The People v. Johnson CA5 ( 2013 )

Filed 9/25/13 P. v. Johnson CA5
Opinion following remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F057736
Plaintiff and Respondent,
(Super. Ct. Nos. BF122135A,
v. BF122135B & BF122135C)
COREY RAY JOHNSON et al.,
OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and
Appellant Corey Ray Johnson.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and
Appellant Joseph Kevin Dixon.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant David Lee, Jr.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Laura
Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, Jr., (Johnson, Dixon,
and Lee, respectively; collectively, defendants) were charged by first amended indictment
as follows:
 Count one (Johnson and Lee only): March 21, 2007, attempted murder of
Edwin McGowen, involving the personal discharge of a firearm proximately causing
great bodily injury, and committed for the benefit of a criminal street gang (Pen. Code,1
§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).
 Count two (all defendants): April 19, 2007, premeditated murder of James
Wallace, involving the personal discharge of a firearm proximately causing death,
committed by an active participant in and for the benefit of a criminal street gang, and
constituting one of multiple murders (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2,
subd. (a)(3), (22), 12022.53, subds. (d) & (e)(1)).
 Count three (all defendants): April 19, 2007, premeditated murder of
Vanessa Alcala, involving the personal discharge of a firearm proximately causing death,
committed by an active participant in and for the benefit of a criminal street gang, and
constituting one of multiple murders (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2,
subd. (a)(3), (22), 12022.53, subds. (d) & (e)(1)).
 Count four (all defendants): April 19, 2007, premeditated murder of Baby
Boy Alcala, involving the personal discharge of a firearm proximately causing death,
committed by an active participant in and for the benefit of a criminal street gang, and
constituting one of multiple murders (§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2,
subd. (a)(3), (22), 12022.53, subds. (d) & (e)(1)).
 Count five (all defendants): April 19, 2007, attempted murder of Anthony
Lyons, involving the personal discharge of a firearm proximately causing great bodily
1 All statutory references are to the Penal Code unless otherwise stated.
2.
injury, and committed for the benefit of a criminal street gang (§§ 186.22,
subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).
 Count six (Dixon only): April 19, 2007, possession of a firearm by one
previously convicted of a felony, committed for the benefit of a criminal street gang
(§§ 186.22, subd. (b)(1), 12021, subd. (a)(1)).2
 Count seven (all defendants): August 11, 2007, attempted murder of
Adrian Bonner, involving the personal discharge of a firearm proximately causing great
bodily injury, and committed for the benefit of a criminal street gang (§§ 186.22,
subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)).
 Count eight (all defendants): August 11, 2007, discharge of a firearm at an
occupied vehicle, involving the personal discharge of a firearm proximately causing great
bodily injury or death, and committed for the benefit of a criminal street gang (§§ 186.22,
subd. (b)(1)(C), 246, 12022.53, subds. (d) & (e)(1)).
 Count nine (all defendants): March 2, 2007-August 22, 2007, conspiracy to
violate any or all of sections 186.22, subdivision (a), 187, 211, and 245,
subdivision (a)(2), committed for the benefit of a criminal street gang (§§ 182,
subd. (a)(1), 186.22, subd. (b)(1)(C)).
 Count ten (Dixon only): August 9, 2007-August 18, 2007, possession of a
firearm by one previously convicted of a felony, committed for the benefit of a criminal
street gang (§§ 186.22, subd. (b)(1), 12021, subd. (a)(1)).
 Count eleven (all defendants): March 2, 2007-August 22, 2007, active
participation in a criminal street gang (§ 186.22, subd. (a)).
2 Effective January 1, 2012, former section 12021, subdivision (a)(1) was repealed
and reenacted as section 29800, subdivision (a)(1) without substantive change. (Stats.
2010, ch. 711, § 4, p. 4036 [repealed]; Stats. 2010, ch. 711, § 6, p. 4169 [reenacted].)
3.
It was further alleged that Dixon was previously convicted of a serious felony
(§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)),
and for which he served a term in prison (§ 667.5, subd. (b)). The People elected not to
seek the death penalty against any defendant.
Following a joint jury trial, defendants were convicted as charged, and the murders
were determined to be first degree. All special circumstance and enhancement
allegations, including Dixon’s prior convictions, were found to be true.3 Johnson’s
motion for a new trial was denied, and each defendant was sentenced to three consecutive
terms of life in prison without the possibility of parole plus additional determinate and
indeterminate terms, and was ordered to pay restitution and various fees and fines.
