(special circumstance felony murder), and the fact that the prosecution has discretion to
select which punishment it will seek does not make the statute unconstitutionally vague
or arbitrary. (Id. at p. 80.) We also held that assuming constitutional due process
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requires a distinction between felony murder and the felony murder special circumstance,
this distinction exists because the special circumstance requires a distinct showing that
the felony was not merely incidental to the murder; i.e., that the defendant had an
independent or concurrent intent to commit the felony and did not commit the felony for
the sole purpose of effectuating the killing. (Id. at pp. 80-82; compare CALCRIM No.
730 [felony-murder special circumstance requires proof that defendant intended to
commit felony independent of the killing, and it is not proven if defendant only intended
to commit murder and felony was merely part of or incidental to murder] with
CALCRIM No. 540B [felony murder, with no mention of felonious intent independent of
killing].)
Defendant argues our holding in Andreasen that there is a distinction between
felony murder and the felony murder special circumstance fails to recognize judicial
decisions stating that felony murder requires that the killing occur during the commission
of the felony. (See People v. Thompson (2010) 49 Cal. 4th 79, 115; People v. Huynh
(2012) 212 Cal. App. 4th 285, 307-308 [killing and felony must be part of one continuous
transaction].) To the contrary, Andreasen recognizes that both felony murder and the
felony murder special circumstance require a killing that occurs during the commission of
a felony, and then explains that for felony murder there is no need to " 'plumb the parties'
peculiar intent' " apart from the intent to commit the felony, whereas the felony murder
special circumstance requires an additional showing that the defendant had a stand-alone
purpose for committing the felony rather than merely using the felony as a means to carry
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out the killing. (People v. Andreasen, supra, 214 Cal.App.4th at pp. 80-81 [e.g., special
circumstance inapplicable if defendant had no purpose for arson apart from murder].)
For the reasons stated in Andreasen, defendant's constitutional challenge to the
felony murder special circumstance fails.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
MCINTYRE, J.
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