People v. Uy CA3 ( 2013 )

Filed 12/31/13 P. v. Uy CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent, C063037
v. (Super. Ct. No. SF107288B)
RATTANY UY,
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, C063481
v. (Super. Ct. No. SF107288A)
CHANREASMEY PRUM,
Defendant and Appellant.
1
In separate jury trials, defendants Rattany Uy and Chanreasmey Prum were
convicted of first degree murder as active participants in, and for the benefit of, a
criminal street gang. They were also convicted of three attempted premeditated murders,
shooting at an occupied motor vehicle, carrying a loaded firearm by a gang participant,
carrying a concealed firearm by a gang participant, possession of a firearm by a felon (as
to Prum only), and active participation in a criminal street gang.
Of relevance to the issues on appeal, the trial court sentenced defendants as
follows: Uy to life in prison without the possibility of parole for murder plus a
consecutive 10-year prison term on the Penal Code section 186.22 enhancement; and
Prum to life in prison without the possibility of parole for murder and three consecutive
terms of 15 years to life in prison for attempted murder, plus 10 years (count 4) and
additional 15-year-to-life terms (counts 1, 2, 3 and 5) for Penal Code section 186.22
enhancements.
We consolidated the appeals for argument and decision only. In part I we address
Uy’s contentions, and in part II we address Prum’s contentions.
Uy claims (A) a statement he made to police is inadmissible because it was not
voluntary; (B) the trial court erred in giving the jury a “kill zone” instruction because
there was no substantial evidence of the creation of a kill zone; (C) the trial court erred by
treating life without the possibility of parole (LWOP) as the presumptive penalty for the
murder conviction, Uy’s LWOP sentence is erroneous because the probation report and
the trial court did not consider relevant mitigating factors, and Uy’s trial counsel provided
ineffective assistance by failing to object to the deficient probation report and failing to
argue relevant mitigating factors; and (D) the trial court erred in imposing a 10-year
enhancement for benefitting a criminal street gang on the count 1 murder conviction.
We conclude Uy’s contentions lack merit except for his last contention
challenging the 10-year enhancement. Because Uy received a sentence of life without the
possibility of parole on the count 1 murder conviction, and because Penal Code
2
section 186.22, subdivision (b)(1)1 does not increase the penalty for gang-related felonies
punishable by indeterminate sentences, we will modify the judgment by striking the 10-
year enhancement on count 1 imposed pursuant to section 186.22, subdivision (b)(1). We
will affirm the judgment against Uy as modified.
Prum contends (A) the trial court erred in admitting cumulative and irrelevant
character evidence; (B) there was insufficient evidence to establish that members of the
Bloods street gang engage in a pattern of criminal gang activity; (C) the trial court erred
in instructing the jury with CALCRIM No. 372 [defendant’s flight] because there was no
evidence supporting an inference of consciousness of guilt; (D) the jury instruction given
for attempted murder (former CALCRIM No. 600) did not accurately explain the kill
zone theory; (E) there was insufficient evidence that Prum attempted to kill Renee and
her daughters; (F) the trial court erred in failing to instruct the jury on the elements for
carrying a loaded firearm by a gang participant (count 6) and carrying a concealed
firearm by a gang participant (count 7); and (G) the trial court committed various
sentencing errors.
Regarding Prum’s contentions, we agree that the trial court should have instructed
the jury on the elements of carrying a loaded firearm by a gang participant (count 6) and
carrying a concealed firearm by a gang participant (count 7), and that the omission
requires reversal of those convictions. (People v. Cummings (1993) 4 Cal.4th 1233,
1311-1315 (Cummings).) We also agree with some of Prum’s assertions regarding
sentencing error. We will modify the judgment to strike the life sentences imposed
pursuant to section 186.22, subdivision (b)(1) on the convictions for counts 1, 2 and 3, to
strike the 10-year prison term enhancement on the conviction for count 4, and to reflect
1 Undesignated statutory references are to the Penal Code.
3
that Prum is sentenced on the count 5 conviction to a term of 15 years to life in prison.
We will affirm the judgment against Prum as modified.
BACKGROUND
Members of the Bloods street gang consider the area around Louis Park in
Stockton to be part of their gang territory. The Original Bloods and the West Side
Bloods are subsets of the Bloods gang.
Hostility between members of the Bloods and members of the Norteño street gang
erupted during a 2008 New Year’s party with an exchange of words and gunfire. Some
Bloods believed that John Tellez, Jr. (John Jr.), a Norteño, shot at Bloods at the party.
There was another exchange of gunfire on January 25, 2008.
Two weeks later, on February 8, 2008, John Jr. was at Louis Park with family and
friends, including his father’s girlfriend Renee and her children Aaron, Alana and
Marissa. John Jr. wore a red sweater, a red belt with “14” on the belt buckle signifying
the letter “N” for Norteño, red and black shoes, and a red and black hat. Red is the color
associated with the Norteños. Red is also the color associated with the Bloods.
Renee noticed four men walking toward John Jr. One of the men wore a black
hoodie and had a red bandana over his nose and mouth. According to gang expert
Detective Paul Gutierrez, gang members often “posse up” and cover their faces with
bandanas or “mask up” when they commit a crime.
John Jr. recognized the man with the red bandana as “Beast,” someone he knew
from the neighborhood as affiliated with West Side Bloods. At trial, Prum admitted he
was known as “Beast” and was the man in the red bandana.
Prum pulled his bandana down and spoke to John Jr. in a loud and aggressive
voice. He called John Jr. “Little John” and asked “What’s up?” and “Where’s your
4
friends?” Prum told John Jr. “I got you now, you’re slipping”2 and said that John Jr. was
lucky he was with his family otherwise Prum would “blast [John Jr.] right now.” Prum
called out “West Side Bloods” and his companions yelled West Side Bloods slogans.
One of Prum’s companions bobbed up and down, made gang hand gestures, and called
out “West Side Bloods.”
Prum pulled out a MAC-10 type firearm and pointed it at John Jr. Renee ran to
get her children.
John Jr. told Prum there were kids around and they would “handle it” another
time. According to John Jr. a gang rule dictated that gang members do not handle
“business” when family, especially children, were around. Prum told John Jr. and his
group to get out of the park. John Jr.’s father said they would leave immediately. Prum
and his companions walked away.
John Jr. did not yell anything or challenge anyone as he left, and neither did
anyone from his group. Although John Jr. had a loaded nine-millimeter semiautomatic
handgun on his person, he did not pull out his gun during the confrontation with Prum.
John Jr.’s group ran to their cars and left the parking lot quickly. Renee’s son
Aaron sat in the front passenger seat of Renee’s car, while her daughters Alana and
Marissa sat in the backseat. Gunfire erupted as the line of cars drove off. John Jr. heard
gunshots coming from an area in the park with picnic tables and saw muzzle flashes
where he had seen Prum and his companions walking. The shooters aimed at the fleeing
cars while running alongside or toward the cars. John Jr.’s father heard close to a dozen
gunshots from what sounded like three guns and saw muzzle flashes from inside the park.
2 According to Detective Gutierrez, “caught slipping” describes situations where a gang
member is vulnerable to attack by rivals, such as where he or she is confronted outside of
his or her gang’s territory.
5
After he heard gunshots, John Jr. grabbed his gun and fired 12 or 14 shots at the
people in the park. After he fired his gun, John Jr. heard more than 10 shots coming back
toward him.
A bullet consistent with a nine-millimeter Luger cartridge pierced the driver-side
door of Renee’s car. The bullet perforated Aaron’s left lung and caused him to bleed to
death. A criminalist opined that the bullet that killed Aaron was most likely fired from a
nine-millimeter semiautomatic pistol consistent with a MAC-type firearm. Prum did not
dispute that his bullet killed Aaron. A bullet also wounded Renee in her left arm.
Ballistics evidence and witness testimony showed that five firearms were used
during the February 8 shooting: two nine-millimeter guns, a .45-caliber semiautomatic
firearm, and two .38-caliber revolvers.
John Jr. and his father identified Prum from a photographic lineup. John Jr. also
told police “Beast” was the person who confronted him at the park. A search of two
addresses associated with Prum yielded a red bandana and albums containing
photographs of Prum and others displaying gang signs and wearing red clothing. Police
did not find a MAC-10 firearm.
Renee told police detectives that “Rattalack” may have been present at the Louis
Park shooting. Detective Michael George determined that “Rattalack” was a name
associated with Rattany Uy. Detectives interviewed Uy on March 20, 2008. The entire
interview was video- and audio-recorded, and a redacted version of the recording was
played to the jury at Uy’s trial.
Uy told detectives the following: Uy and Prum drove by Louis Park and saw
people they believed to be Norteños at the park. Uy and Prum then drove to Doray Court
to recruit their “homies.” They saw Michael Garduno and Deandre Cole. Prum told
Garduno and Cole there were Norteños at the park and to get their guns. Garduno got a
nine-millimeter gun. Cole had a revolver. Uy had a .22-caliber gun. Prum procured a
nine-millimeter “submachine gun” and changed into a black hoodie. Prum, Uy, Cole and
6
Garduno armed themselves because if the Norteños at the park “trip[ped]” the men would
shoot the Norteños. As the men drove to the park they discussed shooting and separating
when the shooting began. Prum and Cole said they were going to shoot the Norteños at
the park because of the New Year’s shooting. Prum walked up to the group in the park
and drew his gun. He wore a red bandana around his neck. He was “talkin’ up gang
signs,” called out “West Side Bloods” and said that the Norteños shot at the Bloods on
New Year’s. Uy, Garduno and Cole stood behind Prum. The other people walked away
and Prum started walking back. Cars then began to leave. Uy saw Renee and Aaron get
into their car. Prum shot first, aiming at the cars that were leaving, then Garduno and
Cole ran up and fired their guns multiple times. Uy ran while shooting. He shot up in the
air and did not aim at the cars.
Uy was taken into custody following his March 20 interview. He subsequently
admitted to Detective Gutierrez that he stood behind some picnic tables and used a .45-
caliber gun during the Louis Park shooting.
Detective Gutierrez testified at Uy and Prum’s trials as an expert on Asian
criminal street gangs in Stockton. The detective opined that the Bloods and, in particular,
West Side Bloods and Original Bloods were criminal street gangs. Bloods have
identifiable hand signs and symbols, and Original Bloods and West Side Bloods members
committed crimes together. If an individual satisfied two out of nine validation criteria
within a five-year period, he or she was considered a documented gang member by the
Stockton Police Department. The criteria included self-admission, associating with a
documented gang member or documented gang members, participation in a gang-related
crime, having “gang indicia,” and information from citizen informants that the person
was a gang member. According to Detective Gutierrez, Prum was an active participant in
the Original Bloods because he associated with other documented members of the gang,
had admitted to being a member of the gang, had participated in gang-related crimes with
other Original Bloods members, and police found photographs of Prum that contain
7
indicia of gang membership. Prum’s moniker was “Beast.” He was also known as
“Damu” which means blood.
Detective Gutierrez opined that Uy was also an active Original Bloods member.
This opinion was based on self-admission and participation in gang-related activities. In
addition, police had observed Uy associating with admitted or documented Original
Bloods members. The People also presented photographs showing Uy throwing gang
signs and wearing apparel with gang indicia.
