People v. Anderson CA2/2 ( 2015 )

Filed 7/22/15 P. v. Anderson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B251527
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA368517)
v.
GETZ ANDERSON et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County.
Stephen A. Marcus, Judge. Affirmed.
Charolette E. Costan, under appointment by the Court of Appeal, for Defendant
and Appellant Getz Anderson.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and
Appellant Allen Cox.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Getz Anderson (Anderson) and Allen Cox (Cox)
(collectively defendants) appeal from judgments entered following their convictions of
attempted murder and other felony offenses. Each defendant generally joins in each
other’s arguments, and both defendants challenge the denial of Wheeler/Batson motions.1
Cox separately contends: that the prosecution’s failure to identify the true name of
attempted murder victim “John Doe” resulted in a potential double jeopardy violation and
a violation of Penal Code section 954;2 that the trial court’s failure to instruct the jury that
it must unanimously agree on the identity of John Doe violated his right to due process;
that the trial court erred in giving a “kill zone” jury instruction; and that jurors engaged in
misconduct in the first trial by discussing their anxiety about the length of the trial.
Anderson contends: that the trial court erred to his prejudice by instructing the
jury that it could base liability on the uncharged, nonexistent crime of conspiracy to
commit attempted murder; that the jury’s finding that the crimes were gang related was
not supported by substantial evidence; that the trial court erred in denying his motion for
new trial; and that reversal is required due to asserted cumulative errors.
Finding no merit to defendants’ contentions, we affirm the judgments.
BACKGROUND
Procedural history
The original six-count information charged defendants and codefendant Trevon
Jermaine Brown (Brown) in count 1 with the willful, deliberate, and premeditated
attempted murder of Steve Farias (Farias), in violation of sections 664 and 187,
subdivision (a), and in count 6, with the willful, deliberate, and premeditated attempted
murder of “John Doe,” a rival gang member. Defendants were also charged in count 5
with shooting at an inhabited dwelling in violation of section 246. Cox alone was
charged in count 2 with violation of Vehicle Code section 10851, subdivision (a), and in
1 See People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky
(1986) 476 U.S. 79 (Batson).
2 All further statutory references are to the Penal Code, unless otherwise indicated.
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count 3, with possession of a firearm by a felon in violation of section 12021, subdivision
(a)(1). Anderson was charged in count 4 with possession of an assault weapon in
violation of section 12280, subdivision (b).
The information also specially alleged as to counts 1 and 5, that Anderson
personally inflicted great bodily injury on Farias. As to all counts, it was alleged
pursuant to section 186.22, subdivision (b), that the offenses were committed for the
benefit of, at the direction of, or in association with a criminal street gang, with the
specific intent to promote, further and assist in criminal conduct by gang members. It
was further alleged that Anderson and a principal personally used a firearm within the
meaning of section 12022.53, subdivisions (b) and (e), and that Anderson and a principal
personally and intentionally discharged a firearm within the meaning of section
12022.53, subdivisions (c) and (e)(1), causing great bodily injury to Farias, within the
meaning of section 12022.53, subdivision (d).
At defendants’ first jury trial in 2011, the jury found Cox guilty of possession of a
firearm by a felon (count 3), and found Anderson guilty of possession of an assault
weapon (count 4). The jury found true the gang allegation attached to both counts.
However, the jury was unable to reach verdicts as to the remaining counts and the trial
court declared a mistrial. The court granted the prosecution’s motion to dismiss count 2,
and ordered a retrial on counts 1, 5, and 6.3
The second jury trial commenced in July 2013 and resulted in guilty verdicts
against defendants on the remaining three counts. As to Cox, the jury found true all the
special allegations. As to Anderson, the jury found true the premeditation and gang
allegations, as well as the firearm allegations regarding a principal, and the allegation that
3 Brown did not participate in the second trial and is not a party to this appeal. The
information was amended to renumber the counts. Count 1 (attempted murder) remained
the same; shooting at an inhabited dwelling, originally count 5, became count 2; and the
second attempted murder count (originally count 6) became count 3, resulting in two
count 3’s. Although the court used the amended count numbers in its oral
pronouncement of sentence, the clerk kept the original count numbers for the abstracts of
judgment.
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he personally used a firearm. The jury rejected the allegations that Anderson personally
and intentionally discharged a firearm causing great bodily injury.
Both defendants were sentenced on September 5, 2013. Anderson was sentenced
to two consecutive life terms in prison for the attempted murders, both with consecutive
firearm enhancements of 25 years to life. Remaining firearm enhancements were stayed
pursuant to section 12022.53, subdivision (f). The trial court imposed a term of 15 years
to life plus a 10-year firearm enhancement as to the original count 5 (violation of section
246), and stayed the term under section 654. As to count 4, the court imposed the high
term of three years with a four-year gang enhancement, to run currently with the terms
imposed for the attempted murders. The court imposed mandatory fines and fees,
ordered print impressions and DNA samples, terminated probation in another case, and
granted presentence custody credit.
Cox also received two consecutive life terms for the attempted murders, plus a
consecutive firearm enhancement of 25 years to life, with the remaining firearm
enhancements stayed. As to the original count 5, the court imposed a term of 15 years to
life and stayed the term under section 654. As to the original count 3, felon in possession
of a firearm, the court imposed the high term of three years plus a gang enhancement of
four years, to run concurrently with the terms imposed for the attempted murder counts.
The court imposed mandatory fines and fees, ordered print impressions and DNA
samples, and awarded Cox presentence custody credit. Probation was terminated in
Cox’s two other cases.
Both defendants filed timely notices of appeal.
Prosecution evidence
The shooting and investigation
Around midnight on February 26, 2010, Farias was visiting at a friend’s home
near the intersection of 43rd Place and San Pedro Street. Farias testified that he was with
Jerome Stevens (Stevens) on his porch with their friends Tradeon, “Tito,” and “Chato,”
when a blue Chrysler slowly passed by. About 10 to 20 minutes later, two African-
American men appeared on foot near the house. One of the two men took a firearm
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resembling an Uzi from his waist, loaded the gun with an ammunition clip, took two
steps toward Farias and his friends who were within two or three feet of him, and fired
the gun in their direction. As Farias ran to the back of the house he was struck in the leg
by a bullet.
Farias told the police that the driver’s side windows of the Chrysler were down
when it passed the house and he was able to identify Cox as the driver and Anderson as
the shooter from photographic line-up. Farias also told officers that one of the men
yelled out something like, “Fuck these fools,” just before the shooting began. Farias was
a reluctant witness, claimed not to remember many details, and denied that he heard
anyone shout gang names. Farias also denied that he or any of his four friends belonged
to a gang.
Stevens’s stepfather, Kenneth Murphy (Murphy), testified that he was in his living
room while Stevens was outside with his friends, when he heard five or six gunshots.
When he saw Farias come in through the back door with a leg wound, he called 911.
When Murphy later inspected his house, he found two new bullet holes. One hole was
over the trash area and the other was in the wall outside a bedroom. Los Angeles Police
Officer Kevin Raines inspected the area after the shooting and observed seven bullet
strikes in and around Stevens’s house.
Officer Juan Arenas was on patrol with his partner, Officer Gerard Reygosa in the
neighborhood of the shooting, when just after midnight he heard approximately five or
six gunshots in rapid succession. As the officers sped toward the sound, they saw a blue
Chrysler with no license plate. They also received a radio call regarding a shooting in the
area. The officers pursued the blue Chrysler, which accelerated when the patrol car’s
lights and siren were activated. Soon the Chrysler slowed down and men got out and
fled. The front seat occupant wore a black sweatshirt, and the other man, later identified
as Brown, wore a checkered shirt. As Officer Arenas gave chase he heard something
metallic fall on a hard surface near the fleeing suspect in the black sweatshirt, whom he
later identified as Anderson. The Chrysler had collided with a pole and come to a stop.
It had only paper dealer license plates.
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Officer Arenas caught up with Brown, took him into custody, and returned to the
area and found a high capacity firearm magazine containing five nine-millimeter rounds.
The police set up a perimeter and Officer Reygosa recovered a handgun within the
boundary. Officers also found a baseball cap and a black sweatshirt that had been
discarded behind a residence on 48th Street.
Officer Raygosa testified that he saw four men get out of the Chrysler and flee. A
handgun fell from the driver’s midsection onto the street and Officer Raygosa later
recovered a Glock 26 semiautomatic handgun with an empty magazine in the same area.
As he ran, the driver was wearing the same black sweatshirt that Officer Arenas
recovered later in a nearby backyard. Officer Raygosa identified Brown as the suspect
who exited the Chrysler from passenger side. After Brown was detained police found no
weapons, but recovered a USB flash drive from his person.
A neighborhood resident reported seeing a man hide under a car and then run
away as he discarded the dark-colored sweatshirt he wore over a white T-shirt. Officers
maintaining the perimeter that night searched the area for clothing and checked all
vehicles leaving the perimeter. A second black sweatshirt was found near a trash can in
the area. Cox was found hiding in the trunk of a car leaving the area, and Anderson was
found in the back seat of another car. Cox was wearing a white shirt when he was taken
into custody.
Forensic analysis revealed that Cox was a possible contributor to the DNA mixture
recovered from the Glock handgun, one black sweatshirt, and the baseball cap found
within the perimeter. Anderson was a possible contributor to the DNA recovered from
the other black sweatshirt. Several fingerprints found outside the front passenger window
of the Chrysler were determined to belong to Cox. A firearms expert test fired the Glock
handgun and concluded that it had fired the four nine-millimeter casings found at the
scene of the shooting. The expert also examined the recovered assault pistol, and
testified that it was an Interdynamic semiautomatic assault pistol, which resembles an Uzi
and a MAC 11 assault weapon. The gun was operational but had jammed with a bullet in
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the chamber, possibly due to the use of a large capacity magazine which was not
designed for that firearm.
Detective Eric Rose testified that after Anderson and Cox were arrested he
arranged to have them placed in the same holding cell where officers monitored and
recorded their conversations and telephone calls. Excerpts of the recordings were played
for the jury. Cox told Anderson in one conversation that that police had the “burner”
(slang for gun) and in another conversation Anderson said that they had the “Glock.”
In a telephone conversation Anderson asked “Bay-Bo” to pick up his “macaroni
jeans” that was in a shopping cart behind “Lil Rag’s” house. Detective Rose testified that
“macaroni” referred to a “MAC 11” type assault weapon, and that Lil’ Rag was Richard
Beckner (Beckner), a person who had admitted several times to the detective that he was
a member of the 5-3 Avalon Gangster Crip gang.4 The detective also believed that
Anderson and Cox were members of the same gang. Thus, when Detective Rose heard
mention of the shopping cart in the jailhouse recordings, he went to Beckner’s home.
There he found a shopping cart on the sidewalk. After looking under several black trash
bags an assault weapon was found. The weapon appeared to be jammed with a nine-
millimeter bullet.
In other excerpts from the recordings Anderson expressed the hope that the police
had not found “that mother fuckin’ jacket” and that his friends would say he was with
them during the shooting, because “we need, an alibi, bad.” Cox described how he saw
Anderson attempt to “shoot that motherfucker.” Cox also spoke about trying to drive
away, seeing the police, and then running and hiding.
Defendants’ gang membership
While conducting pedestrian stops during a narcotics and gang suppression
assignment on February 4, 2010, Officer John Carlyle spoke to Brown in the South Park
4 Throughout the trial, various witnesses referred to the same gang as the Five Tres
Avalon Gangster Crip gang, the Five Trey Avalon Gangster Crip gang, the Avalon
Gangster Crip gang, and more simply the Avalon gang. In referring to the full name of
the gang, we use the most commonly used spelling in the record, which was Five Tres
Avalon Gangster Crip gang.
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neighborhood of Los Angeles. Officer Carlyle testified that Brown acknowledged being
a member of the Five Tres Avalon Gangster Crip gang for two years.
Officer Joseph Fransen, testified that in 2009 and 2010, he was a gang officer
assigned to monitor gang activity in the South Park neighborhood, which was the
territory of the Five Tres Avalon Gangster Crip gang. In the course of his work he
contacted approximately 50 members of the gang and developed a rapport with many of
them. During Officer Fransen’s several encounters with Cox, the latter admitted his
membership in the Five Tres Avalon Gangster Crip gang. One such encounter occurred
in October 2009, when Cox not only admitted being a member of the gang but claimed
the moniker “Low Key.”5 On one occasion Cox was wearing a baseball cap embroidered
with the “A” logo of the Atlanta Braves, meant to signify Avalon. Officer Fransen also
observed gang tattoos on Cox, including an “A” with a halo over it, and the numbers five
and three in roman numerals on the back of his arms. At times, Officer Fransen
encountered Cox in the company of other gang members, including Devaughn Banner
and Cedrick Thomson, both self-admitted members of the Five Tres Avalon Gangster
Crips, and Cox’s brother, Anthony Cox (Anthony). Officer Fransen explained that in
gang culture, publicly associating with other known members of the same gang within
their gang’s territory was a sign of allegiance to the gang.
Officer Fransen also had contacts with Anderson in the company of other gang
members in the South Park area during 2009 and 2010. When he encountered Anderson
in South Park in October 2009, Cox was not there, but Banner was, the same member of
the Five Tres Avalon Gangster Crip gang he had found in Cox’s company. Anderson
admitted being a member of the Five Tres Avalon Gangster Crip gang, and gave his
moniker as “Baby Chaotic.” Officer Fransen recalled Anderson wearing a coat with “SP”
for South Park embroidered on it, but did not recall seeing any gang tattoos.
5 Officer Fransen explained that a moniker was a nickname used within a gang
member’s gang. In gang culture a moniker signified allegiance to the gang and
acceptance by fellow gang members. As far as he was aware, people who were not
members of the gang were not allowed to have gang monikers.
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Gang expert
Officer Jesse Drenckhahn testified as the prosecution’s gang expert. Officer
Drenckhahn had gained knowledge of the Five Tres Avalon Gangster Crip gang while
assigned to patrol in 2007, and while assigned to the Newton Division Gang Enforcement
Unit from October 2008 through October 2010. During that period he had significant
contact with the gang. His responsibilities included gathering intelligence, identifying
and documenting gang members, staying current on trends and tattoos, documenting
graffiti, and photographing members. In February 2010, there were an estimated 100
members of the gang, and Officer Drenckhahn had personally contacted about 60 of
them.
Many criminal street gangs operated in the Newton Division. The Five Tres
Avalon Gangster Crip gang feuded with Blood gangs and several of the other Crip gangs
in the area. The shooting in this case occurred within the territory claimed by the Four
Deuce Four Tres 48 Gangster Crips, the primary rivals of the Five Tres Avalon Gangster
Crip gang. The crime scene was adjacent to the Gilbert Lindsey Park, where the Four
Duce Four Tres 48 Gangster Crip gang members were known to congregate. In Officer
Drenckhahn’s experience, it would demonstrate disrespect for a gang member to venture
into the territory of a rival gang, and even innocent entries into the area could result in a
dangerous confrontation.
Officer Drenckhahn explained that the notion of respect was very important to
gangs and had a special meaning in gang culture, where respect was equated with fear
and intimidation earned through criminal activity. To be disrespected made a gang
appear weak, which would damage the reputation of the gang and its members. Thus, to
earn respect, gangs engaged in aggressive, violent, and intimidating activities that spread
fear in the community; the more heinous the crime, the greater the respect earned for the
gang and the member who committed it. The resulting benefit to the gang was the
reluctance of residents to cooperate with police investigations, testify, or identify gang
members due to fear of retaliation, thus allowing gang members to engage in narcotic
sales and commit robberies and other crimes openly. An individual gang member
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generally gained the respect of his gang by committing violent crimes, such as shooting
and assaulting rival gang members, thereby demonstrating allegiance to the gang and
fellow gang members.
The primary activities of the Five Tres Avalon Gangster Crip gang were assault,
robbery, narcotic sales, and illegal firearm possession. Officer Drenckhahn presented
certified records of the convictions of Devaughn Banner, for assault with a deadly
weapon in December 2009, and Jerry Green, found to be a felon in possession of a
firearm in January 2010. Both Banner and Green were admitted members of the Five
Tres Avalon Gangster Crip gang.
Officer Drenckhahn described the Five Tres Avalon Gangster Crip gang’s
common signs or symbols which were frequently found in graffiti and tattoos, including
the number 53, the abbreviation “AGC” for Avalon Gangster Crip, “East Side” for East
Side Crips, and South Park. More subtle tattoos included dice displaying a five and a
three and a street sign for 53rd Street. Five Tres Avalon Gangster Crip gang members
often wore clothing identifying them as members of the gang, such as baseball caps with
the logos of the Los Angeles Angels of Anaheim or Oakland A’s. Community residents
learned to recognize members of the gang by the areas where they congregated, their
clothing, their use of the number 53, the “A” hats, and the color blue.
Officer Drenckhahn opined that Brown, Anderson, and Cox were members of the
Five Tres Avalon Gangster Crip gang, and he explained the factual basis for his opinions.
Officer Drenckhahn described his contact with Brown in February 2010 in South Park,
the “epicenter” of the gang’s territory, when Brown admitted to Officer Drenckhahn that
he was a member of the gang and said his moniker was “Baby Tres.” Brown was
wearing a blue belt with a chrome belt buckle bearing the letter A, and one of his
companions wore a baseball cap with an A on it. He was in the company of John
Edwards, Lou Dixon, James Thomas, and Cox’s brother Anthony, all members of the
Five Tres Avalon Gangster Crip gang. In addition, Officer Drenckhahn reviewed the
flash drive found on Brown. The drive contained items with gang significance: the
Angel’s “A” logo; the Oakland A’s logo; an image from the South Park television show;
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and photographs of Anthony and others making hand signs used by the Five Tres Avalon
Gangster Crip gang. It also contained a party flyer with the word “kiccbacc,” which
demonstrated the Crip gang’s avoidance of placing a C and K side by side, because that
could mean Crip Killer.
Officer Drenckhahn based his opinion that Anderson was a member of the gang on
past law enforcement contacts with him, his observation of Anderson’s tattoos and
clothing, and Officer Fransen’s testimony. Officer Drenckhahn testified that he had
known Anderson since late 2007 or early 2008, and had seen or talked to him personally
at least 20 times in Five Tres Avalon Gangster Crip territory. On May 3, 2009, Officer
Drenckhahn observed Anderson at the gang’s 2009 annual “Hood Day” gathering at
South Park, where participants typically wore their gang colors. Anderson was wearing a
jersey with his moniker “Baby Chaotic” on it. Another encounter with Anderson was in
April 2009 while Anderson was in the company of other members of the Five Tres
Avalon Gangster Crip gang. In June 2009, another officer documented his contact with
Anderson in South Park with other members of the gang, including the same Jerry Green
whose record of conviction was admitted to show that gang engaged in a pattern of
criminal conduct. Officer Drenckhahn identified photographs of Anderson’s tattoos of a
5 and 3, and “South Park” and he explained their gang significance.
Officer Drenckhahn testified that he had come into contact with Cox about 20
times, including the day of the 2009 Hood Day celebration, where Cox was in the
company of Green, Banner, and other gang members. Officer Drenckhahn identified a
photograph from that day in which most of the people depicted were wearing blue. Cox
and others were shown displaying a gang sign in the photograph, and Banner was
wearing a shirt with the moniker “Baby Shady.” Prior to that, in October 2008, Cox
admitted to Officer Drenckhahn that he was a member of the Five Tres Avalon Gangster
Crip gang and said his moniker was “Little Blue.” At that time Cox was with Banner and
other gang members who Officer Drenckhahn saw with Anderson in April 2009. In
February 2008, Officer Drenckhahn encountered Cox in the company of Green in South
Park. Cox was wearing a blue shirt, blue pants, and blue shoes. He admitted his
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membership in the Five Tres Avalon Gangster Crip gang and that his moniker was Low
Key. Officer Drenckhahn identified photographs of Cox’s gang related tattoos, including
“A5AL3N” which represented the word Avalon, but with the numbers 5 and 3 replacing
two of the letters, a Roman numeral V on right forearm and a III on the left forearm. Cox
and his brother Anthony both had the letters “FTAG” tattooed on them, which stood for
Five Trey Avalon Gangster.