According to Detective Gutierrez, Cole was a documented Original Bloods
member. Detective Gutierrez opined that Garduno did not meet the criteria to be
considered an active member of a criminal street gang, but Garduno was a Bloods
“associate.”
Detective Gutierrez further opined that the Louis Park shooting was gang-related
activity. In his view, defendants worked together to commit the Louis Park crimes for
the benefit of, at the direction of or in association with a criminal street gang with the
specific intent to promote, further or assist in criminal activity by gang members. This
opinion was based on the following: the Bloods blamed John Jr. for shooting at them on
New Year’s; the shooters called out “West Side Bloods” during the confrontation with
John Jr.; the shooters and the Bloods gained notoriety in the community because of the
shooting; the Louis Park shooting intimidated people in the community; ballistics
evidence showed that the same weapon was used at Louis Park and at the prior
January 25 shooting; and three documented Original Bloods members participated in the
February 8 shooting.
Prum testified at his trial that he shot at John Jr. in self-defense. He provided the
following narrative: On February 8, 2008, Prum saw John Jr. at Louis Park when Prum
and Uy drove through the park. Prum and John Jr. had previously socialized together, but
on that day there were problems between them. Prum believed John Jr. posed a danger to
him and the neighborhood based on the New Year’s and January 25 shootings. Prum and
8
Uy planned to tell John Jr. to leave the park. Because he believed John Jr. might be
armed, Prum asked Uy if Uy had a gun. Uy obtained a .45-caliber gun. Prum told Uy
that Prum also needed a gun and they needed “backup.” Uy recruited Cole and Garduno.
Prum told Cole and Garduno they were going to the park to “punk” John Jr. and kick him
out of the park. Cole and Garduno each had a .38-caliber revolver. Prum called a friend
for a gun and picked up a MAC-10 for himself 10 to 20 minutes later. Prum made sure
the weapon was “fully loaded” in the clip. Defendants then returned to the park. Prum
parked on Pixie Drive so that his car would not be detected. He carried the MAC-10 and
wore a red bandana over his face to conceal his identity. He walked up to John Jr. and
told John Jr. “this [was a] West Side Blood neighborhood” and John Jr. had to leave.
John Jr. indicated he would leave. John Jr. did not pull out a gun. Prum saw people
running to their cars. Prum and his cohorts then walked back in the direction of his car.
When he reached an area where picnic tables were located, Prum heard gunshots from
behind him. He ducked down. He saw Garduno and Cole firing towards Monte Diablo
Avenue. He also saw muzzle flashes on top of a sportscar on Monte Diablo Avenue.
Prum pointed his MAC-10 at the sportscar and fired four to six times. After firing his
weapon, Prum ran to his car with Uy, Cole and Garduno following. Prum heard gunshots
as he ran to his car. He saw Uy firing his weapon. Prum dropped off Uy, Cole and
Garduno at Doray Court and went to a friend’s house a few blocks from the park, where
he hid for an hour or so. Thereafter, Prum left for Jackson Rancheria Casino because he
“wanted to get away.”
In separate jury trials, Prum and Uy were convicted for the first degree murder of
Aaron (§ 187, subd. (a) -- count 1); on that count the jury also found true, among other
things, that the murder was committed by active participants in a criminal street gang to
further the activities of the gang (§ 190.2, subd. (a)(22)) and that the murder was
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In addition,
Prum and Uy were convicted on three counts for the attempted premeditated murder of
9
Renee, Alana and Marissa (§§ 187, subd. (a), 664, subd. (a) -- counts 2, 3, 4), shooting at
an occupied motor vehicle (§ 246 -- count 5), carrying a loaded firearm by a gang
participant (former § 12031, subd. (a)(2)(C), now § 25850, subd. (c)(3) -- count 6),3
carrying a concealed firearm by a gang participant (former § 12025, subd. (b)(3), now
§ 25400, subd. (c)(3) -- count 7), possession of a firearm by a felon (former § 12021, now
§ 29800 [as to Prum only] -- count 8) and active participation in a criminal street gang
(§ 186.22, subd. (a)-- count 9).
As relevant to this appeal, for the count 1 murder conviction, the trial court denied
Uy’s request that he be sentenced to 25 years to life in prison, and instead sentenced Uy
to life in prison without the possibility of parole. The trial court also imposed a
consecutive 10-year prison term on count 1 pursuant to the section 186.22,
subdivision (b)(1) enhancement.
And as relevant to this appeal, the trial court sentenced Prum to life in prison
without the possibility of parole for the count 1 murder conviction; three consecutive
terms of 15 years to life for the count 2, 3 and 4 attempted murder convictions; a
consecutive five-year term for the count 5 conviction for shooting at an occupied vehicle;
and concurrent two-year terms for the convictions on counts 6 [loaded firearm], 8 [felon
with firearm] and 9 [gang participation]. The trial court also imposed 25-year-to-life
terms for enhancements on counts 1, 2 and 5, which are not challenged in this appeal,
plus 10 years for a section 186.22, subdivision (b)(1) enhancement on count 4, and
minimum 15-year terms for section 186.22, subdivision (b)(1) enhancements on counts 1,
2, 3 and 5.
3 The Legislature reorganized sections 12000 et seq., the deadly weapon statutes.
(Stats. 2010, ch. 711, introduction.) Effective January 1, 2012, the prohibitions contained
in sections 12021, 12025 and 12031 are found in sections 29800, 25400 and 25850,
respectively. (Stats. 2010, ch. 711, §§ 4, 6.) Because the parties refer to the statutes by
their former section numbers, we do the same.
10
DISCUSSION
I
A
Uy claims the statement he made to detectives on March 20, 2008, was
involuntary and the trial court erred in denying his motion to suppress the statement.
Uy asserts his statement was involuntary for various reasons.4 He says Detective
Michael George and Detective Crescenciano Villanueva impliedly promised him
leniency by assuring him he would not be arrested if he was honest. Uy notes that the
detectives did not say until near the end of the interview that the prosecutor would decide
whether Uy could go home. Uy also claims Detectives George and Villanueva lied to
him. He points to the detectives’ assurances that the interview was near its end even
though the detectives allegedly had no intention of stopping their questioning.
In addition, Uy claims Detectives George and Villanueva continued to interrogate
Uy even after he became ill and emotionally distraught. He further asserts that he was
only 17 years old and was small in size compared to the interrogating detectives. And the
interrogation continued for over eight hours, albeit with breaks.
“An involuntary confession may not be introduced into evidence at trial.
[Citation.] The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant’s confession was voluntarily made. [Citations.] In determining
whether a confession was voluntary, ‘ “[t]he question is whether defendant’s choice to
confess was not ‘essentially free’ because his [or her] will was overborne.” ’ [Citation.]
Whether the confession was voluntary depends upon the totality of the circumstances.
[Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 169.) No single factor is
dispositive. (People v. Williams (2010) 49 Cal.4th 405, 435-436.) Relevant
4 Much of Uy’s argument in this regard is without citation to the record.
11
considerations are “ ‘ “the crucial element of police coercion [citation]; the length of the
interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s
maturity [citation]; education [citation]; physical condition [citation]; and mental
health.” ’ ” (Id. at p. 436.) “ ‘ “[T]he courts have prohibited only those psychological
ploys which, under all the circumstances, are so coercive that they tend to produce a
statement that is both involuntary and unreliable.” [Citation.]’ ” (Ibid.)
On appeal, the trial court’s factual findings as to the circumstances surrounding a
defendant’s statement, including the characteristics of the defendant, are upheld if
supported by substantial evidence, but the trial court’s finding as to the voluntariness of
the confession is subject to independent review. (People v. Carrington, supra, 47 Cal.4th
at p. 169; People v. Williams, supra, 49 Cal.4th at p. 436.) Whether coercive police
activity was present, whether certain conduct constituted a promise and, if so, whether the
promise operated as an inducement are also reviewed independently. (People v. Jones
(1998) 17 Cal.4th 279, 296.)
“ ‘ “Once a suspect has been properly advised of his [or her] rights, he [or she]
may be questioned freely so long as the questioner does not threaten harm or falsely
promise benefits. Questioning may include exchanges of information, summaries of
evidence, outline of theories of events, confrontation with contradictory facts, even
debate between police and suspect. . . . Yet in carrying out their interrogations the police
must avoid threats of punishment for the suspect’s failure to admit or confess particular
facts and must avoid false promises of leniency as a reward for admission or
confession. . . .” [Citation.]’ ” (People v. Carrington, supra, 47 Cal.4th at p. 170.) A
confession is inadmissible if it was elicited by an express or implied promise of benefit or
leniency. (People v. Cahill (1994) 22 Cal.App.4th 296, 311 (Cahill).)
Although Uy contends Detectives George and Villanueva promised not to arrest
Uy if he was honest with them, that assertion is not supported by the record.
12
Detective George accused Uy of lying about never having been in Prum’s car, and
Uy responded, “If you got somethin’ on me that’s something I don’t know, if you want
you can take me to jail . . . .” Detective George said he did not want to take Uy to jail but
wanted to find out what happened to Aaron.
Regarding his whereabouts on February 8, Uy admitted being in Prum’s car but
denied being at Louis Park. He insisted to the detectives that he was being honest with
them. Uy then asked:
“[Uy]: Am I goin’ to jail?
“[Detective]: What’s that?
“[Uy]: Am I goin’ to jail?
“[Detective]: I have no intention of puttin’ you in jail.
“[Uy]: Oh.
“[Detective]: What we -- what we -- what we need to do is straighten your part
out okay? So you guys are at White Lane, he sees your baby, you get in his car, he’s
gonna go get some beer?
“[Uy]: Yeah.”
After giving the detectives more details about what he did with Prum on
February 8 and who Prum was with that evening, Uy remained steadfast in denying his
involvement in the park shooting. Uy again asked the detectives if they were going to
arrest him, and the detectives again responded in the negative.
“[Uy]: I’m scared right now.
“[Detective]: Don’t be scared, okay.
“((Crosstalk))
“[Detective]: As long as you’re honest with us.
“((Crosstalk))
“[Uy]: Am I gettin’ locked up if I be honest with you?
13
“[Detective]: I -- I’m -- I’m gonna tell ya totally honest. My intention right now
is not to lock you up.
“[Uy]: Okay.
“[Detective]: But Rattany, 100%, that’s not my intention is to lock you up.
“[Detective]: Rattany, you know, it -- it takes a big -- it takes a big man to sit
there and tell us the truth,
“((Crosstalk))
“[Uy]: Well, I’m not gonna snitch on anyone now, okay.
“[Detective]: We’re not talkin’ -- we’re not tellin’ -- we don’t tell people what
you’ve told us.
“[Uy]: Oh, okay.
“[Detective]: Okay, so don’t be afraid of them.
“((Crosstalk))
“[Detective]: You know, it’s -- it’s.
“[Uy]: Cuz I live right there by. [¶] . . . [¶]
“[Detective]: Beast already told us he was in the car with you. I mean he already
told us that, that’s how we knew that. [¶] . . . [¶]
“[Uy]: But I wasn’t over there at the time though. [¶] . . . [¶]
“[Detective]: Let’s go get those pictures. Just take a little -- just hang out.
“((Crosstalk))
“[Uy]: Well, am I going to be locked up, man?
“[Detective]: Well, we want you to be honest with us okay? Okay we’re gonna
show you some pictures, be back in a few minutes okay?”