Officer Drenckhahn explained that in gang culture a “mission” meant committing
crimes on behalf of the gang, usually with other gang members. Gang members would
typically anticipate a confrontation during missions into rival territory, and thus would
bring along fellow gang members for support, and confidence, and to verify the mission.
Gang members on a mission in rival territory typically either targeted known rivals or
went to areas where rivals were known to congregate, and then shot indiscriminately at
anyone fitting the description of a rival gang member. Boasting about missions
enhanced the member’s reputation and standing within the gang. Each member would
have his own responsibility on a mission, such as driving the getaway car, doing the
shooting, or being the lookout, and each member should know his role. Each participant
would be expected to back up the others and to protect them to the best of his ability.
Further, if caught, gang members would be expected to obstruct the police investigation
in order to avoid getting the reputation as a “snitch.” Officer Drenckhahn explained that
snitches would be subject to discipline within the gang for cooperating with law
enforcement which could include being shot or killed.
The prosecutor posed a hypothetical question in which three, possibly four
members of the Five Tres Avalon Gangster Crip gang traveled into the territory of the
Four Tres Avalon Gangster Crip gang, one in possession of an assault weapon, and the
other with a nine-millimeter weapon; they drove slowly by a house at 43rd and San Pedro
Streets, and 20 minutes later, walk up to the house, say something derogatory to young
men in front, such as, “Fuck these fools,” when the person with the assault weapon points
it at one of the young men and fires multiple shots, before getting back into the car with
the other members of Five Tres Avalon Gangster Crip gang and speeding away. Officer
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Drenckhahn was of the opinion that the hypothetical crime was gang related, as the
perpetrators went to an area where rival gang members were known to congregate,
showed disrespect, shot at them, and then fled. It was a classic drive-by or walk-up
mission type shooting.
Officer Drenckhahn was also of the opinion that such a shooting was committed
for the benefit of a criminal street gang, because it would enhance the gang’s reputation
and earn respect for both the perpetrators and the gang in the community, by showing that
the gang was willing to commit egregious acts of violence. The gang would benefit by
the fear created in the community as word of it spread, leading to reluctance to cooperate
with the police and an unwillingness to identify gang members involved in the crime.
Officer Drenckhahn’s opinion would not change if the gang members did not call out the
name of the gang, as gang members may or may not announce the name of their gang
while committing a shooting. He had experience with gang crimes committed both ways.
Defense evidence
Shandrea Melton (Melton) testified that in February 2010 she lived with
Anderson, and on February 25, Anderson was home all day, and did not go out until
about midnight when he walked across the street to a party. The police came the next
morning and removed things from her apartment, including Anderson’s black sweater.
Melton did not tell the police or defense counsel prior to trial that Anderson had been
with her all day or that night. She confirmed that Anderson was a member of the Avalon
gang.
Defense investigator Gary Cooper testified that in a telephone interview with
Farias prior to trial, Farias said the blue car was speeding when it passed the front porch,
and the driver’s side window was less than halfway down. Farias also told him that one
of the two men he saw had a Tech Nine machine gun, and that at the time of the
photographic lineup, the police informed him that they had caught the driver and had
recovered some weapons. Cooper went to the porch and determined that a tree blocked
some of the view of the street and when he drove the route taken by the blue car, it took
him 73 seconds.
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Brown testified that he pled guilty in September 2011 to the attempted murder of
Farias, and was in custody at the time of this trial. He testified that late on the evening
before the shooting he was walking to a bus stop after playing basketball at the park,
when a car stopped and the back seat passenger asked him if he needed a ride. Brown
recognized the person as someone he had seen playing basketball at South Park, so he got
into the car. Brown claimed that the back seat passenger was wearing a bright red shirt
and a light silver-gray sweater, and that the driver had a beard that connected with his
sideburns; however he admitted that during his interview with police after his arrest he
had variously said that the rear passenger was clean shaven and that he had a mustache
but no beard.
Brown said that the car stopped in an unfamiliar residential area and the front and
rear passenger stepped out and walked away from the car. Brown saw something black
in the hands of the rear passenger, but did not see anything in the other man’s hands.
About 30 seconds later Brown heard gunshots, ducked down, and did not see what
happened. The two passengers then came back to the car, and they drove away. When
the police later came up behind them, the driver continued to drive for a short time before
stopping. Brown fled because he was shocked and scared and the police officers had
their guns out. After a few steps an officer told him to stop, he complied, and the police
grabbed him.
Brown denied knowing Anderson or Cox in February 2010, and denied knowing
the other people in the car. When defense counsel identified Anderson and Cox in court,
Brown testified that they had not been among the three people in the car. He claimed to
have met defendants for the first time in court about a month after his arrest and that he
had seen only one of the car’s occupants before that night. However, when he was
interviewed by the police after arrest, Brown admitted he had said that he knew “a
couple” of them, having seen them around. Brown admitted falsely telling the police
repeatedly that he had not been anywhere near the gunshots, that he was not in the car,
did not know what happened, and that he was not there.
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Brown testified that he was not a gang member, that he had never told police that
he was a gang member, and that he had no gang tattoos. He admitted having met
Officers Dracon and De la Cruz while he was in South Park with Anthony Cox and Lou
Dixon in February 2010, but denied knowing Anthony or Dixon to be members of the
Five Tres Avalon Gangster Crip gang. Brown identified a photograph of himself in
South Park in which he is shown wearing a blue belt with an A on the buckle. Anthony
Cox was wearing a similar blue belt and buckle that day and Dixon wore a hat with an A
on it. When shown a photograph of Anthony’s arms, Brown claimed he could not see all
his tattoos, despite the fact that Anthony was wearing a short sleeved shirt.
Brown testified he was attending school in February 2010, and the flash drive that
was seized by the police contained school documents. When he was shown photographic
images from the flash drive, Brown admitted that he created many of them, including a
collage with 53, A, and South Park written on a shirt. He admitted that 53 and A stood
for Five Tres and Avalon. He admitted taking the photograph of papers containing such
words as East Side 53, Avalon, and 53, and that that the writing was gang graffiti, but he
explained that it was merely interesting trash he found on the ground. Brown identified
other photographs on the flash drive, including one depicting Brown, Anthony Cox, and
others displaying Five Tres Avalon Gangster Crip gang signs. Finally, Brown identified
the party flyer announcing a “kiccbacc” for February 25, 2010. Although he knew how
to spell kickback correctly, he denied that replacing the “ck” with “cc” had any
significance.
Rebuttal
The prosecution presented testimony regarding the search of the neighborhood
after the shooting and the recovery and booking of the sweatshirts.
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DISCUSSION
I. Blanket joinders
Citing California Rules of Court, rule 8.200(a)(5),6 each defendant provided a
“notice of joinder” in their opening briefs. Anderson’s notice stated that he joined in all
briefs filed by Cox and adopted all of his arguments that might accrue to his benefit, and
Cox’s notice stated that he joined in all arguments in Anderson’s opening brief.
As respondent points out, the California Supreme Court has recently criticized
blanket joinders in claims raised in a multiple defendant appeal. (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant) [“We strongly disapprove of this
seriously improper tactic”]; see also People v. Nero (2010) 181 Cal.App.4th 504, 510, fn.
11.) The court noted that although joinder is broadly permitted, California Rules of
Court, rule 8.200(a)(5) is not satisfied by “such cursory and unfocused statements” of
joinder, and each defendant continues to have the burden of demonstrating error and
prejudice. (Bryant, supra, at pp. 363-364.) Further, neither the reviewing court nor
respondent “is required to divine which aspects of a claim might be adverse to a
particular defendant, rendering him unwilling to join the particular claim at issue.
Appellate counsel for the party purporting to join some or all of the claims raised by
another are obligated to thoughtfully assess whether such joinder is proper as to the
specific claims and, if necessary, to provide particularized argument in support of his or
her client’s ability to seek relief on that ground.” (Id. at p. 363.) Finally, the court
warned that it would not “assume that each defendant has standing to raise each and
every claim raised in the briefs or that he preserved a claim for appeal by taking
appropriate and timely action below.” (Id. at p. 364.)
In reply to respondent’s observation, Cox contends that his appellate counsel has
in fact “‘thoughtfully assess[ed]’” whether such joinder is proper as to the specific
claims, and has determined that all joined issues pertain equally to both defendants, with
6 California Rules of Court, rule 8.200(a)(5) provides: “Instead of filing a brief, or
as part of its brief, a party may join in or adopt by reference all or part of a brief in the
same or a related appeal.”
16
no separate prejudice arguments necessary on Cox’s part. Anderson also contends that
all joined arguments apply equally to both defendants. In addition, Anderson represents
that all objections necessary to preserve claims were made by both defendants, and that
he will make any necessary additional arguments in his reply brief.
We thus consider each defendant’s arguments made solely by joinder only if we
are satisfied that they were individually preserved and are sufficient to meet such
individual defendant’s duty to spell out how the claimed error resulted in a miscarriage of
justice as to him. (See People v. Nero, supra, 181 Cal.App.4th at p. 510, fn. 11.)
II. Juror misconduct in first trial
Cox contends that his conviction of felon in possession of a firearm must be
reversed due to the misconduct of jurors who complained about the length of the trial and
discussed those concerns among themselves. He contends that such a discussion was a
violation of the jurors’ oaths, duties, and the trial court’s many admonitions pursuant to
section 1122 not to discuss the case. Cox also contends that the trial court should have
granted his motion for mistrial, made on the same ground. In addition to his general
joinder, Anderson contends (for the first time in his reply brief) that the trial court erred
in denying his motion for new trial, made in part on the same ground.
A. Proceedings below
On September 22, 2011, after the prosecution rested one month into the first trial,
Juror No. 2 asked to speak to the court on behalf of himself and the other jurors, and
reminded the judge that his original estimate was that the trial would conclude by
September 23. Juror No. 2 expressed the jurors’ concern that the trial seemed to have no
end and told the court that there was “a sense of frustration” from what seemed to be a
“very slow forward progression.”