Subsequently, Uy admitted that he and Prum went to Doray Court, near Louis
Park, after 5 p.m. on February 8. Uy also identified the gun Prum had on the night of the
shooting. However, Uy continued to deny that he was at the park. Detective George
urged Uy to tell the truth. Uy then asked:
14
“[Uy]: Yes. And I’m not gettin’ locked up if I tell you?
“[Detective]: I can tell you this Rattany, I need you to be honest.
“[Uy]: Mm-hm.
“[Detective]: Okay?
“[Uy]: Mm-hm.
“[Detective]: You have to be totally honest with us. [¶] . . . [¶] . . . No
discrepancies, okay? You can’t make nothin’ up.
“[Uy]: Uh-uh.
“[Detective]: Here Rat -- Rattany, we don’t make promises okay? [¶] . . . [¶] It’s
from your -- your words to our ears and we go right to the DA and tell them what you --
that you -- ‘he’s bein’ honest now he’s tellin’ us this. He’s bein’ truthful.’ That’s what
we’re gonna do. [¶] . . . [¶] Okay that’s what we’re gonna do for you. [¶] . . . [¶] So we
can’t -- we can’t be any more honest than that. That’s as honest -- we’re tellin’ you
everything -- the truth. [¶] . . . [¶]
“[Uy]: But you said if I tell you the truth I get to leave right?
“[Detective]: No. I said that you need to tell us the truth. Okay, I said -- I told --
told you my intentions were not to lock you up. [¶] . . . [¶] Okay. Okay. Like my
partner said we -- in a case like this -- this -- just like this. [¶] . . . [¶] You’re gonna tell
us --you’re gonna tell us the truth this time around right? [¶] . . . [¶] Okay. Then we’re
gonna tell the District Attorney. [¶] . . . [¶] What you told us. And then that person will
make the decision what happens to you, okay. Whether you go home tonight or you have
to go somewhere else, okay.
“[Detective]: And we -- we just called Rattany -- we just called the District
Attorney so she’s on her way over here. [¶] . . . [¶] Okay. But I can’t go to her and say,
‘Well I think he might say this or I think he might say that.’ She’s gonna say, ‘What did
he tell you? And he better be tellin’ you the truth.’ That’s what she’s gonna tell me. [¶]
. . . [¶] So I can’t go to her with a lie.
15
This record indicates that the detectives did not make any promise of leniency.
Detective George initially said he did not want to take Uy to jail but wanted to find out
what happened to Aaron. The comment was not a promise of leniency but instead a
statement of the detective’s intent at that moment in time. At that point in the interview
there was no basis for an arrest because Uy denied being present at the park on the day of
the shooting. In fact, Uy continued to deny he was at the park for another 85 pages of the
transcript. During that portion of the interview, Detective Villanueva also believed Uy
had not yet provided information to justify his arrest. The detective was still hoping that
Uy could provide witness information about the shooting.
The detectives subsequently told Uy that they would advise the prosecutor of Uy’s
truthfulness. But that was not a promise of leniency. (People v. Boyde (1988) 46 Cal.3d
212, 239 [officer repeatedly told defendant he had no authority to make a promise of
leniency, but could only pass information to the district attorney]; People v. Ramos
(2004) 121 Cal.App.4th 1194, 1203 [officer told defendant he would bring defendant’s
statements to the district attorney’s office for consideration].) When Uy asked if he was
going home that day, Detective George reiterated that he could not make Uy any
promises.
The detectives’ statements to Uy are in sharp contrast with those made to the
defendant in People v. Vasila (1995) 38 Cal.App.4th 865 (Vasila), cited in Uy’s opening
brief. In Vasila, investigators told the defendant they would not involve the U.S.
Attorney and, therefore, no federal charges would be brought and the defendant would be
released from custody that day if he told investigators where certain illegal guns were
hidden. (Id. at pp. 870, 872, 874) The defendant was released from custody when he
revealed the location of the guns. (Id. at 872.) The appellate court in Vasila held that the
investigators promised the defendant some benefit beyond that which ordinarily results
from being truthful, and such promises clearly motivated the defendant to lead
investigators to the location of the weapons. (Id. at pp. 874-877.) Here, however, the
16
detectives did not promise that they would not arrest Uy. In fact, Uy knew he could be
arrested if he was one of the shooters.
Uy’s reliance on People v. Johnson (1969) 70 Cal.2d 469 (Johnson) and Cahill,
supra, 22 Cal.App.4th 296 is also misplaced. In Johnson an investigator for the
prosecutor told the defendant that his statement was not admissible in court and was
merely “an investigative lead, [or] aid,” and police officers told the defendant he was
charged with first degree murder for which he could get the gas chamber and if he did not
offer an explanation for how the victim died the jury might find malice. (Johnson, supra,
70 Cal.2d at pp. 474, 475-476, 478, italics omitted.) The California Supreme Court said
the statements by the authorities implied that the defendant might avoid a first degree
murder conviction by cooperating with the police. (Id. at p. 479.) “To someone
unskilled and uncounseled in the law it might have offered a hope that since no money
was taken in the robbery and if, as [the defendant] claimed he did not do the shooting,
that he might be cleared of any serious charges.” (Ibid.) Coupled with defective
Miranda warnings and the defendant’s youth and lack of criminal history, the Supreme
Court concluded the statements by law enforcement officials rendered the defendant’s
confession involuntary. (Id. at pp. 474, 478-479.)
In Cahill, the interrogating detectives implied that unless the defendant admitted
he was in the victim’s house and denied that he premeditated the murder, he would be
tried for first degree murder and be eligible for the death penalty. (Cahill, supra, 22
Cal.App.4th at pp. 314-315.) This implication was reinforced by a materially misleading
account of California law. (Id. at p. 315.) A detective also made repeated remarks about
helping the defendant and there was a suggestion that the detective would testify
concerning the defendant’s remorse if he confessed. (Id. at pp. 314-316.) Based on those
circumstances, this court held the detectives’ remarks amounted to a promise of leniency
or a threat. (Ibid.)
17
But here, Uy does not contend that he was improperly advised of his Miranda
rights, or that he did not knowingly and intelligently waive those rights. In addition,
Detectives George and Villanueva did not tell Uy he would escape prosecution even if he
was involved in the shooting. There was no suggestion of a lighter sentence or reduced
criminal culpability if Uy talked to the detectives. There was also no misrepresentation
concerning California murder law.
As for Uy’s contention that he was “unskilled and uncounseled in the law,” the
claim is forfeited because it was not raised below. (People v. Williams, supra, 49 Cal.4th
at p. 435 [elements of a voluntariness claim that were not raised at trial are forfeited].)
Uy’s contention that he was small in size compared to the interrogating detectives --
implying that the detectives’ size had a coercive effect -- was also not raised at trial and is
likewise forfeited. In any event, the record does not support either factual claim.
Although Uy was only 17 at the time of the interview, he was familiar with the juvenile
justice system. Uy had been a gang member since he was nine or 10 years old and he
was experienced enough to demand that his Miranda rights be read to him. And nothing
in the record shows that Detective George or Detective Villanueva used their size to
intimidate Uy during the March 20 interview.5
Uy further asserts that his March 20 statement was involuntary because Detectives
George and Villanueva lied to him, but the assertion lacks merit.
“Deception does not undermine the voluntariness of a defendant’s statements to
the authorities unless the deception is ‘ “ ‘of a type reasonably likely to procure an untrue
statement.’ ” ’ [Citations.]” (People v. Williams, supra, 49 Cal.4th at p. 443.) “ ‘Police
officers are . . . at liberty to utilize deceptive stratagems to trick a guilty person into
confessing.’ ” (People v. Mays (2009) 174 Cal.App.4th 156, 165.) For example, in
5 We granted the Attorney General’s application to transmit People’s exhibit No. 186 to
this court, and we reviewed the video recording of Uy’s interrogation.
18
People v. Thompson (1990) 50 Cal.3d 134, 167, the California Supreme Court held that
interrogating officers’ false statements to the defendant that police found physical
evidence linking him to the victim’s death did not render the defendant’s confession
involuntary. (Id. at pp. 167, 170.)
Detective George and Detective Villanueva did make false statements to Uy
during the March 20 interrogation. They told Uy witnesses saw him at Louis Park; that
Prum confessed about what he did and told police Uy was with him; that there was a
surveillance videotape from T and M Market showing Uy in Prum’s car; that police knew
Uy did not do anything; that the detectives would not tell anyone what Uy told them; that
more than one car was hit by bullets; and that the interrogation was almost over. But
there is no evidence that those statements by the detectives prompted Uy to make a false
statement, especially when Uy already admitted being in Prum’s car and continued to
deny being at Louis Park for a considerable period of time. Our review of the record
indicates that none of the detectives’ false statements caused Uy to admit that he was in
Prum’s car on the day of the shooting, that he stood behind Prum during the confrontation
with John Jr., or that he had a gun and fired it. Instead, Uy made self-incriminating
statements in response to the detectives’ requests that Uy tell the truth, their suggested
possible explanations for what happened, their statements that Uy’s story was
improbable, and their suggestion that if Uy shot a .22-caliber gun, as Uy claimed, it was
not his gun that killed Aaron. (People v. Williams, supra, 49 Cal.4th at p. 444 [absent
improper threats or promises, law enforcement officers may suggest possible
explanations of the events, offer defendant an opportunity to provide the details of the
crime, and urge the defendant to tell the truth].) On this record, the trial court did not err
in finding no coercive police activity.
Uy also claims that his will was overborne because Detective George and
Detective Villanueva continued to question him after he became ill. The trial court
reviewed the videotape of Uy’s March 20 statement and found that Uy was ill as a result
19
of stress but that the detectives did not exploit Uy’s illness. Instead, the trial court found
that the detectives were concerned about Uy, bringing him food and drinks and giving
him breaks. The trial court noted that later in the interview Uy appeared composed and
calm and directly answered the detectives’ questions. The record supports the trial
court’s findings.
Uy further contends that his March 20 statement was involuntary because
Detective George and Detective Villanueva interrogated him for over eight hours.
“A police interrogation that is prolonged may be coercive under some
circumstances.” (People v. Carrington, supra, 47 Cal.4th at p. 175.) Here, although the
interrogation lasted eight hours, police brought Uy water, soda and food. They
repeatedly offered to bring Uy more water, asked if he needed to use the restroom, took
him to the restroom when he asked, and took multiple breaks during the eight-hour
period. Under the circumstances the length of the interrogation did not render Uy’s
March 20 statements involuntary.
Based on the totality of the circumstances, Uy’s March 20, 2008, statement to
police was not the product of police coercion, and the trial court correctly allowed its
introduction into evidence at the trial.
B
Uy contends the trial court committed reversible error in giving a kill zone
instruction in connection with the attempted murder counts (counts 2, 3 and 4) because
there was insufficient evidence to establish the creation of a kill zone. He asserts that the
shots from defendants’ guns were fired from hundreds of feet away, only one bullet
struck one car out of many in the caravan leaving the park, and there was no evidence
that John Jr.’s death was intended to be achieved by killing everyone in the cars fleeing
the park. He also claims the prosecutor conceded during closing argument that no one
intended to kill any person in Renee’s car.
20
To be guilty of attempted murder, the defendant must intend to kill the alleged
victim, not someone else. (People v. Bland (2002) 28 Cal.4th 313, 328 (Bland);
People v. Smith (2005) 37 Cal.4th 733, 739, 743 (Smith).) Such intent may be inferred
where the defendant uses lethal force calculated to kill any person within an area around
the primary target (a kill zone) as a means of ensuring the primary target’s death, or
where the defendant intentionally creates a kill zone “despite the recognition, or with
acceptance of the fact, that a natural and probable consequence of that act would be that
anyone within that zone could or would die.” (People v. Adams (2008) 169 Cal.App.4th
1009, 1021-1023.) In such circumstances, the defendant’s intent to kill the primary target
is concurrent with the intent to kill those within the kill zone. (Id. at p. 1021.) “ ‘For
example, an assailant who places a bomb on a commercial airplane intending to harm a
primary target on board ensures by this method of attack that all passengers will be killed.
Similarly, consider a defendant who intends to kill A and, in order to ensure A’s death,
drives by a group consisting of A, B, and C, and attacks the group with automatic weapon
fire or an explosive device devastating enough to kill everyone in the group. The
defendant has intentionally created a “kill zone” to ensure the death of his primary
victim, and the trier of fact may reasonably infer from the method employed an intent to
kill others concurrent with the intent to kill the primary victim. When the defendant
escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets or
an explosive device, the factfinder can infer that, whether or not the defendant succeeded
in killing A, the defendant concurrently intended to kill everyone in A’s immediate
vicinity to ensure A’s death. . . . Where the means employed to commit the crime
against a primary victim create a zone of harm around that victim, the factfinder can
reasonably infer that the defendant intended that harm to all who are in the anticipated
zone.’. . . [Citation.]” (Bland, supra, 28 Cal.4th at pp. 329-330.)
In reviewing Uy’s claim that there is insufficient evidence of a kill zone, we must
view the evidence in the light most favorable to the judgment and presume in support of
21
the judgment the existence of every fact the jury could reasonably deduce from the
evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).) We conclude the
jury could reasonably find the creation of a kill zone around John Jr. and that Renee and
her daughters were within the kill zone.
At the park, Prum drew his gun on John Jr. Prum “talk[ed] up gang signs,” called
out “West Side Bloods,” and talked about Norteños shooting at Bloods on New Year’s.
Uy saw Renee and Aaron get into their car. Renee’s car, which was in front of the car in
which John Jr. was a passenger, was similar in appearance and traveling close to
John Jr.’s car. Gunfire erupted soon after John Jr. got into his car.
Prum and Uy had semiautomatic firearms. Prum shot at the departing cars first.
Uy shot five or six times at the cars. The jury obviously did not believe Uy’s statement
that he did not aim at the fleeing cars; it found Uy guilty on all counts. We do not disturb
the jury’s determinations concerning witness credibility. (Ochoa, supra, 6 Cal.4th at
p. 1206.) Moreover, Garduno fired 8 shots and Cole emptied his revolver. Altogether,
defendants fired more than a dozen gunshots toward the fleeing cars. Additionally,
witnesses saw the shooters running toward or alongside the departing cars while
shooting, aiming at the cars as they went by.
Substantial evidence supports the jury’s finding, beyond a reasonable doubt, that
Uy intended to kill everyone within the kill zone created by his gunfire, including Renee
and her daughters. Accordingly, the trial court did not err by giving the kill zone
instruction. The fact that only one bullet hit one car leaving the park does not negate
Uy’s intent to kill. (Smith, supra, 37 Cal.4th at p. 742 [fact that bullet missed its mark
does not show lack of intent to kill]; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690
[fact that victim escaped death because of shooter’s poor marksmanship does not
necessarily establish a less culpable state of mind].) People v. Pham (2011) 192
Cal.App.4th 552, 559, cited in Uy’s reply brief, does not help Uy because it is not a kill
zone case.
22
Uy claims the prosecutor conceded that Uy did not intend to kill the people in
Renee’s car. Not so. In the context of discussing the doctrine of transferred intent, the
prosecutor said she did not believe Uy intended to kill Aaron, but that Uy was still
culpable for shooting at the car. Under the doctrine of transferred intent, a person who
intends to kill is guilty of the murder of all individuals actually killed even if those people
were not the intended target. (Bland, supra, 28 Cal.4th at pp. 321-324.) The doctrine of
transferred intent applies to count 1, the murder of Aaron. The prosecutor’s comment did
not concede any point concerning the charges for attempted murder because the doctrine
of transferred intent does not apply to attempted murder. (Id. at pp. 327-328.)
Uy’s claim of instructional error lacks merit.
C
Uy next contends (1) the trial court erred by treating LWOP as the presumptive
penalty for the murder conviction, (2) Uy’s LWOP sentence is erroneous because the
probation report and the trial court did not consider relevant mitigating factors, and
(3) Uy’s trial counsel provided ineffective assistance by failing to object to the deficient
probation report and failing to argue relevant mitigating factors. We address each
contention in turn.
1
Uy argues the trial court erred by treating LWOP as the presumptive penalty under
section 190.5, subdivision (b). Subdivision (b) provides that when a defendant at least 16
years old but less than 18 years old is found guilty of murder in the first degree with one
or more special circumstances, the penalty “shall be confinement in the state prison for
life without the possibility of parole or, at the discretion of the court, 25 years to life.”
(§ 190.5, subd. (b).) Uy argues that section 190.5, subdivision (b) does not mandate an
LWOP sentence, but instead gives the trial court discretion to impose LWOP as a more
severe sentence. Uy insists People v. Guinn (1994) 28 Cal.App.4th 1130, 1141 (Guinn),
23
which held that LWOP is the presumptive punishment under section 190.5,
subdivision (b), was wrongly decided.
The portion of the record cited by Uy in his opening brief does not show that the
trial court “acted under the compulsion of Guinn” or treated LWOP as the presumptive
penalty. Although Uy’s trial counsel stated, in the context of discussing whether John Jr.
should be subject to recall as a trial witness, that Uy would be sentenced to LWOP if
convicted of special circumstance murder, Uy’s section 190.5, subdivision (b) motion did
not reference Guinn or address whether LWOP is the presumptive punishment. Uy
simply asked the trial court to exercise its discretion to sentence him to a term of 25 years
to life rather than LWOP. Uy’s counsel and the prosecutor did not mention a
presumptive penalty during the sentencing hearing and the probation report does not state
that LWOP is the presumptive penalty for the murder count. The trial court recognized it
had discretion to sentence Uy to a term of 25 years to life.
Our examination of the record does not disclose any statement by the trial court
suggesting that it treated LWOP as the presumptive penalty. Accordingly, we need not
discuss Uy’s contention that Guinn was wrongly decided. For the same reason, we do
not consider the cases which Uy subsequently urged are applicable, Miller v. Alabama
(2012) ___ U.S. ___ [183 L.Ed.2d 407] (Miller) and People v. Moffett (2012) 209
Cal.App.4th 1465, review granted Jan. 3, 2013, S206771 (Moffett).6
6 Uy sought leave to file a supplemental opening brief to address the application of
Miller, supra, 183 L.Ed.2d 407 to his case. The United States Supreme Court in Miller
held that the Eighth Amendment of the federal Constitution forbids a sentencing scheme
that mandates LWOP for juvenile offenders. (Id. at p. 424.) We denied Uy’s application
because the factual premise of his claim, that the trial court treated LWOP as a
presumptive penalty under section 190.5, subdivision (b), is not supported by the record.
After we denied his application, Uy submitted a letter calling our attention to Moffett,
supra, 209 Cal.App.4th 1465. Moffett is factually distinguishable because the sentencing
court in that case applied a presumption in favor of an LWOP sentence; in any event, the
California Supreme Court granted review in Moffett. During oral argument, counsel for
24
2
Uy further asserts that his LWOP sentence is erroneous because the probation
report did not evaluate, and the trial court did not consider, the mitigating factors set forth
in section 190.3 and rule 4.423 of the California Rules of Court (rule 4.423). We
disagree.
The probation report listed relevant aggravating and mitigating factors. It said Uy
voluntarily acknowledged wrongdoing prior to arrest and that his prior performance on
probation was satisfactory. It mentioned his age, his active participation in the February
8 shooting, his gang affiliation, and that he had no prior felony conviction. The probation
officer also described the circumstances of the crimes for which Uy was convicted.
Uy’s section 190.5, subdivision (b) motion argued various mitigating
circumstances justifying a less severe sentence, namely that Uy was only 17 at the time of
the shooting; he had no prior juvenile record of violent crimes; his involvement in the
shooting was minimal compared to the other defendants; Cole and Garduno received
sentences of 30 years eight months and 26 years; Uy did not know that Prum intended to
shoot at anyone; Uy did not want to be at the park and did not intend to hurt anyone;
although he was a documented Bloods member, Uy was not “jumped into” the gang; Uy
aimed five to six feet over the top of the victims’ cars; and Uy acknowledged
wrongdoing, cooperated with the police and would have testified for the prosecution
against the other defendants. At the sentencing hearing, Uy’s counsel referenced Uy’s
lack of premeditation, Uy’s age and immaturity, Uy’s cooperation with law enforcement,
and a plea for leniency by the mother of Uy’s child.
Uy argued the application of Miller, agreed that the trial court considered Uy’s youth in
exercising its discretion, and declined to speculate on the impact section 1170,
subdivision (d)(2) would have on Uy’s ultimate sentence. The Attorney General argued
that because section 1170, subdivision (d)(2) permits a petition for recall and
resentencing after 15 years, LWOP for juveniles has been eliminated. We need not
decide the application of section 1170, subdivision (d)(2) here.
25
After considering Uy’s motion and argument along with the probation report, the
trial court decided not to sentence Uy to 25 years to life. The trial court concluded that
the February 8 shooting was not the result of “youthful folly,” lack of reflection, being at
the wrong place at the wrong time, or accident. Rather, the trial court found that Uy
acted with premeditation and deliberation and a “willingness to do violence.”
The trial court’s decision was based on the “totality of [the] circumstances” and it
considered relevant section 190.3 and rule 4.423 mitigating factors in sentencing Uy.
3
Uy next asserts ineffective assistance of counsel because his trial counsel failed to
object to the probation report, failed to object to the trial court’s alleged failure to apply
the mitigating factors set forth in section 190.3 and rule 4.423, and failed to argue certain
section 190.3 factors in his sentencing motion.
It is Uy’s burden on appeal to show that he was denied effective assistance of
counsel and is entitled to relief. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) To
prove ineffective assistance of counsel, Uy must show that considering all the
circumstances his “counsel’s representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.” (Strickland v. Washington
(1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693-694]; In re Avena (1996) 12 Cal.4th 694,
721.) In addition, Uy must affirmatively establish prejudice by showing “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra,
466 U.S. at p. 694 [80 L.Ed.2d at p. 698]; In re Avena, supra, 12 Cal.4th at p. 721.) “[A]
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” (Strickland v. Washington, supra, at p. 689
[80 L.Ed.2d at p. 694].) Moreover, we need not examine the performance prong of the
test before examining whether Uy suffered prejudice as a result of counsel’s alleged
26
deficiencies. (Id. at p. 697 [80 L.Ed.2d at pp. 699-700].) “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should
be followed.” (Ibid.)