The court explained that the length of the trial was unusual, acknowledged that he
and the attorneys seriously underestimated the time it would take, and explained some of
the reasons that trials took longer than expected. Juror No. 2 told the court: “I take this
very seriously and take the circumstances that these gentlemen are in very, very
seriously, and I’m not going to rush a verdict or just agree with other people because
17
that’s the way things are going.” When Juror No. 2 was questioned a second time, he
said that he thought the physical evidence presented was “pretty compelling” and that an
“array of character witnesses” would not be as persuasive as the material witnesses. He
had not, however, discussed those views with the other jurors, and he assured the court
that he had not yet formed a judgment in this case, and “absolutely” still had an open
mind. Juror No. 2 stated that he understood and respected the presumption of innocence
and the prosecution’s burden to prove defendants guilty beyond a reasonable doubt.
Since several other jurors had submitted notes, the trial court decided to inquire of
each juror individually to determine whether he or she could render a fair judgment.
Juror No. 3 reported that all but one juror had met together to discuss their frustrations
about the length of the trial. Juror No. 5 said that the jurors’ discussion about their
frustrations with the length of the trial was brief. All jurors, except Juror No. 12 and
Alternate Juror No. 2, assured the court that that they could remain fair despite their
frustrations about time delays and the length of the trial.
Juror No. 12 told the court that he had not participated in the “little meeting” with
the other jurors over lunch, but was “extremely concerned” about the duration of the trial
because of his “significant financial burden.” Asked whether this would affect his
deliberations, he said he would do his duty as best as he could, but added, “I’m not going
to sacrifice my life for these individuals that I do not know.” Alternate Juror No. 2 stated
he had “had enough” and had written a note the day before about the financial hardship
caused by not being paid at work. He also stated he had already made his decision and
believed there was enough evidence upon which to do so, but he denied having discussed
this view with other jurors.
Anderson moved for a mistrial on the ground that the jury had disobeyed the
court’s order not to discuss any matter related to the case “and yet . . . they’ve gotten
together and they’ve called a meeting.” Counsel for Anderson argued, “[W]e don’t really
know anything about how this meeting occurred and who did it, but it was clearly in
violation of an order that this court has given probably a hundred times.” Cox joined the
18
motion, and argued that the meeting in which the jurors discussed their frustrations meant
that they were talking about the evidence.
The court excused Alternate Juror No. 2, and Juror No. 3. The court denied the
motion for mistrial.
B. Applicable legal principles
A motion for mistrial “should be granted only when a party’s chances of receiving
a fair trial have been irreparably damaged.” (People v. Ayala (2000) 23 Cal.4th 225,
283.) We defer to the trial court’s factual findings if they are supported by substantial
evidence, and we review the court’s denial of the mistrial motion for an abuse of
discretion. (Id. at pp. 283, 299.) With regard to the trial court’s denial of a new trial
motion based upon alleged juror misconduct, we independently review the ruling as a
question of mixed law and fact. (People v. Nesler (1997) 16 Cal.4th 561, 582 & fn. 5;
see People v. Ault (2004) 33 Cal.4th 1250, 1261.)
“An accused has a constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced [citations]
and every member is ‘“capable and willing to decide the case solely on the evidence
before it”’ [citations].” (In re Hamilton (1999) 20 Cal.4th 273, 293.) Juror misconduct
does not render the judgment reversible per se. (In re Carpenter (1995) 9 Cal.4th 634,
675.) However, serious juror misconduct will usually give rise to a rebuttable
presumption of prejudice. (Hamilton, supra, at pp. 294-295.)
Serious juror misconduct may occur when jurors discuss among themselves a
“‘subject connected with the trial’” in violation of their oaths, duties, and admonitions.
(People v. Pierce (1979) 24 Cal.3d 199, 207.) A subject is not connected to the trial
unless “the content of the communication was about the matter pending before the jury,
i.e., the guilt or innocence of the defendant. [Citations.]” (People v. Federico (1981) 127
Cal.App.3d 20, 38.) Absent a showing of such content, a conversation among jurors is
not serious misconduct and does not give rise to a presumption of prejudice. (People v.
Chavez (1991) 231 Cal.App.3d 1471, 1484-1485.)
19
C. No prejudice presumed or shown
Without supporting authority and contrary to the cases cited above, Cox suggests
that expressing frustration over the length of the trial is a “subject connected with the
trial.” Cox has not shown that the jurors’ conversations about the duration of the trial
included any discussion of the evidence or any matter relating to the guilt or innocence of
the defendants. He merely quotes the supposition of Anderson’s counsel that the jurors
had discussed “what kind of evidence the defense intended to put on,” as well as his own
counsel’s surmise that the jurors’ responses to the trial court’s questions meant that
“they’re talking about the evidence.”
The record does not support counsel’s conjectures. Juror No. 2 thought that the
physical evidence was compelling and that any character witnesses presented by the
defense would not be as persuasive as the “material” witnesses, but he did not express
that thought to any of the other jurors. Similarly, Alternate Juror No. 2 expressed his
belief to the court that there was enough evidence to permit a decision, but he denied
having discussed this view with other jurors. None of the other jurors expressed an
opinion about the evidence, and none reported discussing the evidence or defendants’
guilt or innocence. Thus, the unauthorized communications were not about a subject
connected with the trial, and prejudice is not presumed. (See People v. Chavez, supra,
231 Cal.App.3d at pp. 1484-1485.)
Neither defendant contends that there was a likelihood of actual juror bias. (See In
re Carpenter, supra, 9 Cal.4th at p. 653.) As there was no serious misconduct and no
prejudice, presumed or shown, we find no abuse of discretion in denying the mistrial
motion, and we independently conclude that the trial court did not err in denying the
motion for new trial.
III. The John Doe contentions
Cox contends that his conviction for attempted murder (count 6) must be reversed
because the prosecution failed to reveal the identity of John Doe, the alleged victim in
that count.
20
There is no rule that the victim must be identified by his or her true name, “a
person who shoots into a group of people, intending to kill one of the group, but not
knowing or caring which one, [can] be convicted of attempted murder . . . . The mental
state required for attempted murder is the intent to kill a human being, not a particular
human being.” (People v. Stone (2009) 46 Cal.4th 131, 134.) “If the defendant is
accused of attempted murder of someone, although not necessarily a specific person, it
would be sufficient to allege enough facts to give notice of the incident referred to and
that the defendant is charged with attempted murder. For example, . . . it would [be]
sufficient to allege that defendant committed attempted murder, in that on or about [a
specific date], he attempted to murder a member of a group of persons gathered together
[in a particular location]. Although other ways to charge a case like this no doubt exist, a
charge like this example would provide adequate notice of the offense of which
defendant was accused.” (Id. at pp. 141-142.)
Despite this general rule, Cox argues that not knowing the identity of John Doe
deprived him of due process, potentially placed him in double jeopardy, possibly resulted
in a nonunanimous verdict, and in effect, violated section 954 by alleging more than one
act or victim in a single count.7
Respondent contends that Cox has forfeited these contentions by failing to object
to the charging documents in the trial court. Objections to accusatory pleadings on the
ground of uncertainty must be raised by demurrer, and failure to do so results in forfeiture
of the issue on appeal. (People v. Jennings (1991) 53 Cal.3d 334, 356-357; § 1004, subd.
(2); § 1012.) This rule of forfeiture applies to claims that the pleading of insufficient
particulars resulted in a lack of notice. (See People v. Ramirez (2003) 109 Cal.App.4th
992, 997.) Further, a double jeopardy claim must be raised at the time the defendant
enters a plea. (People v. Scott (1997) 15 Cal.4th 1188, 1201.) Finally, the forfeiture rule
7 In relevant part, section 954 provides: “An accusatory pleading may charge two
or more different offenses connected together in their commission, or different statements
of the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts . . . .” (Italics added.)
21
applies to the allegation of multiple acts in one count, as prohibited by section 954.
(§ 1004, subd.(2); § 1012; People v. McNeill (1980) 112 Cal.App.3d 330, 334-335
(McNeill).) Thus, we find that Cox has forfeited his John Doe contentions.
Anderson expressly joins in Cox’s double jeopardy argument, although he
concedes he did not object on that ground. Anderson contends that we should
nevertheless reach the double jeopardy issue because the failure to identify John Doe had
the additional consequence of violating the constitution by potentially placing him in
double jeopardy. In the only authority Anderson cites for this proposition, the California
Supreme Court explained that constitutional arguments advanced for the first time on
appeal are not forfeited when the “‘new arguments do not invoke facts or legal standards
different from those the trial court itself was asked to apply, but merely assert that the
trial court’s act or omission, insofar as wrong for the reasons actually presented to that
court, had the additional legal consequence of violating the Constitution.’” (People v.
Letner and Tobin (2010) 50 Cal.4th 99, 138, fn. 6, first italics added.) As Anderson has
failed to demonstrate that he objected to the charging documents or otherwise brought the
issue to the trial court’s attention, he is arguing, in essence, that a forfeited potential
double jeopardy violation was an additional consequence of a forfeited due process
violation. We read nothing in the Supreme Court’s explanation that would permit the
assertion of a forfeited constitutional violation as an additional consequence of another
forfeited constitutional violation.
In any event Cox’s argument is that he might be subject to double jeopardy “in
case additional charges are brought”; and neither he nor Anderson has demonstrated that
a potential double jeopardy violation in some possible future prosecution is a
consequence suffered as a result of the John Doe allegation. We thus agree with
respondent that defendants’ double jeopardy claims are purely speculative. (Cf. People v.
Sloan (2007) 42 Cal.4th 110, 120 [no double jeopardy violation when future conviction
and sentencing remain speculative]; People v. Sanchez (2001) 24 Cal.4th 983, 993
[double jeopardy contention not reached, as the court was “not faced with that question in
the present case”].)