We reject Uy’s assertion that his trial counsel was ineffective in failing to object to
the probation report or to the trial court’s alleged failure to apply mitigating factors,
because there was no prejudice. As we have explained, the probation report discussed
relevant mitigating circumstances and the trial court considered relevant factors in
determining the appropriate sentence for Uy. The trial court would have denied a defense
objection concerning the probation report or the trial court’s sentencing considerations,
and hence Uy was not prejudiced by counsel’s failure to object. (People v. Maury (2003)
30 Cal.4th 342, 394; People v. Mattson (1990) 50 Cal.3d 826, 876 [defendant claiming
ineffective assistance of counsel must show that objection would have been meritorious].)
In addition, Uy contends his trial counsel was ineffective because counsel failed to
argue for leniency based on certain section 190.3 factors that may be considered by the
trial court, if relevant, in determining the penalty. (§ 190.3.) Again, the record does not
support Uy’s assertion.
Section 190.3, subdivision (b) says the trial court may consider the presence or
absence of criminal activity by the defendant which involved the use or attempted use of
force or violence or the express or implied threat to use force or violence. Uy’s trial
counsel argued for leniency because Uy had no prior juvenile record of violent crime and
was not a violent criminal.
Section 190.3, subdivision (c) provides that the trial court may consider the
presence or absence of any prior felony conviction. The probation report indicated that
Uy did not have a prior felony conviction, and the trial court considered the probation
report. Uy’s trial counsel did not argue for leniency based on the lack of a prior felony
conviction. But given the totality of the circumstances, including the numerous and more
persuasive arguments asserted by trial counsel in Uy’s section 190.5, subdivision (b)
27
motion, we are not convinced that trial counsel’s omission was deficient. Nor can we
conclude, based on all the facts before the trial court, that there was a reasonable
probability Uy would have received a lesser punishment had his trial counsel argued that
Uy deserved leniency because he did not have a prior felony conviction.
Section 190.3, subdivision (g) indicates that the trial court may consider whether
or not defendant acted under extreme duress or under the substantial domination of
another person. And section 190.3, subdivision (h) says the trial court may consider
whether or not at the time of the offense the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect, or the effects of intoxication. Regarding
those factors, Uy does not cite, and we do not find, any portion of the record showing that
Uy acted under extreme duress or the substantial domination of another person.
Moreover, although Uy and his codefendants smoked two “blunts” of marijuana before
the shooting, there is no evidence that Uy was impaired at the time of the shooting. Uy
certainly made no such claim when the detectives questioned him. Rather, the evidence
shows, as the trial court found, that Uy acted in a deliberate manner and was willing to
shoot at the victims. Because the evidence does not support an argument based on the
factors in section 190.3, subdivisions (g) and (h), Uy’s trial counsel was not deficient in
failing to argue that those were mitigating factors in this case.
Uy’s ineffective assistance claim lacks merit.
D
On the count 1 murder conviction, the trial court sentenced Uy to LWOP. The
trial court also imposed sentence for various enhancements, including a 10-year
consecutive term pursuant to section 186.22, subdivision (b)(1) [felony committed for the
benefit of a street gang]. Uy contends it was error to impose the 10-year enhancement
term, and we agree.
28
The criminal street gang sentence enhancement set forth in section 186.22,
subdivision (b)(1) increases the penalties for underlying crimes when those crimes are
punishable by a determinate term. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327;
People v. Fiu (2008) 165 Cal.App.4th 360, 390.) But where the underlying felony
offense is punishable by an indeterminate term, section 186.22, subdivision (b)(1) does
not alter or enhance the indeterminate term. (Sengpadychith, supra, 26 Cal.4th at p. 327.)
In People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the issue was whether a first
degree murder committed for the benefit of a gang was subject to the 10-year
enhancement in section 186.22, subdivision (b)(1)(C), or whether the murder was
governed instead by the 15-year minimum parole eligibility term in section 186.22,
subdivision (b)(5). (Lopez, supra, 34 Cal.4th at p. 1006.) The California Supreme Court
said it appeared that the Legislature “intended section 186.22[, subdivision] (b)(5) to
encompass both a straight life term as well [as] a term expressed as years to life (other
than those enumerated in subdivision (b)(4)) and therefore intended to exempt those
crimes from the 10-year enhancement in subdivision (b)(1)(C).” (Lopez, supra, 34
Cal.4th at p. 1007.)
The Lopez decision is not directly on point because it did not involve an LWOP
sentence. In addition, there is language in Lopez indicating that the predecessor to
section 186.22, subdivision (b)(5) was understood to apply to all lifers except those
sentenced to LWOP. (Lopez, supra, 34 Cal.4th at p. 1010.) Nonetheless, we conclude
the reasoning in Lopez is persuasive in this case.
Section 186.22, subdivision (b)(5) applies to “any person who violates this
subdivision in the commission of a felony punishable by imprisonment in the state prison
for life . . . .” (§ 186.22, subd. (b)(5).) Uy fits that description. Moreover, it is not an
anomaly that subdivision (b)(5)’s minimum 15-year parole eligibility provision will have
no practical effect in connection with Uy’s LWOP sentence. As the California Supreme
Court explained in Lopez, the statutory scheme allows for the imposition of greater
29
punishment than that set forth in subdivision (b)(5). (Lopez, supra, 34 Cal.4th at
p. 1009.)
We will modify the judgment by striking the 10-year gang enhancement on the
count 1 murder conviction. Under the circumstances, we need not discuss Uy’s further
contention that the enhancement violates section 654.
II
A
Prum contends the trial court erred in admitting cumulative and irrelevant
character evidence. He argues reversal is required because the admission of gang
evidence was prejudicial error under state law and the admission of bad character
evidence deprived him of his constitutional right to due process under federal law. He
adds that even if we conclude that he forfeited his contention by failing to object in the
trial court, we should reach the merits because his trial counsel was ineffective.
We conclude Prum forfeited his claims of error because he failed to object to the
admission of gang evidence at trial on any of the grounds asserted on appeal. (People v.
Partida (2005) 37 Cal.4th 428, 431; People v. Williams (1997) 16 Cal.4th 153, 250; Evid.
Code, § 353, subd. (a).) Nonetheless, because Prum also asserts ineffective assistance of
counsel, we will address his claims on the merits.
1
Prum claims the gang evidence was not necessary to prove the gang allegations
and substantive gang charge. He asserts that he “essentially conceded” the gang
allegations. He says his only argument was that John Jr. fired the first shot.
The record does not support Prum’s contention that the gang charge and
allegations were conceded. Prum pleaded not guilty to all counts and denied all
allegations in the information against him. The record does not disclose a stipulation
concerning the gang charge or gang allegations. The prosecution had to prove the gang
offense and allegations. Our review of the record disclosed no admission by Prum that
30
the Bloods, Original Bloods or West Side Bloods were criminal street gangs within the
meaning of section 186.22, that Prum’s involvement in the Original Bloods or West Side
Bloods was more than nominal or passive, or that Prum’s conduct on February 8 was
carried out to further the activities of a gang or to benefit a criminal street gang.
Prum claims his trial counsel explained to the jury that 99 percent of the facts in
the case were uncontested. However, the portion of the record Prum cites in support of
this claim does not show that Prum conceded the gang offense and/or the gang
allegations. Instead, the attorney’s comment pertained to the contention that John Jr. had
reasons to shoot first.
2
Prum claims the following evidence bears no relevance to the prosecution’s case:
23 photographs identified as People’s exhibit Nos. 118, 121-126, 153, 232-238 and 239-
246, Prum’s police contacts, Detective Gutierrez’s testimony about possession of
firearms and criminal activities by gang members, and Prum’s monikers.
“[A]s [a] general rule, [gang evidence] is admissible if it is logically relevant to
some material issue in the case, other than character evidence, is not more prejudicial
than probative and is not cumulative.” (People v. Albarran (2007) 149 Cal.App.4th 214,
223.) Gang evidence, i.e., evidence of the defendant’s gang affiliation and activity and
the gang’s territory, membership, signs, symbols, beliefs and practices, criminal
enterprises, and rivalries, may be relevant to establish identity, motive, modus operandi,
specific intent, means of applying force or fear, witness credibility, or other issues
pertinent to guilt of the charged crime. (Id. at pp. 223-224; People v. Samaniego (2009)
172 Cal.App.4th 1148, 1167-1168 [“Gang evidence is relevant and admissible when the
very reason for the underlying crime, that is the motive, is gang related”].) We review
the trial court’s ruling on the relevance of evidence for abuse of discretion. (Albarran,
supra, 149 Cal.App.4th at pp. 224-225.)
31
The photographs were probative of the identity and gang affiliation of Garduno
and Uy, the presence of Original Bloods and West Side Bloods in the Louis Park area, the
symbols and signs associated with those gangs, Prum’s association with documented
West Side Bloods and Original Bloods members and a person featured on a Bloods
MySpace page, and the fact that Bloods “mask up” by wearing red bandanas over their
face as Prum did on February 8 and display gang affiliation by wearing particular
apparel.
In addition, the evidence of police contacts was probative of the following: the
existence of a criminal street gang, Prum’s gang membership and active participation in
the Original Bloods and West Side Bloods, the territory for the Original Bloods and West
Side Bloods, and that 2845 Pixie Court A was an address associated with Prum.
Prum tried to show that the police did not know whether Prum stayed at 2845
Pixie Court A, the address where police conducted a search and found a red bandana,
firearms and paycheck stubs for Prum. On redirect examination, Detective Gutierrez
testified about police contacts with Prum at Pixie Court A. That testimony was relevant
to show a connection between Prum and the residence on Pixie Court A. It was also
relevant to connect Prum with the items found in the search.
Prum objects on relevance grounds to Detective Gutierrez’s testimony that it was
common for gang members to carry firearms and that Detective Gutierrez had found a
large number of firearms in the possession of gang members. But Detective Gutierrez’s
testimony was relevant to whether the commission of specified criminal acts were
primary activities of the Original Bloods and the West Side Bloods and whether members
of the Original Bloods and West Side Bloods engaged in a pattern of criminal activity.
The testimony was also relevant to Prum’s active participation in a gang and his
acquisition of a firearm on February 8.
Prum’s trial counsel asked Detective Gutierrez: “Isn’t [a gang] a huge social
network?” Prum claims Detective Gutierrez’s response to that question is not relevant to
32
the gang offense and allegations. During cross-examination, Detective Gutierrez denied
that gangs had a “large social component” and described gang criminal activities without
objection from Prum. When defense counsel asked whether certain photographs showed
people “just kind of goofing,” Detective Gutierrez stated, “I wouldn’t call it goofing, I’d
call it more getting together to [¶] . . . [¶] conduct business, to have a meeting on what’s
going on, who they’re having issues with. That’s what gangsters do, they have gangster
meetings.” Detective Gutierrez’s testimony was directly relevant to gang organization
and whether the Original Bloods and West Side Bloods had as one of their primary
activities the commission of enumerated criminal acts, which are requisite elements of a
criminal street gang.7 (§ 186.22, subd. (f).)
Prum also states that his monikers “Beast” and “Damu” are not relevant to prove
the primary activities of a criminal street gang or a pattern of criminal activity. But
Prum’s monikers were probative of Prum’s identity because some witnesses referred to
Prum by his moniker and one of the “kites”8 Prum wrote to John Jr. referred to the name
“Beast.” Prum testified he sometimes identified himself as “Beast” and sometimes as
“Damu.” The moniker “Damu” also had a tendency in reason to prove Prum’s gang
membership because the word “Damu” means blood.