22
Cox attempts to counter the claim of forfeiture by denying he has ever contended
that the accusatory pleading must provide the name of the victim or that the victim must
be otherwise identified. Cox concedes that “the information on its face is not
inadequate”; but he then incongruously claims that his true concern is that pursuant to
section 954, “an information cannot allege more than one victim per count.” Cox argues
he had no reason to demur to the information, because “[w]hat became unconstitutional
as the trial unfolded was the prosecution’s argument after the testimony of Steve Farias,
that the John Doe in count six (renumbered count three) could have been anyone of four
different people.” (Italics added.)8
It seems then that Cox contends that prosecutorial misconduct gave rise to the trial
court’s obligation to instruct the jury that it must unanimously agree which of the four
people defendants intended to kill. Such an argument does not resolve the forfeiture
issue. “In order to preserve a claim of prosecutorial misconduct for appeal, the defense
must make a timely objection at trial and request an admonition. [Citations.]” (People v.
Gutierrez (2002) 28 Cal.4th 1083, 1146.) Cox did not object to the prosecutor’s
argument or request an admonition.
Cox also suggests that the prosecutor’s argument gave rise to the trial court’s sua
sponte obligation to craft and give a pinpoint unanimity instruction regarding the four
individuals. Cox cites the general rule that “when the evidence suggests more than one
discrete crime, either the prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001)
25 Cal.4th 1124, 1132.) Cox then relies on a comparison with McNeill, where the trial
court failed to give a unanimity instruction. There, an exception to the forfeiture rule
8 The prosecutor was attempting to explain the “kill zone” theory of concurrent
intent. Under that theory, a defendant may be convicted of attempted murder if he
intended to kill a primary victim by killing everyone in that victim’s vicinity. (See
People v. Stone, supra, 46 Cal.4th at pp. 136-138.) In addition, a defendant who directs
lethal force at a group of people in close proximity “can be convicted of several
attempted murders if he intended to kill several people, even if there were no particular
people he intended to kill. [Citation.]” (People v. McCloud (2012) 211 Cal.App.4th 788,
798-799.)
23
arose in the absence of an appropriate instruction, when the inclusion of multiple victims
in one count could have resulted in a verdict rendered by jurors who did not unanimously
agree on the act constituting the charged offense. (McNeill, supra, 112 Cal.App.3d at pp.
335-336.) McNeill does not provide an apt comparison. First, unlike here, the
information in that case was defective, as a single count charged the defendant with
assault upon four victims, not one John Doe; and second, the McNeill trial court
instructed the jury that it could convict the defendant of assault if it found “‘that
defendant committed these acts on only one of the named individuals.’” (Id. at pp. 334-
335.) Here, the information was not defective and the trial court did not instruct the jury
that it could find that a defendant attempted to murder John Doe if he attempted to
murder any one of the four companions.
“The unanimity instruction is not required when the acts alleged are so closely
connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule
applies when the defendant offers essentially the same defense to each of the acts, and
there is no reasonable basis for the jury to distinguish between them. [Citation.]”
(People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Thus, no unanimity instruction is
required where the continuous course of conduct consisted of repeatedly firing a weapon
directly at a group of people with the intent to kill any or all of them. (People v. Ervine
(2009) 47 Cal.4th 745, 788; see People v. Flores (2007) 157 Cal.App.4th 216, 223.)
Here, in a continuous course of conduct, the shooter fired multiple shots in the direction
of Farias and his four friends who were within two or three feet of Farias. Cox presented
the same defense to the two attempted murder charges: that Cox was not there. Cox does
not claim that he would have presented any different defense with regard to Farias or any
of his four companions.
We conclude the trial court was not required to give a sua sponte special
unanimity instruction regarding the four companions; and as Cox has conceded that the
information was not defective, we need not reach his pleading issues.
24
IV. Wheeler/Batson
Anderson contends that the prosecutor used peremptory challenges in both the first
and second trials to systematically exclude African-Americans from the jury, and that he
was deprived of his right to a jury trial as guaranteed by the United States Constitution
by the trial court’s denial of defendants’ Wheeler/Batson motions to strike the panel. In
addition to his blanket joinder, Cox contends that he was denied an adequate record to
permit meaningful appellate review of the motions.
A. Applicable legal principles
1. Three-step inquiry
The use of peremptory challenges to remove prospective jurors solely on the basis
of a presumed group bias violates both the state and federal Constitutions. (Wheeler,
supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at p. 89.) In reviewing a
Wheeler/Batson motion, the trial court engages in a three-step inquiry: first, the objecting
party must make a prima facie showing of prohibited group bias; second, the burden
shifts to the party who exercised the peremptory challenge to give a nondiscriminatory
reason; and in the third step, the trial court evaluates the proffered reasons and determines
whether the objecting party has proven purposeful discrimination. (People v. Silva
(2001) 25 Cal.4th 345, 384; Purkett v. Elem (1995) 514 U.S. 765, 767.) “The ultimate
burden of persuasion regarding [discriminatory] motivation rests with, and never shifts
from, the opponent of the strike. [Citation.] The three-step procedure also applies to
state constitutional claims. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 612-
613 (Lenix).)
2. Standard of review
In both trials, the trial court found that the defense made a prima facie showing as
to each of the prosecutor’s challenges and required the prosecutor to articulate reasons for
them. The court then found each challenge was justified with a nondiscriminatory
reason. Defendants’ contentions relate to the third-stage inquiry to determine whether
defendants proved purposeful discrimination. (See People v. Silva, supra, 25 Cal.4th at
p. 384; Purkett v. Elem, supra, 514 U.S. at p. 767.)
25
“‘[T]he critical question in determining whether a [defendant] has proved
purposeful discrimination’ at a third-stage inquiry ‘is the persuasiveness of the
prosecutor’s justification for his peremptory strike . . .’ [and] whether the trial court finds
the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by,
among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable,
the explanations are; and by whether the proffered rationale has some basis in accepted
trial strategy.’ [Citations.] (People v. Riccardi (2012) 54 Cal.4th 758, 787 (Riccardi),
quoting Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339.) “‘“As with the state of
mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and
credibility lies ‘peculiarly within a trial judge’s province.’”’ [Citations.]” (Riccardi,
supra, at p.787.) “‘We presume that a prosecutor uses peremptory challenges in a
constitutional manner and give great deference to the trial court’s ability to distinguish
bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a
sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal. [Citation.]’ [Citation.]” (Lenix, supra,
44 Cal.4th at pp. 613-614, fn. omitted.)
“Accordingly, because the trial court is ‘well positioned’ to ascertain the
credibility of the prosecutor’s explanations and a reviewing court only has transcripts at
its disposal, on appeal ‘“the trial court’s decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort accorded great deference on
appeal” and will not be overturned unless clearly erroneous.’ [Citations.]” (Riccardi,
supra, 54 Cal.4th at p.787; Miller-El v. Cockrell, supra, 537 U.S. at p. 339-340.)
B. First trial
1. Challenge and ruling
When the prosecutor struck prospective Juror No. 7117 from the panel,
Anderson’s counsel objected. There remained three other African-American jurors on
the panel at that time, and the prosecutor represented that Juror No. 7117 was the first
26
African-American excused. The trial court found a prima facie showing and heard the
prosecutor’s reasons for excusing Juror No. 7117.9
The prosecutor explained her negative feeling about Juror No. 7117 from the
beginning: when Juror No. 7117 was asked to describe her impressions of the defendants
as she entered the courtroom for the first time, she stated that she thought the defendants
were three nice-looking, clean-cut young men. Because one of the defendants was a
juvenile, the prosecutor expressed concern that his counsel would use that to create
sympathy for him. She also pointed out that she had previously excused 10 other jurors
because their comments suggested sympathy toward the defendants given their youth.
The prosecutor also thought that Juror No. 7117 had “puff[ed] up” her occupation by
saying she was in aerospace, and later clarified that she was a data processor in the
aerospace industry. Additionally, the prosecutor noticed that Juror No. 7117 had few
interactions with others in the hallway and had not made friends with the other jurors, as
well as seeming animated and attentive to defense topics and questions, but not so
animated during prosecution questions. In sum, the prosecutor explained, her overall
impression was that Juror No. 7117 was a pro-defense juror.
The trial court found that Juror No. 7117’s comments about the defendants’ youth
and other things justified the prosecutor’s concern that she would be sympathetic. The
court then overruled the Wheeler/Batson objection.
2. Comparative analysis and inadequate record
Anderson suggests that it is appropriate to review the trial court’s ruling by
undertaking a comparative juror analysis of the first trial’s jury selection, although
neither defendant made such an analysis in the trial court. A “comparative juror analysis
is but one form of circumstantial evidence that is relevant, but not necessarily dispositive,
on the issue of intentional discrimination.” (Lenix, supra, 44 Cal.4th at p. 622.)
9 In his opening brief, Anderson states that the prosecutor excused two African-
American women prior to challenging Juror No. 7117, and defense counsel argued to the
trial court that two of the prosecutor’s challenges had been African-American, but the
record does not support this claim.
27
Comparisons to accepted jurors may tend to show purposeful discrimination “[i]f a
prosecutor’s proffered reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve.” (Miller-El v. Dretke (2005)
545 U.S. 231, 241; see also Lenix, at p. 621.)
Anderson relies on People v. Williams (2013) 56 Cal.4th 630, in which the
California Supreme Court restated the rule that a “comparative juror analysis must be
considered for the first time on appeal while reviewing third stage Batson/Wheeler claims
when a defendant relies on such evidence and the record is adequate to permit the
comparisons. [Citation.]” (Id. at p. 661, citing Lenix, supra, 44 Cal.4th at p. 607, italics
added.) Even then, when no comparative analysis was made in the trial court, appellate
review is necessarily circumscribed. (Lenix, supra, at pp. 622, 624.) “Defendants who
wait until appeal to argue comparative juror analysis must be mindful that such evidence
will be considered in view of the deference accorded the trial court’s ultimate finding of
no discriminatory intent. [Citation.]” (Id. at p. 624; see also Hernandez v. New York
(1991) 500 U.S. 352, 365.)
Although Anderson has demanded a comparative analysis for the first time on
appeal, he makes no attempt to provide his own comparison between challenged African-
American jurors and seated non-African-American jurors to demonstrate that the
prosecutor’s reasons were pretextual. We note that Anderson merely points out that one
of the prosecutor’s reasons for striking Juror No. 7117, appearing sympathetic toward
defendants due to their youth, applied equally to 10 other jurors who were not seated. If
anything, Anderson’s comparison tends to demonstrate the prosecutor’s sincerity, not a
pretext.
Cox complains that the state of the record makes a comparative analysis
impossible, and both defendants contend that the inadequacy of the record requires
reversal. Cox cites the general rule that “‘“[a] defendant in a criminal case is entitled to
an appellate record adequate to permit ‘meaningful appellate review.’”’ [Citation.]”
(People v. Galland (2008) 45 Cal.4th 354, 370.) However, the right to an adequate
record does not negate the “appellant’s burden to present a record adequate for review
28
and to affirmatively demonstrate error.” (People v. Whalen (2013) 56 Cal.4th 1, 84.) If
parts of the record are missing, defendant must attempt if possible, to reconstruct them or
obtain a settled statement. (See People v. Osband (1996) 13 Cal.4th 622, 661-663.) If
not possible, reversal is not automatic, as the defendant must demonstrate just the
inadequate record prejudiced him. (See People v. Heard (2003) 31 Cal.4th 946, 970.)
Cox does not claim that he attempted to obtain juror questionnaires, reviewed the
court’s minutes, requested information from the courtroom clerk, or attempted to obtain a
settled statement drawn from the recollections of people present in court during voir dire.
Instead, he suggests that he is relieved of his burden because the court reporter is to
blame, having failed to properly identify all prospective jurors by badge number. On the
contrary, his burden is not met by “simply citing an administrative dereliction.” (People
v. Coley (1997) 52 Cal.App.4th 964, 970.)
Moreover, as soon as defendants made their Wheeler/Batson objections, they were
required to make a prima facie showing that jurors were challenged solely on the basis of
their presumed group bias, and upon so doing, it was incumbent upon them to “‘make as
complete a record of the circumstances as . . . feasible.’” (People v. Williams (1997) 16
Cal.4th 153, 187; see also Wheeler, supra, 22 Cal.3d at pp. 278-281.) Surely the court
reporter would have recorded each prospective juror by both badge and seat number if
counsel had requested clarification of their identifications at the time they were
questioned, excused, or seated. As defendants have shown no attempt to preserve or
provide an adequate record and make no claim of prejudice, reversal is not required on
this ground.
3. Genuineness of prosecutor’s reasons
Anderson contends that the prosecutor’s impression that Juror No. 7117 showed
sympathy toward defendants was incorrect, and that her responses reflected “only
curiosity.” The trial court was apparently satisfied by the prosecutor’s sincerity as well
as her descriptions of Juror No. 7117’s demeanor, negative body language when
questioned by the prosecution, and positive body language when questioned by the
defense. “It is well settled that ‘[p]eremptory challenges based on counsel’s personal
29
observations are not improper.’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903,
917.) Thus, a prosecutor may rely upon even subtle body language, such as a smile or a
glare, or the prospective juror’s manner of answering questions. (Ibid.) The trial court
was able to observe Juror No. 7117’s demeanor, and apparently agreed with the
prosecutor. As we have only the transcript of the proceedings before us, we defer to the
court’s observations. (See Riccardi, supra, 54 Cal.4th at p. 787; Lenix, supra, 44 Cal.4th
at pp. 626-627.)
Anderson argues that the prosecutor based her challenge of Juror No. 7117 solely
upon her demeanor and occupation as a data processor rather than an aerospace engineer,
and failed to state any other race-neutral reasons. Anderson exaggerates, as the
prosecutor did not base her challenge solely on demeanor, nor did she express a bias
against data processors. Moreover, as respondent observes, Anderson has failed to
consider the totality of the prosecution’s reasons. The prosecutor explained in detail why
Juror No. 7117’s words, demeanor, and body language appeared to demonstrate
sympathy toward the defendants. The prosecutor also described Juror No. 7117’s
behavior toward other prospective jurors, and explained that the juror did not appear to fit
in and voiced her concerns that Juror No. 7117’s claim to be retired from “aerospace”
gave the impression she was exaggerating the importance of her occupation.
We agree with respondent that the cases cited by Anderson are inapposite, as all
involved vague reasons unsupported by the sort of detailed and specific explanations
supplied by the prosecutor in this case. (See, e.g., People v. Allen (2004) 115
Cal.App.4th 542, 551-553 [“incomprehensible” reference to “demeanor” without any
details]; People v. Turner (1986) 42 Cal.3d 711, 725 [“something in her work” which
prosecutor could not remember]; McCain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1223
[“patently frivolous” explanation that juror had her “elbow on her chair”].)
Anderson cannot meet his third stage Wheeler/Batson burden to show the
prosecutor excused prospective jurors for discriminatory reasons merely by asserting
“‘that some of the nondiscriminatory reasons offered by the prosecutor are not supported
by the record.’ [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1049-1050.) In any
30
event, the prosecutor’s impression that Juror No. 7117 was sympathetic toward
defendants was amply supported by the record. After the court reminded the jurors that
defense counsel had inquired about the prospective jurors’ first impressions upon
entering the courtroom, the court asked the jurors to volunteer any impressions or
thoughts that might interest the attorneys. Juror No. 7117 was the only one to volunteer
her first impression. She told the court that upon first entering the courtroom, she
thought, “[W]hat are three nice-looking, clean-cut men doing here? And I’m trying to
figure out what they did.” And she wondered, “What was the problem[?]”
We conclude that defendants have failed to demonstrate that the trial court’s ruling
was clearly erroneous, and find reversal of the convictions from the first trial is
unwarranted. (See Riccardi, supra, 54 Cal.4th at p. 787.)
C. Second trial
Anderson made another Wheeler/Batson objection in the second trial after the
prosecutor challenged three African-American prospective jurors (Nos. 7215, 9331, and
0726). The court found the defendant made a prima facie showing and asked the
prosecutor to justify the challenges.
The prosecutor explained that she excused Juror No. 7215 because the prospective
juror was a young social worker who worked with the homeless and had worked with
children in foster care. The prosecutor also challenged Juror No. 7215 because she had
little life experience and had never heard of the presumption of innocence. These factors
provide a reasonable basis for a peremptory challenge. (See People v. Watson (2008) 43
Cal.4th 652, 677; People v. Sims (1993) 5 Cal.4th 405, 430-431.)
As for Juror No. 9331, the prosecutor explained that when responding to an
inquiry about negative experience with law enforcement, Juror No. 9331 revealed that he
had been arrested in the past. The prosecutor reasonably construed his response as
stating that his arrest was a negative experience. The California Supreme Court has
“‘repeatedly upheld peremptory challenges made on the basis of a prospective juror’s
negative experience with law enforcement.’ [Citations.]” (Lenix, supra, 44 Cal.4th at p.
628.)
31
Finally, the prosecutor challenged Juror No. 0726 because that prospective juror
did not want to sit in judgment of another and said she felt she was being forced to do so.
Juror No. 0726 also said her father had been murdered and she attended the trial every
day. The prosecutor had the impression that although there was a conviction in the case
of the father’s murder, Juror No. 0726’s other responses indicated that she had a problem
with the justice system. “[S]kepticism about the fairness of the criminal justice system is
a valid ground for excusing jurors. [Citations.]” (People v. Calvin (2008) 159
Cal.App.4th 1377, 1386.)
The trial court found the reasons to be race-neutral, and expressly agreed with the
prosecutor’s assessments, particularly with regard to Juror No. 0726, who “was all over
the place.” Anderson does not contend that the trial court’s ruling was unsupported by
substantial evidence, although our review considers only whether substantial evidence
supports the court’s conclusions. (Lenix, supra, 44 Cal.4th at p. 613.)
Moreover, Anderson does not demonstrate substantial evidence of pretext. It is
not the reviewing court’s obligation to “examine the record in detail and determine
independently whether the proffered reasons for the excusal were likely sincere.”
(People v. Mai, supra, 57 Cal.4th at p. 1049, fn. 26.) Anderson simply disagrees with the
reasons the prosecutor gave, and briefly draws inferences that might support a contrary
result.10
The burden to demonstrate purposeful discrimination remains with Anderson as
the objecting party. (Lenix, supra, 44 Cal.4th at pp. 612-613.) That burden is not met by
simply inviting this court to make a contrary finding, but requires an examination of all
relevant circumstances, which “may often be open to more than one reasonable
deduction. Thus, care must be taken not to accept one reasonable interpretation to the
10 Anderson notes that the youthful social worker had a job, which suggests maturity,
and she told the court she could be fair. Juror No. 9331, who had a negative experience
with law enforcement, also said he could be fair, from which Anderson infers that he “got
over it.” Finally, Anderson did not agree that Juror No. 0726 had reservations about the
justice system because she expressed satisfaction with the outcome of the trial of her
father’s murderer and she had served on two other juries which reached verdicts.
32
exclusion of other reasonable ones.” (Id. at p. 627, see also pp. 626, 628.) Where, as
here, “the trial court accepted explanations that are facially permissible, inherently
plausible, and factually supported, and defendant cites no substantial evidence of pretext
. . . , there is no reason on appeal to suspect a dereliction of duty by the trial court, or to
reverse the presumption that the excusals were exercised legitimately . . . .” (People v.
Mai, supra, 57 Cal.4th at p. 1049, fn. 26.) We find no error by the trial court.
V. Kill zone instruction
Cox contends that there was insufficient evidence to justify a kill zone jury
instruction in the second trial. The trial court read CALJIC No. 8.66.1, as follows: “A
person who primarily intends to kill one person may also concurrently intend to kill other
persons within a particular zone of risk. This zone of risk is termed the kill zone. The
intent is concurrent when the nature and scope of the attack while directed at a primary
victim are such that it is reasonable to infer the perpetrator intended to kill the primary
victim by killing everyone in that victim’s vicinity. Whether a perpetrator actually
intended to kill the victim either as a primary target or as someone within the kill zone or
zone of risk is an issue to be decided by you.”
To be guilty of attempted murder, a defendant must intend to kill the alleged
victim and commit a direct but ineffectual act toward accomplishing the intended killing.