3
Prum claims the challenged gang evidence was unduly prejudicial.
The trial court may, in its discretion, exclude evidence if its probative value is
substantially outweighed by the probability that its admission will create substantial
7 Prum says Detective Gutierrez testified that gangs are violent all the time, but the
detective did not identify a single violent offense committed by Bloods. Prum’s
objection goes to the weight of the evidence, not its admissibility.
8 Kites are written messages that prisoners send to each other while in custody. While
they were at county jail, Prum sent John Jr. 12 or 13 kites.
33
danger of undue prejudice. (Evid. Code, § 352.) The term “undue prejudice” in
Evidence Code section 352 refers to evidence which has very little evidentiary impact
and “ ‘ “which uniquely tends to evoke an emotional bias against the defendant . . .” ’ not
the prejudice ‘that naturally flows from relevant, highly probative evidence.’ ” (People v.
Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998)
17 Cal.4th 800, 823, fn. 1.) “ ‘ “[A]ll evidence which tends to prove guilt is prejudicial
or damaging to the defendant’s case. The stronger the evidence, the more it is
‘prejudicial.’ ” ’ ” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) But Evidence
Code section 352 does not make evidence inadmissible merely because it is highly
damaging to the defendant. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.) We
review the trial court’s ruling that gang evidence is not unduly prejudicial for abuse of
discretion. (People v. Albarran, supra, 149 Cal.App.4th at pp. 224-225.)
As we have explained, the gang evidence was directly relevant to issues before the
jury. We also conclude the evidence was not unduly prejudicial. The gang evidence was
not more inflammatory than the testimony about the fatal Louis Park shooting. Prum
admitted bringing armed “backup” to the park and arming himself with a “fully-loaded”
MAC-10 to “punk” or “disrespect[]” a rival gang member. He admitted that he “masked
up,” ordered John Jr. to leave an area Prum considered a “West Side Blood
neighborhood,” and fired his MAC-10 causing Aaron’s death.
Prum’s claim of undue prejudice lacks merit.
4
Prum argues the gang evidence constituted improper bad character evidence.
“[G]ang evidence is inadmissible if introduced only to ‘show a defendant’s criminal
disposition or bad character as a means of creating an inference the defendant committed
the charged offense. [Citations.]’ ” (People v. Avitia (2005) 127 Cal.App.4th 185, 192;
Evid. Code, § 1101.)
34
As we have explained, the challenged evidence was probative of material issues in
the case. We are not persuaded that such evidence was offered to show Prum’s character
or disposition. (People v. Dominguez (1981) 121 Cal.App.3d 481, 498, fn. 20 [evidence
about gang membership and criminal purposes of the gang was relevant to prove motive
for charged offense and did not constitute “ ‘criminal propensity’ ” character evidence
prohibited by Evidence Code section 1101, subdivision (a)].)
We do not reach the same conclusion regarding Detective Gutierrez’s testimony
about the firearms police found during the February 11 search at 2845 Pixie Court A.
Prum admitted he stayed at 2845 Pixie Court A sometimes. The residence belonged to
Prum’s aunt. Police found a red bandana and Prum’s paycheck stubs in one bedroom and
firearms in a different bedroom. There was no evidence that Prum stayed in the bedroom
where the firearms were located or that Prum owned or possessed the firearms police
found. Detective Gutierrez admitted he had no evidence linking the firearms to the
February 8 shooting, but he said it was common for gang members to ask relatives to
keep firearms for the gang member so that the gang member was not found to be in
possession of the firearms. Prum testified the firearms belonged to his uncle.
There was no evidentiary link between the firearms, on the one hand, and Prum, a
gang or the February 8 incident, on the other. Because evidence about the firearms bore
no relevance to a material issue in the case, the evidence suggested that Prum was the
kind of person who kept or had access to deadly weapons or had a criminal disposition.
(People v. Avitia, supra, 127 Cal.App.4th at pp. 193-194.) Such evidence is
inadmissible. (Ibid.; People v. Cardenas (1982) 31 Cal.3d 897, 904-906.)
We evaluate error in the admission of evidence under the standard of People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson), i.e., we determine whether it was
“ ‘reasonably probable that a result more favorable to defendant would have resulted’ ”
had the challenged evidence not been admitted. (People v. Williams (2009) 170
Cal.App.4th 587, 612-613; People v. Avitia, supra, 127 Cal.App.4th at p. 194.) We
35
conclude that the error in admitting the firearms evidence was harmless under Watson
because even without that evidence, the prosecution overwhelmingly established Prum’s
guilt on the substantive offenses and the truth of the gang allegations.9
In addition, the trial court instructed the jury with CALCRIM No. 1403 regarding
the limited use of the evidence. Absent a contrary indication, we presume the jury
understood and followed the trial court’s instructions. (People v. Yeoman (2003) 31
Cal.4th 93, 139.) On this record, it is not reasonably probable that the jury would have
returned verdicts more favorable to Prum had the firearms evidence been excluded.
5
Prum next asserts that certain evidence was cumulative. Specifically, he claims
the 23 photographs identified as People’s exhibit Nos. 118, 121-126, 153, 232-237 and
9 Prum also claims a violation of due process. We must determine whether the
erroneous admission of evidence rendered Prum’s trial fundamentally unfair (People v.
Partida, supra, 37 Cal.4th at p. 439), and if constitutional error occurred, whether it is
clear beyond a reasonable doubt that the erroneously admitted evidence did not contribute
to the verdict. (People v. Albarran, supra, 149 Cal.App.4th at p. 229 [Chapman v.
California (1967) 386 U.S. 18 [17 L.Ed.2d 705] standard applies to federal constitutional
errors].) Absent fundamental unfairness, error in admitting evidence is subject to the
Watson test. (People v. Partida, supra, 37 Cal.4th at p. 439.)
In light of Prum’s testimony showing the ease and speed with which he obtained the
semiautomatic firearm on February 8 and then disposed of the gun after firing it, and
given Detective Gutierrez’s admission that he did not know whether the guns seized from
2845 Pixie Court A belonged to Prum, we conclude the firearms evidence was not so
prejudicial as to necessarily render Prum’s trial unfair. (People v. Hunt (2011) 196
Cal.App.4th 811, 817 [“ ‘Only if there are no permissible inferences the jury may draw
from the evidence can its admission violate due process. Even then, the evidence must
“be of such quality as necessarily prevents a fair trial.” [Citation.]’ ”].) Moreover, given
the substantial unchallenged evidence supporting Prum’s conviction discussed in this part
of our opinion, any error in the admission of the firearms evidence was harmless whether
analyzed under Watson or Chapman. Prum’s ineffective assistance of counsel claim
based on the firearms evidence fails. (People v. Maury, supra, 30 Cal.4th at p. 394;
People v. Mattson, supra, 50 Cal.3d at p. 876.)
36
239-246, Detective Gutierrez’s testimony about the photographs and a photograph from
what appears to be a Bloods MySpace page were prejudicially cumulative.10
Exhibit Nos. 232 and 244, which relate to Garduno and Uy, did not duplicate the
other photographs Prum challenges. Exhibit Nos. 122, 235, 242 and 243 relate to
territory of the West Side Bloods and Original Bloods. Exhibit No. 238 shows images of
persons “masked up” and throwing up gang signs in a Bloods MySpace page. Exhibit
Nos. 242 and 246 show Prum with an individual who Detective Gutierrez testified he saw
on a Bloods MySpace page. Exhibit No. 124 shows Prum’s girlfriend Celines Petrosian
with an unidentified male wearing a red bandana over his face and another person
wearing red and throwing gang hand signs. The photographs are relevant to the gang
charges, gang allegations and Petrosian’s credibility. They are not unnecessarily
duplicative nor excessive in number.
Prum also claims the testimony about 10 prior police contacts is prejudicially
cumulative. We disagree.
As the court observed in People v. Williams, supra, 170 Cal.App.4th at page 611,
there is no bright-line rule for determining when evidence is cumulative; such a
determination must be reasonable and practical. In that case, the appellate court
concluded that it was cumulative to admit evidence of dozens of prior crimes and
contacts with law enforcement. (People v. Williams, supra, at pp. 598-599, 610-611.)
But the instant case is different. The number of police contacts was not excessive.
Except for the error in admitting evidence about firearms seized from 2845 Pixie
Court A, which we conclude was harmless, we reject Prum’s claims of error, violation of
10 Prum states the prosecution did not whittle down the photographs presented at trial.
The record contradicts this claim as it shows that prior to trial, the prosecution’s expert
identified perhaps a dozen photographs, out of hundreds, which the expert felt were
relevant to his testimony.
37
due process and ineffective assistance of counsel premised on challenged evidence.
(People v. Samaniego, supra, 172 Cal.App.4th at p. 1170 [failure to make meritless
objections cannot be the basis of an ineffective assistance of counsel claim].)
B
Prum next contends there was insufficient evidence to establish that one of the
primary activities of the Bloods street gang is the commission of one or more of the
criminal acts enumerated in section 186.22, subdivision (e). He claims it was insufficient
for gang expert Detective Gutierrez to opine that some activities of the West Side Bloods
included the commission of criminal acts listed in section 182.22, subdivision (e);
instead, he asserts Detective Gutierrez had to specify the enumerated crimes in which the
West Side Bloods primarily engage. Prum adds that although Detective Gutierrez
testified about five predicate offenses, there was no evidence that those offenses were
committed by current members or that the commission of those offenses was a primary
activity of the Bloods. We reach a contrary conclusion.
To establish the existence of a “criminal street gang,” the prosecution must prove
that one of the gang’s “ ‘chief,’ ” “ ‘principal’ ” or more than occasional occupations was
the commission of one or more of the criminal acts listed in section 186.22, subdivision
(e). (People v. Sengpadychith, supra, 26 Cal.4th at p. 323; § 186.22, subds. (e), (f).)
“Sufficient proof of the gang’s primary activities might consist of evidence that the
group’s members consistently and repeatedly have committed criminal activity listed in
[section 186.22, subdivision (e)].” (Sengpadychith, supra, 26 Cal.4th at p. 324, italics
omitted.) Prior conduct or acts committed at the time of the charged offenses can be used
to establish the “primary activities” of the gang. (Id. at p. 323.) Expert testimony that the
gang was primarily engaged in the enumerated criminal acts may also be sufficient.
(Id. at p. 324.) For example, in People v. Gardeley, a gang expert opined that the primary
activities of the gang in question were drug dealing and witness intimidation, both crimes
listed in section 186.22, subdivision (e), based on conversations with the defendant and
38
other gang members, information from other law enforcement officials, and investigation
of hundreds of crimes committed by gang members. (People v. Gardeley (1996) 14
Cal.4th 605, 620.) Such testimony was sufficient to prove the primary activities of the
gang. (Sengpadychith, supra, 26 Cal.4th at p. 324.)