(People v. Stone, supra, 46 Cal.4th at p. 136.) “The act of shooting a firearm toward a
victim at close range in a manner that could have inflicted a mortal wound had the shot
been on target is sufficient to support an inference of an intent to kill. [Citation.]”
(People v. Houston (2012) 54 Cal.4th 1186, 1218.) The intent to kill multiple victims
may be inferred when the defendant uses lethal force calculated to kill everyone within an
area around the primary target as a means of ensuring the primary target’s death. (People
v. Bland (2002) 28 Cal.4th 313, 329.) Similarly, a defendant who directs lethal force at a
group of people in close proximity “can be convicted of several attempted murders if he
intended to kill several people, even if there were no particular people he intended to kill.
[Citation.]” (People v. McCloud, supra, 211 Cal.App.4th at pp. 798-799; see also People
v. Houston, supra, at p. 1218.) The term “kill zone” is merely shorthand for such
33
concurrent intent, which “is not a legal doctrine requiring special jury instructions, as is
the doctrine of transferred intent.” (People v. Bland, supra, at p. 331, fn. 6.) Although
the trial court is not required to give a kill zone instruction, it may do so when it is
supported by the evidence. (See People v. Stone, supra, at pp. 137-138.)
Cox argues that there was no evidence that the shooter intended to kill everyone in
front of the house, and he suggests that the shooter might only have intended to kill
Farias and John Doe, or merely to frighten or harm one or the other. On the contrary,
substantial evidence established that the shooter used a semiautomatic weapon to fire
multiple shots at a small group of people a short distance away. Firing a single shot in
the direction of a group will not ordinarily support multiple counts of attempted murder
under a kill zone theory. (People v. Perez (2010) 50 Cal.4th 222, 225, 230-231.) And
firing multiple shots at a very large group of people will not necessarily support an
inference that the shooter intended to kill more people than the number of bullets fired.
(See People v. McCloud, supra, 211 Cal.App.4th at pp. 802-807.) However, firing
multiple shots directly at a small group at close range will give rise to a reasonable
inference that the shooter intended to kill all in the group. (People v. Garcia (2012) 204
Cal.App.4th 542, 554.) Such was the case here. A kill zone instruction was thus
appropriate, and the trial court did not err in reading CALJIC No. 8.66.1.
VI. Conspiracy instruction
Anderson contends that the jury instruction regarding uncharged conspiracy was
incorrectly modified by the trial court.
“[C]onspiracy is a specific intent crime requiring an intent to agree or conspire,
and a further intent to commit the target crime.” (People v. Swain (1996) 12 Cal.4th 593,
602.) “‘[A]n uncharged conspiracy may properly be used to prove criminal liability for
acts of a coconspirator. [Citations.] “Failure to charge conspiracy as a separate offense
does not preclude the People from proving that those substantive offenses which are
charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows,
does it preclude the giving of jury instructions based on a conspiracy theory [citations].”
[Citation.]’ [Citations.]” (People v. Valdez (2012) 55 Cal.4th 82, 150.)
34
The trial court modified CALJIC No. 6.22 to identify the target crime as attempted
murder and instructed the jury in relevant part as follows: “Before you may use a
conspiracy theory to convict any of the defendants of attempted murder, you must
unanimously agree and find beyond a reasonable doubt, that (1) there was a conspiracy to
commit the crime of attempted murder, and (2) a defendant willfully, intentionally and
knowingly joined with any other or others in the alleged conspiracy. You must also
unanimously agree and find beyond a reasonable doubt that an overt act was committed
by one of the conspirators.”
Anderson correctly asserts that conspiracy to commit attempted murder is a
nonexistent crime. (See People v. Iniguez (2002) 96 Cal.App.4th 75, 79-81 (Iniguez).)
“‘Attempted murder requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing. . . .’ [Citation.]” (People v.
Houston, supra, 54 Cal.4th at p. 1217.) “[U]nder a traditional conspiracy approach, one
cannot conspire to try to commit a crime.” (People v. Johnson (2013) 57 Cal.4th 250,
264.)
Anderson contends that the judgment must be reversed because the instruction was
an incorrect statement of law. Respondent contends that Anderson forfeited this issue by
failing to object to the modified instruction. Anderson does not deny that he failed to
object to the instruction, but contends that the error affected his substantial rights and
thus should be reviewed. (See People v. Famalaro (2011) 52 Cal.4th 1, 35; § 1259.) He
argues that because there was a general verdict and the trial court also instructed with
regard to the legally correct theory of aiding and abetting, it is impossible to determine
whether the jury relied on that theory or the incorrect theory of liability in convicting him
of attempted murder. He concludes that under such circumstances, reversal is required.
(See People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 [reversal generally required
when reviewing court cannot determine whether jury convicted in reliance on improper
legal theory].)
Anderson relies on a case in which a conspiracy conviction was reversed because
“[t]he conduct defendant pleaded to, conspiracy to commit attempted murder, is a
35
conclusive legal falsehood.” (Iniguez, supra, 96 Cal.App.4th at p. 79.) Anderson has
cited no case in which an attempted murder conviction has been reversed due to an
instruction that, as an alternative to ordinary aiding and abetting principles, the jury could
find derivative liability based upon an uncharged conspiracy to commit an attempted
murder. As the modified instruction given here did not permit the jury to convict
Anderson of conspiracy, Iniguez does not directly support Anderson’s theory. However,
as that court aptly pointed out, the crime of attempted murder requires a specific intent to
actually commit the murder, while an agreement to commit attempted murder would
contemplate no more than an ineffectual act, and “[n]o one can simultaneously intend to
do and not to do the same act.” (Iniguez, supra, 96 Cal.App.4th at p. 77.) By suggesting
such an impossibility here, we conclude that the court’s modification resulted in an
ambiguous instruction.
We thus agree with respondent that whether the instruction was erroneous must be
tested under the “reasonable likelihood” test applied to ambiguous instructions: whether
there is a reasonable likelihood that the jury misunderstood and misapplied the
instruction. (See People v. Benson (1990) 52 Cal.3d 754, 801, citing Boyde v. California
(1990) 494 U.S. 370, 378-381.) In applying this test, we determine “the meaning that the
instructions communicated to the jury. If that meaning was not objectionable, the
instructions cannot be deemed erroneous. [Citation.]” (People v. Benson, supra, at p.
801.) Further, “we do not view the instruction in artificial isolation but rather in the
context of the overall charge. [Citation.]” (People v. Mayfield (1977) 14 Cal.4th 668,
777.)
The modified conspiracy instruction, taken in the context of the other instructions,
made clear to the jury that defendants were not charged with the crime of conspiracy, that
the conspiracy instructions provided an alternative to the prosecution’s aiding and
abetting theory, that the prosecution was required to prove that the coconspirator who
committed the act harbored the specific intent to kill, and that all conspirators entertained
the same intent when the defendant agreed to the criminal design. The court also
instructed the jury that the crime of attempted murder was not committed by mere
36
planning, but by acts actually undertaken by “a person who intends to kill another person
. . . where those acts clearly indicate a certain unambiguous intent to kill,” and which
would have been completed but for “some circumstances not intended in the original
design.” The court instructed the jury, in essence, that the conspirators must be found to
have intended to kill and have intended for their original design to succeed, but the
original design failed for an unintended reason.
“It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions. [Citation.]” (People v. Gonzales
(2011) 51 Cal.4th 894, 940.) “Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that lawyers might.
Differences among them in interpretation of instructions may be thrashed out in the
deliberative process, with commonsense understanding of the instructions in the light of
all that has taken place at the trial likely to prevail over technical hairsplitting.” (Boyde v.
California, supra, 494 U.S. at pp. 380-381.) Thus, as other instructions made clear that
liability could not be premised upon an agreement to kill the victims while also agreeing
to fail at their attempt, and there is no indication in the record that the jury believed
otherwise, we presume that the jurors did not engage in the kind of technical hairsplitting
suggested by Anderson. We conclude that there is no reasonable likelihood that the jury
misunderstood or misapplied the modified instruction. Thus the instructions cannot be
deemed erroneous. (People v. Benson, supra, 52 Cal.3d at p. 801.)
Moreover, as the instruction was merely ambiguous, with no reasonable likelihood
that the jury misunderstood or misapplied the modified instruction, coupled with the
overwhelming evidence which established that Anderson shared Cox’s intent to kill the
young men on the porch, the modification was harmless under any standard. (See People
v. Beltran (2013) 56 Cal.4th 935, 955-956.) Although the bullets recovered from the
scene had been fired from the Glock handgun linked to Cox, Anderson was armed as well
with the jammed assault weapon that Farias thought was an Uzi. In addition, Farias
identified both defendants as the men who approached within a few feet of the porch,
where he saw Anderson fire his gun after loading it with an ammunition clip. Firing a
37
semiautomatic weapon from a few feet of a person or persons creates a strong inference
that the shooting intended to kill whoever was within point-blank range, and the
fortuitous jamming of the weapon does not weaken that inference. (People v. Lee (1987)
43 Cal.3d 666, 677-679.)
VII. Sufficiency of gang evidence
Anderson contends that the gang enhancement was unsupported by substantial
evidence.
The finding of a gang enhancement is reviewed under the same substantial
evidence standard as any other conviction. (See People v. Albillar (2010) 51 Cal.4th 47,
59-60 (Albillar).) Thus, “we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence -- that is, evidence that is
reasonable, credible, and of solid value -- from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (Ibid.)
A finding under section 186.22, subdivision (b)(1), has two elements: (1) the
crime was committed for the benefit of any criminal street gang, or in the alternative, at
the direction of or in association with any criminal street gang; and (2) the crime was
committed with the specific intent to promote, further, or assist in any criminal conduct
by gang members. (Albillar, supra, 51 Cal.4th at pp. 64-65, 67-68.) The association
alternative of the first element may be established with substantial evidence of the
intentional commission of the crime in concert with a known gang member. (People v.
Morales (2003) 112 Cal.App.4th 1176, 1198; see Albillar, at pp. 61, 67-68.) As to the
second element, “if substantial evidence establishes that the defendant intended to and
did commit the charged felony with known members of a gang, the jury may fairly infer
38
that the defendant had the specific intent to promote, further, or assist criminal conduct
by those gang members.” (Albillar, at p. 68.)