Viewing the entire record in the light most favorable to the prosecution and
drawing all permissible inferences in favor of the judgment, as we must in determining
Prum’s insufficiency of evidence claim (Ochoa, supra, 6 Cal.4th at p. 1206), we conclude
that substantial evidence supports the jury’s finding that a primary activity of the West
Side Bloods and the Original Bloods was the commission of crimes enumerated in
section 186.22, subdivision (e). The prosecution presented Detective Gutierrez as an
expert on Asian criminal street gangs in Stockton, without objection from Prum. As part
of his duties as a member of the Stockton Police Department’s gang violence suppression
unit, Detective Gutierrez investigated gang-related crimes, validated gang members, and
gathered intelligence regarding gangs and their members. His knowledge about the
Bloods was based on his participation in the arrests of Bloods members, his conversations
with Bloods members, police reports concerning Bloods, and his investigation of crimes
by Bloods members. His opinion about the activities of Bloods members was based on
his training and experience, including listening to wiretaps of conversations between
gang members.
According to Detective Gutierrez, the Original Bloods and West Side Bloods had
become one gang and their members committed crimes together. He testified that some
of the activities of the West Side Bloods included the commission of crimes listed in
section 186.22, subdivision (e), and that the Original Bloods committed the following
crimes listed under section 186.22, subdivision (e): robbery, auto theft, carjacking, sale of
narcotics, and shooting at residences, vehicles and persons. Detective Gutierrez gave
four examples of enumerated offenses committed by members of the West Side Bloods
and Original Bloods: (1) on January 31, 2007, Calvin Claridy, a documented West Side
39
Bloods member, committed auto theft (Veh. Code, § 10851, subd. (a)); (2) in April 2007,
documented West Side Bloods member Antwaine Williams pleaded guilty to possession
of a controlled substance for sale (Health & Safety Code, § 11378) and possession of a
firearm by a felon (former § 12021, subd. (a)); (3) in September 2007, documented
Original Bloods member Tony Sann committed the crime of possession of cocaine base
for sale (Health & Safety Code, § 11351.5); and (4) in August 2007, Prum was convicted
of carrying a concealed firearm by a gang member (former § 12025, subd. (b)(3)). The
prosecution presented certified court documents and a certified rap sheet in support of
Detective Gutierrez’s testimony. Auto theft, possession for sale of controlled substances,
possession of a firearm in violation of former section 12021 and carrying a concealed
firearm in violation of former section 12025 are crimes enumerated in section 186.22,
subdivision (e). (§ 186.22, subd. (e)(4), (25), (31), (32).) Detective Gutierrez also stated
that Claridy, Williams, Sann and Prum were not the only Bloods who had committed
enumerated crimes.
Detective Gutierrez further testified about the more than occasional criminal
activity by Bloods. According to the detective, “gangsters are out there, they’re armed,
they are getting stopped by the police, getting arrested for narcotics, firearms violations
. . . . They’re out making money, they’re out terrorizing people, they’re carjacking
people. That’s what this gang does.” Detective Gutierrez’s testimony that Bloods
engaged in firearms violations is corroborated by Prum’s 2007 conviction for carrying a
concealed firearm, Antwaine Williams’s 2007 conviction for possession of a firearm by a
felon, and Prum’s testimony that he, Uy and Cole, all admitted Bloods, were armed
during the Louis Park incident. Detective Gutierrez opined that the West Side Bloods
and Original Bloods were “active” criminal street gangs in Stockton, engaging in
incidents such as shootings, car theft and drug sales, and increasing membership.
There was substantial evidence upon which the jury could reasonably infer that a
principal activity of the Original Bloods and West Side Bloods was committing the
40
enumerated crimes of auto theft, sale of controlled substances, and unlawful possession
of firearms. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1227-1228.)
C
Prum also claims the trial court erred in instructing the jury with CALCRIM
No. 372 [defendant’s flight] because there was no evidence supporting an inference of
consciousness of guilt. In Prum’s view, merely leaving the scene of a crime does not
show consciousness of guilt.
The Attorney General responds that the flight instruction was appropriate because
Prum admitted he left the Louis Park area after the shooting because he knew the police
would be in that neighborhood. The record supports the Attorney General’s position.
“ ‘In general, a flight instruction “is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his movement
was motivated by a consciousness of guilt.” ’ [Citations.]” (People v. Bonilla (2007) 41
Cal.4th 313, 328; People v. Howard (2008) 42 Cal.4th 1000, 1020-1021.) Flight does not
require the physical act of running or the reaching of a faraway haven. (People v.
Wallace (2008) 44 Cal.4th 1032, 1074.) It only requires “ ‘ “a purpose to avoid being
observed or arrested.” ’ ” (Ibid.)
Prum ran from the park after firing his weapon. He drove to a friend’s house to
hide. After about an hour or so, he left for Jackson Rancheria Casino because he “wanted
to get away” and he knew the police would be around. He gave his gun to someone with
instructions to get rid of it, and the day after the shooting Prum cut his hair. Although
Prum’s girlfriend told him the police wanted to talk to him about what happened at the
park, Prum did not respond to the police. The jury could reasonably infer from this
evidence that Prum left the Louis Park area to avoid detection by the police. Under those
circumstances, the instruction on flight was proper.
41
D
Prum further contends the jury instruction given for attempted murder (former
CALCRIM No. 600) did not accurately explain the kill zone theory. He contends the
instruction did not require a finding of intent to kill and allowed the jury to convict him
of attempted murder based solely on a finding of implied malice, i.e., that he recklessly
fired his gun toward a group of cars and created the possibility that the occupants of
Renee’s car would be harmed.
In determining the correctness of jury instructions, we consider the instructions as
a whole. (People v. Fiu, supra, 165 Cal.App.4th at p. 370.) We ask whether there is a
reasonable likelihood the jury misconstrued or misapplied the law in light of the
instructions given, the entire record of trial and the arguments of counsel. (Ibid.)
Here, the entire instruction given by the trial court adequately informed the jury of
the requisite intent and the kill zone theory as articulated in Bland, supra, 28 Cal.4th 313.
Unlike murder, proof of express malice is required to establish attempted murder.
(Smith, supra, 37 Cal.4th at p. 739.) Implied malice or conscious disregard for human
life will not suffice. (Ibid.; Bland, supra, 28 Cal.4th at pp. 327–328.) The prosecution
must show that the defendant intended to kill the alleged victim, not someone else.
(Bland, supra, at p. 328.)
The kill zone theory recognizes that the defendant may intend to kill a primary
target and concurrently intend to kill others within the kill zone. (Bland, supra, 28
Cal.4th at pp. 329-331.) The theory does not relieve the prosecution from showing
specific intent, but the jury may reasonably infer that the defendant intended to kill the
victims within the kill zone if the defendant, with the intent to kill the primary target,
employed a means of attack designed to kill everyone in the vicinity of the primary target
in order to ensure that target’s death. (Ibid.)
Here, the trial court instructed the jury that attempted murder required a specific
mental intent. It further instructed: “To prove that the defendant is guilty of attempted
42
murder, the People must prove that: [¶] One, the defendant took at least one direct but
ineffective step toward killing another person; [¶] And, two, the defendant intended to
kill that person.” It also admonished the jury that “[a] person may intend to kill a specific
victim or victims and at the same time intend to kill anyone in a particular zone of harm
or ‘kill zone.’ [¶] In order to convict the defendant of the attempted murder of Renee[],
Alana[], [and] Marissa[], the People must prove that the defendant not only intended to
kill John Tellez Jr., but also either intended to kill Renee[], Alana[], Marissa[], or
intended to kill anyone within the kill zone. [¶] If you have a reasonable doubt whether
the defendant intended to kill Renee[], Alana[], Marissa[], or intended to kill John Tellez
Jr. by harming everyone in the kill zone, then you must find the defendant not guilty of
the attempted murder of Renee[], Marissa[], [and Alana].”
Prum criticizes the trial court’s use of the words “anyone,” “zone of harm” and
“harming” in its instruction for attempted murder.11 He claims those words removed the
intent to kill element of attempted murder.
Regarding the word “anyone,” the court in Bland said a defendant may be
convicted of attempted murder of “any” within the kill zone based on a concurrent intent
theory. (Bland, supra, 28 Cal.4th at p. 331.) And in addressing substantially similar
language in a kill zone jury instruction, the California Supreme Court said in People v.
Stone (2009) 46 Cal.4th 131, 138, footnote 3, that read in context, “a jury hearing about
the intent to kill anyone within the kill zone would probably interpret it as meaning the
intent to kill any person who happens to be in the kill zone, i.e., everyone in the kill
zone.” (Stone, supra, 46 Cal.4th at p. 138, fn. 3.) Additionally, the appellate court in
People v. Campos (2007) 156 Cal.App.4th 1228, 1241-1243 (Campos) rejected the same
11 In August 2009, CALCRIM No. 600 was amended to replace the words “anyone” and
“harming” with “everyone” and “killing.” The trial court did not instruct with the
amended CALCRIM No. 600.
43
claim Prum raises on appeal based on the same former CALCRIM No. 600 language at
issue here. The court in Campos said the terms “ ‘kill anyone within the kill zone’ ” and
“ ‘kill everyone within the kill zone’ ” both require a finding of specific intent to kill each
person within the group. (Campos, supra, 156 Cal.App.4th at p. 1243.)
As for the trial court’s use of the words “zone of harm” and “harming,” the
challenged instruction clearly required the jury to find that Prum intended to “kill,” not
just “harm.” (People v. Bragg (2008) 161 Cal.App.4th 1385, 1395-1396 [rejecting
challenge to use of words “ ‘harm’ ” and “ ‘zone of harm’ ” in kill zone instruction];
Bland, supra, 28 Cal.4th at p. 330 [citing term “ ‘zone of harm’ ” with approval].) No
reasonable juror would have construed these terms as permitting a conviction for
attempted murder premised on intent to harm rather than intent to kill. (People v. Bragg,
supra, at pp. 1395-1396.)
Prum claims the trial court failed to explain that under the kill zone theory, Prum
must have used a mode of attack designed to kill everyone inside Renee’s car for the jury
to reasonably infer that Prum intended to kill the persons in that car. But the court in
Bland stated that the kill zone theory is not a legal doctrine requiring special jury
instruction. (Bland, supra, 28 Cal.4th at p. 331, fn. 6.) “[I]t is simply a reasonable
inference the jury may draw in a given case.” (Ibid.) In light of all the instructions and
all the evidence, we are not persuaded the jury could have misapplied the attempted
murder instruction in these circumstances. Prum relies on cases where one or two
gunshots were fired toward a group of people, but that is not this case. People v.