It is unclear whether Anderson is challenging the evidence supporting the first
element of the gang enhancement, the second element, or both, as he has not challenged
the overwhelming evidence that all three defendants were members of the Five Tres
Avalon Gangster Crip criminal street gang, nor has he challenged the sufficiency of the
evidence establishing that the three defendants participated in the crime knowing that
each other participant was a gang member. Thus, under the evidence which Anderson
has failed to challenge as insubstantial, the jury could reasonably infer both elements of
the enhancement: that defendants committed the crime in association with a criminal
street gang with the specific intent to promote, further, or assist in any criminal conduct
by gang members.
Moreover, as respondent observes, Anderson has failed to set forth all the
evidence favorable to the judgment to demonstrate its insufficiency.11 Anderson’s
argument consists of pointing out flaws in the gang expert’s opinion and the absence of
certain facts that would better support that opinion, and of suggesting that we reweigh the
evidence and draw inferences less favorable to the jury’s finding. It is Anderson’s
burden as the appellant to demonstrate that the evidence is insufficient to support the
judgment, and he does not meet that burden “by citing only his own evidence, or by
arguing about what evidence is not in the record, or by portraying the evidence that is in
the record in the light most favorable to himself.” (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573.)
11 In reply, Anderson does not deny the accuracy of respondent’s observation, but
claims that it is unjustified because if a defendant were prevented from “marshaling his
own evidence” in this manner, he would be foreclosed from “point[ing] out the
constitutional deficiencies in the People’s evidence” and could never prevail on a
substantial evidence challenge on appeal. We have found no authority to disregard the
standard of review set forth by our high court in Albillar. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
39
Nevertheless Anderson attempts to do just that by arguing “[t]he shooting lacked
all recognized indicia of a gang-related crime” because there was no evidence that the car
used in the crime was stolen, or of a prior gang challenge, gang signs, shouting out the
name of the gang, or bragging by the gang afterward. Anderson contends that the gang
“expert conceded that there is no evidence that a shooting was for the benefit of or in
association with a gang when two men walk up to a house and fire at three people, when
there is no evidence that anyone called out a gang name or flashed gang signs[,] there is
no graffiti . . . and none of the [victims] were gang members.” Anderson exaggerates the
expert’s so-called “concession.” Defense counsel’s hypothetical facts did not include all
the relevant facts in evidence as the prosecutor’s hypothetical facts did, such as the
shooters’ membership in the same gang, the location of the crime in rival gang territory,
the fact that the victims were a group of young men, the classic gang-style walk-up
shooting after a disrespectful shout, and untraceable paper plates on the getaway car.
After disregarding such facts underlying the expert’s opinion, Anderson concludes
that the gang expert’s testimony was insufficient to support the finding, because it “was
opinion, not evidence.” In fact, a gang expert’s opinion based upon the facts in evidence
is evidence: “It is well settled that expert testimony about gang culture and habits is the
type of evidence a jury may rely on to reach a verdict on a gang-related offense or a
finding on a gang allegation. [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th
925, 930; see also People v. Gardeley (1996) 14 Cal.4th 605, 618.) And expert opinion
may be sufficient to prove that a crime was gang related and committed with the intent to
benefit a gang. (People v. Vang (2011) 52 Cal.4th 1038, 1048-1049; Albillar, supra, 51
Cal.4th at p. 63.)
Here, the gang finding was amply supported by the expert opinions of Officers
Drenckhahn and Fransen, as well as the officers’ personal experiences with Cox,
Anderson, and Brown in the neighborhood of the Five Tres Avalon Gangster Crip gang.
The defendants were admitted members of the gang, and had been seen by one or both of
the officers in the company of other self-confessed members of the Five Tres Avalon
Gangster Crip gang, wearing the gang’s colors and celebrating the gang’s special day.
40
Both Cox and Anderson had gang related tattoos. Officer Fransen explained that in gang
culture, publicly associating with other known members of the gang within their territory
was a sign of allegiance to that gang. According to Officer Drenckhahn, gang related
tattoos also demonstrated allegiance to the gang.
In addition, Officer Drenckhahn explained that when active members of criminal
street gangs go on missions to commit crimes in rival gang territory, they typically bring
fellow gang members with them to verify their work on behalf of the gang and for overall
support. It is also customary to target known rivals or anyone fitting the description of a
rival gang member. Here, defendants showed contempt for four young men in rival gang
territory by yelling something like, “Fuck these fools,” just before they shot. In response
to a hypothetical question mirroring the evidence in this case, Officer Drenckhahn opined
that the crime was a classic mission-type shooting, and that such a crime would benefit
the gang by creating an atmosphere of fear in the community, leading residents to refuse
to cooperate with the police or to identify gang members. It made no difference that the
gang members did not call out the gang’s name while committing the crime, as Officer
Drenckhahn knew from experience such calling out did not always occur during gang
missions.
We conclude that substantial evidence supported both elements of the gang
enhancement and we are not persuaded otherwise by Anderson’s comparison to cases in
which the evidence was insufficient.12 Comparison with such cases is rarely helpful in a
substantial evidence review, as every case necessarily depends on its own facts. (People
v. Thomas (1992) 2 Cal.4th 489, 516.)
12 See People v. Ramon (2009) 175 Cal.App.4th 843, 851 (no evidence the crime
committed was one of gang’s activities); People v. Albarran (2007) 149 Cal.App.4th 214,
228 (Albarran) (no substantial evidence issue; gang evidence held irrelevant to the
charges and extraordinarily prejudicial); In re Frank S. (2006) 141 Cal.App.4th 1192,
1199 (crime not committed in gang territory or with another gang member); People v.
Killebrew (2002) 103 Cal.App.4th 644, 647 (handgun possession improperly based on
expert’s opinion that gang members possessed guns in common), disapproved in part in
People v. Vang, supra, 52 Cal.4th at pages 1047-1048 and footnote 3.
41
VIII. New trial motions
Anderson contends that the trial court erred in denying defendants’ motions for
new trial, because the prosecution failed to present sufficient evidence that the crimes
were gang related before presenting unduly inflammatory gang evidence that was thus
immaterial to any issue in the case. Cox’s counsel made the oral motion for new trial in
which Anderson’s counsel joined. Anderson relies on a comparison to Albarran, arguing
that the prosecution failed to prove a “tie-in to gangs” or present evidence of a gang
challenge; and he again argues that the gang expert’s ambiguous “concession” to an
incomplete hypothetical question posed by defense counsel demonstrates that the gang
evidence was insufficient.
When the issue involves sufficiency of the evidence, the denial of a motion for
new trial is reviewed for an abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622,
730.) “The court has broad discretion in ruling on a new trial motion, and the court’s
ruling will not be overturned absent a clear and unmistakable abuse of that discretion.
[Citation.] The court abuses its discretion, however, where it misconceives its duty,
applies an incorrect legal standard, or fails to independently consider the weight of the
evidence. [Citation.]” (People v. Carter (2014) 227 Cal.App.4th 322, 328.)
Citing People v. Nesler (1997) 16 Cal.4th 561, and Albarran, Anderson contends
that we must conduct a de novo review of the trial court’s ruling. In Nesler, the
California Supreme Court concluded that de novo review is appropriate for the denial of a
defendant’s motion for a new trial on grounds of juror misconduct. (See Nesler, supra, at
p. 582, fn. 5.) In Albarran, the appellate court construed Nesler as requiring de novo
review whenever the issue implicated a significant constitutional issue, and found that the
trial court’s partial new trial grant presented the sort of rare and unusual circumstance
implicating such a significant constitutional issue. (Albarran, supra, 149 Cal.App.4th at
pp. 224 & fn. 7, 232.)
It is Anderson’s position that the significant constitutional issue requiring a
de novo review arose in this case from the trial court’s failure to bifurcate the gang
enhancement from the rest of the trial. Anderson claims that in the jury’s consideration
42
of highly inflammatory but insufficiently probative gang evidence on the issue of guilt
was the result of the decision. However, no motion to bifurcate was made in the second
trial. Brown moved to sever the gang enhancement in the first trial, and defendants
joined in the motion, but they did not renew it in the second trial. Although counsel for
Cox mentioned the previous motion in arguing the new trial motion, his stated ground for
the new trial motion was “the issue of the gang evidence.” Counsel cited Albarran and
argued that the gang enhancement was not supported by substantial evidence, because
“two guys walk up, no gang names, no gang signs, no gang graffiti, nothing, two guys
walk up and start shooting.” Counsel also complained that the prosecutor had
represented that such evidence would be presented, but in the end, it was not.
Thus the issue was the sufficiency of the gang evidence, which we review for
abuse of discretion. (See People v. Fuiava, supra, 53 Cal.4th at p. 730.) We find no
error under any standard of review. We agree with the trial court’s rejection of any
suggestion that Albarran was “some type of seminal case” holding that gang evidence is
insufficient as a matter of law unless it includes such facts as “shout-outs” of gang names
or the use of gang signs or graffiti. And we further agree with the trial court that the gang
evidence was sufficient to prove the gang enhancement despite the absence of such
identifying indicia. In giving its reasons for denying the motion for new trial, the trial
court summarized evidence establishing that defendants were three gang members who
went together in a car without license plates to a rival gang area, where one of them
committed the kind of walk-up shooting normally associated with gang shootings.
Based upon the same evidence, we concluded in the previous section of this
Discussion that substantial evidence supported both elements of the gang enhancement.
For the same reason we agree that the gang evidence was properly admitted and not
unduly prejudicial. The trial court did not abuse its discretion or otherwise err in denying
the motion for new trial.
IX. Cumulative error
Anderson contends that the cumulative effect of all the asserted errors was to deny
him a fair trial. Because “[w]e have either rejected on the merits defendant’s claims of
43
error or have found any assumed errors to be nonprejudicial,” we must also reject any
claim of prejudicial cumulative effect. (People v. Sapp (2003) 31 Cal.4th 240, 316.)
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
HOFFSTADT
44