Anzalone (2006) 141 Cal.App.4th 380, People v. Leon (2010) 181 Cal.App.4th 452 and
People v. Perez (2010) 50 Cal.4th 222 are distinguishable because here, Prum used a
44
fully loaded semiautomatic weapon, and he and his cohorts fired over a dozen shots at the
fleeing victims. On this record, the jury could not misconstrue the instruction.12
E
In addition, Prum claims there was insufficient evidence that he attempted to kill
Renee and her daughters. He asserts there was no evidence to show where all of his
bullets landed, no evidence that he saw or knew Renee and her daughters were in that
particular car, and no evidence that he attempted to kill John Jr. by killing everyone in
Renee’s car. Applying the principles articulated previously in this opinion governing a
review for sufficiency of the evidence to support a conviction, we reach a contrary
conclusion. Based on the evidence of Prum’s retaliatory animus, the actions he took to
prepare for a confrontation with John Jr., the words Prum spoke during the confrontation,
the lethal capability of the weapon he used, the number of shots fired, his admission that
he shot at a sportscar, the likeness and proximity of the victims’ car to the car in which
John Jr. was a passenger, and the vulnerable position of Renee’s car when Prum fired
upon it, the jury could reasonably have found beyond a reasonable doubt that Prum
intended to kill John. Jr., fired at everyone in the area around John Jr. to ensure John Jr.’s
death, and that Renee and her daughters were within the kill zone Prum intentionally
created. The fact that Prum did not know Renee and her daughters were in a car that was
within the kill zone does not negate Prum’s intent to kill all those in the area toward
which he repeatedly fired. (People v. Vang (2001) 87 Cal.App.4th 554, 564-565 [fact
12 Prum adds that the prosecutor committed misconduct by arguing that Prum and his
codefendants jointly intended to create a kill zone even though there was no evidence that
Prum asked or encouraged his codefendants to shoot or that all of them shared the intent
to kill. He claims the prosecutor improperly asked the jury to apply an aiding and
abetting theory. But because this contention was not asserted in a separate heading, we
need not address it. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Harper (2000)
82 Cal.App.4th 1413, 1419, fn. 4; Opdyk v. California Horse Racing Bd. (1995) 34
Cal.App.4th 1826, 1830-1831, fn. 4.)
45
that defendants could not see all of the victims inside the dwelling subjected to gunfire
and fact that defendant mistakenly believed the target was inside the dwelling do not
negate their express malice]; People v. Adams, supra, 169 Cal.App.4th at p. 1023
[whether defendant was aware that the attempted murder victims were within the zone of
harm is not a defense].) Substantial evidence supports the convictions for attempted
murder.
F
Prum asserts the trial court erred in failing to instruct the jury on the elements for
carrying a loaded firearm by a gang participant (former § 12031, subd. (a)(2)(C), now
§ 25850, subd. (c)(3) -- count 6) and carrying a concealed firearm by a gang participant
(former § 12025, subd. (b)(3), now § 25400, subd. (c)(3) -- count 7). He contends the
error is reversible per se. In the alternative, Prum argues reversal is required because the
Attorney General cannot demonstrate that the trial court’s instructional error was
harmless beyond a reasonable doubt.
The Attorney General agrees that the trial court “mistakenly omitted the jury
instructions” relevant to counts 6 and 7, but asserts the error was harmless.
It is well established that “[t]he trial court must instruct even without request on
the general principles of law relevant to and governing the case. [Citation.] That
obligation includes instructions on all of the elements of a charged offense. [Citation.]”
(Cummings, supra, 4 Cal.4th at p. 1311.) In Cummings, one of the defendants was
charged and convicted of attempted robbery, robbery and conspiracy to commit robbery.
(Id. at pp. 1255-1256.) The trial court did not instruct the jury on four of the five
elements of robbery, telling the jury only that “ ‘ . . . the crime of attempted robbery . . .
requires the specific intent to permanently deprive the owner of its property.’ ”
(Cummings, supra, 4 Cal.4th at pp. 1311-1312, fn. omitted.) The California Supreme
Court held that the trial court’s instructional error was reversible regardless of the
overwhelming evidence of the defendant’s guilt. (Id. at p. 1315.) Reviewing California
46
and federal cases, the Supreme Court distinguished cases where the trial court omitted
instructions on the elements of a special circumstance, where the jury necessarily found
the element on which it was incorrectly instructed, and where the instructions withdrew
part of an element from the jury’s consideration. (Id. at pp. 1312-1314.) The Supreme
Court stated: “These decisions make a clear distinction between instructional error that
entirely precludes jury consideration of an element of an offense and that which affects
only an aspect of an element. Moreover, none suggests that a harmless error analysis
may be applied to instructional error which withdraws from jury consideration
substantially all of the elements of an offense and did not require by other instructions
that the jury find the existence of the facts necessary to a conclusion that the omitted
element had been proved.” (Id. at p. 1315.) The Supreme Court also noted that the
record contained little that might have offset the trial court’s omission. The other
instructions did not require the jury to find the existence of the omitted elements. (Ibid.)
The information was not read to the jury and the prosecutor’s closing statement did not
list the elements of robbery. (Cummings, supra, 4 Cal.4th at p. 1312, fn. 52.) And a
finding in favor of the prosecution on the element for which there was proper instruction
did not compel a conclusion that the jury found the facts necessary to establish the
remaining elements. (Id. at p. 1314.)
People v. Kobrin (1995) 11 Cal.4th 416 is also instructive. In that case the
defendant was charged with perjury based on an affidavit he submitted in support of a
petition for a restraining order. (Id. at p. 421.) Although materiality is an element of the
crime of perjury, the trial court did not submit that element to the jury. (Id. at pp. 419,
421.) Instead, the trial court determined the question of materiality and told the jury that
certain statements made by the defendant were material. (Id. at p. 421.) The Supreme
Court held the jury was required to decide the element of materiality. (Id. at p. 427.)
And harmless error analysis was inapplicable because “the jury’s findings on materiality
. . . were nonexistent due to the instructional omission. Thus, ‘[t]here is no object, so to
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speak, upon which harmless-error scrutiny can operate.’ [Citation.]” (Id. at pp. 423, 427,
429.) “Given the complete failure to instruct on materiality, i.e., to have the jury assess
the evidence in relation to that element of the offense, a finding of harmless error would
rest solely on conjecture, effectively substituting this court for the jury as the trier of
fact.” (Ibid.) Additionally, harmless error analysis would require the reviewing court to
speculate because the trial court did not allow the defendant to submit evidence relevant
to materiality. (Kobrin, supra, 11 Cal.4th at p. 430.)
The instructional error in this case is like the one in Cummings because the jury
received no instruction on the findings necessary to convict Prum on counts 6 and 7.
The trial court instructed the jury that to convict Prum on counts 6 and 7 it had to
find that Prum intentionally committed the prohibited acts, and the prohibited acts would
be explained in the instructions for the particular crimes. But the trial court did not
instruct with CALCRIM No. 2520 [carrying a concealed firearm] or CALCRIM
No. 2530 [carrying a loaded firearm], did not give any other specific instructions for the
particular crimes charged in counts 6 and 7, and hence did not instruct the jury on the
elements for those crimes. The omission was reversible error. (Cummings, supra, 4
Cal.4th at p. 1315.) Although the Attorney General urges us to apply harmless error
analysis based on the overwhelming evidence that Prum carried a loaded and concealed
weapon, harmless error analysis does not apply where, as here, the trial court did not give
any instruction on the elements of the charged offenses. (Cummings, supra, 4 Cal.4th at
p. 1315.) We will not speculate in these circumstances whether it appears beyond a
reasonable doubt that the instructional error did not contribute to the jury’s verdict on
counts 6 and 7. (People v. Kobrin, supra, 11 Cal.4th at pp. 423, 427, 429.) Where there
was a total failure to instruct on the elements of a charged offense and the jury was not
required to make factual findings necessary to prove all of the omitted elements,
Cummings, supra, 4 Cal.4th 1233 dictates a reversal. Accordingly, we need not address
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Prum’s assertion that his conviction on count 9 must be reversed if the convictions on
counts 6 and 7 are allowed to stand.
G
Prum also contends the trial court committed various sentencing errors.
1
Prum argues the trial court violated section 664 when it sentenced him to 15 years
to life in prison on the attempted murder convictions. He argues the sentence was not
authorized because under section 664, the sentence for premeditated attempted murder is
life in prison.
The jury convicted Prum for attempted premeditated murder on counts 2, 3 and 4.
The jury also found true the allegation that the attempted murders were committed to
benefit a criminal street gang. Attempted premeditated murder is punishable by life in
prison with the possibility of parole. (§ 664, subd. (a).) Where the defendant is
convicted of a felony committed to benefit a criminal street gang and the felony is
punishable by life in prison, section 186.22, subdivision (b)(5) requires the defendant to
serve a minimum of 15 years in prison. Prum’s sentence of life with a 15-year minimum
parole eligibility period was consistent with the section 664, subdivision (a) requirement
of life with the possibility of parole, and the trial court did not violate section 664.
2
Prum next claims the trial court incorrectly imposed additional life sentences as
enhancements under section 186.22, subdivision (b) on the convictions for first degree
murder (count 1), attempted premeditated murder (counts 2, 3, 4), and shooting at an
occupied motor vehicle (count 5).
As we explained in our discussion of Uy’s contentions, section 186.22,
subdivision (b)(1) does not apply to the count 1 LWOP sentence. In addition, section
186.22, subdivision (b)(1) does not apply to the convictions for attempted premeditated
murder (counts 2, 3 and 4), because those are felonies punishable by life in prison
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(§§ 190.2, subd. (a)(22), 664, subd. (a)) and are subject to section 186.22, subdivision
(b)(5). (Lopez, supra, 34 Cal.4th at p. 1004.) Under the circumstances, the trial court
should not have imposed a second life sentence as an enhancement on the convictions for
counts 1, 2 and 3, and it should not have imposed a 10-year prison term as an
enhancement on the conviction for count 4. We will modify the judgment by striking
those enhancements.
Regarding count 5, Prum contends the trial court should have imposed a life
sentence with a minimum parole term of 15 years instead of a determinate term of five
years plus a life term for the gang allegation. He is correct.
The jury convicted Prum of willfully and maliciously shooting at an occupied
vehicle (§ 246) and found true the gang benefit allegation (§ 186.22, subd. (b)). A
violation of section 246 is punishable by imprisonment for three, five or seven years.
(§ 246.) But when, as here, section 246 is violated to benefit a criminal street gang, the
crime is punishable by an indeterminate term of life in prison with a minimum term of 15
years. (People v. Jones (2009) 47 Cal.4th 566, 572; § 186.22, subd. (b)(4)(B).) Section
186.22, subdivision (b)(4) is a penalty provision, not a sentence enhancement. (Jones,
supra, 47 Cal.4th at p. 576.) It “ ‘sets forth an alternate penalty for the underlying felony
itself, when the jury has determined that the defendant has satisfied the conditions
specified in the statute.’ [Citation.]” (Ibid., emphasis added.)
We will modify the judgment to reflect that Prum is sentenced on the count 5
conviction to a term of 15 years to life in prison.
Because we will reverse the convictions on counts 6 and 7, we do not address
Prum’s claim asserting section 654 sentencing error.
DISPOSITION
As to Uy, the judgment is modified to strike the 10-year gang enhancement
imposed on count 1 pursuant to section 186.22, subdivision (b)(1). The judgment is
affirmed as modified. The trial court is directed to amend the abstract of judgment to
50
reflect the judgment as modified and to forward a certified copy of the amended abstract
of judgment to the Department of Corrections and Rehabilitation.
As to Prum, the convictions on counts 6 and 7 are reversed; the sentences on those
counts are vacated. In addition, the judgment is modified to strike the life sentences
imposed pursuant to section 186.22, subdivision (b)(1) on the convictions for counts 1, 2
and 3, and the 10-year prison term enhancement on the conviction for count 4. The
judgment is further modified to reflect that Prum is sentenced on the count 5 conviction
to a term of 15 years to life in prison. The judgment is affirmed as modified. The trial
court is directed to amend the abstract of judgment to reflect the judgment as modified
and to forward a certified copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
MAURO , J.
We concur:
RAYE , P. J.
NICHOLSON , J.
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