Originally, we affirmed the judgments with some minor exceptions and
modifications. In particular, we held that a charge of conspiracy to actively participate in
a criminal street gang is not permitted. The California Supreme Court granted review as
to that issue, reversed, and remanded the case to us for further proceedings consistent
with its opinion. (People v. Johnson (2013) 57 Cal.4th 250, 268.) We now vacate our
earlier opinion and, the cause having been submitted pursuant to California Rules of
Court, rule 8.256(d)(2), we issue this opinion. We again affirm the judgments with some
minor exceptions and modifications.
3 The jury was unable to reach a decision as to Dixon, and made no finding as to
Lee, with respect to several of the overt acts alleged in connection with count nine. The
parties stipulated to not true findings for those acts.
4.
FACTS
I
PROSECUTION EVIDENCE
Events Surrounding March 21, 2007
Early on the morning of March 20, 2007, someone shot Venesta Grinnage’s
vehicle, which was parked in front of her home in the 4300 block of Deborah Street in
Bakersfield.4 Grinnage’s son, Daniel Davis, frequented the house, although he did not
live there. Multiple shell casings from three different semiautomatic firearms were found
in the street. Although no suspects could be developed, a neighbor reported seeing a
burgundy Honda drive slowly by shortly after 3:30 a.m. and again about 15 minutes later.
The car had tinted windows and she could not see inside it. About 4:00 a.m., she heard
what sounded like numerous gunshots.
Just after midnight on March 21, Bakersfield Police Officers Shaff and
Williamson, both members of the police department’s Special Enforcement Unit (also
known as SEU or the gang unit) were dispatched to an address on Myrtle Street in
response to a call in which the reporting party said he had been shot at and his vehicle
had been hit with bullets. Upon arrival, Shaff contacted Lee, who reported he had been
standing by his vehicle in front of a residence in the 800 block of Deanna Way, talking
with some friends, when an older silver or green Jeep drove by and shots were fired at
4 All dates are in the year 2007 unless otherwise stated.
Some of the law enforcement officers who testified had received promotions or
retired by the time of trial. To the extent possible, we refer to them by the titles they had
at the time of events.
A number of peripheral actors in the case were regularly referred to at trial by their
nicknames or monikers. For the most part, we use the same appellations for the sake of
clarity.
Last, exact addresses were given at trial.
5.
him and his friends. Lee said the incident occurred about half an hour before he called
the police, and that he had left the area and gone home. Shaff noted that Lee seemed
unusually vague in terms of information he was giving. For instance, he would not
identify the friends who had been present, and he seemed very hesitant when Shaff asked
for specifics about the other vehicle and its occupants.
There were what appeared to be bullet holes in Lee’s vehicle, a 2000 Chevrolet
Tahoe that belonged to his father. Shell casings and bullet fragments from at least one
gun were found in the 800 block of Deanna Way, where Lee said the shooting had
occurred.
As of March 21, the area of Monterey and Inyo in Bakersfield was known to SEU
officers as an area that was controlled by the Bloods criminal street gang, a group that
was associated with the color red. The Country Boy Crips, who were associated with the
color powder blue, were active rivals of the Bloods at the time. The Bloods had
somewhat of an alliance with the Westside Crips, and were not actively quarrelling with
the Eastside Crips. The corner was a known narcotics location, with sales being made
out of the apartment complex there. The territory of a local Hispanic gang, which also
sold narcotics, began nearby.
Around 6:45 that evening, Edwin McGowan was talking to friends outside the
apartments when he heard some shots. He tried to run, but fell, having been struck. He
saw a male wearing a burgundy hoodie shooting a little gun over the top of a car. When
McGowan fell, the person ran behind him and shot him two more times, then took off
running. McGowan could see the eyes and upper nose of this person, who was not
wearing a mask. McGowan denied ever having seen defendants.
Officer Meek interviewed McGowan in the emergency room. McGowan
described the shooter as a tall, light-skinned African-American male, 17 to 21 years old,
wearing a red hooded sweatshirt, dark pants, a dark ball cap, and clear glasses. Meek
6.
confirmed that McGowan was certain the race was African-American and not Hispanic.
When asked, McGowan said he would be able to identify the person if he saw him.5
At the scene, adult-sized footprints, with a stride length suggesting the person had
been running, led from the area in which McGowan had lain in front of one of the
apartments, toward where a hole had been cut in the chain-link fence at the far corner of
the parking lot.6 Three spent .25-caliber shell casings were found near the door of the
apartment where McGowan had lain, and another was recovered from the parking lot.
All four had been fired from the same gun.
All told, McGowan was struck three times in the back. He suffered major
abdominal injuries that necessitated multiple surgeries. Taken together, his injuries were
life-threatening.
Sometime between 8:00 p.m. and 10:45 p.m. on March 22, Michael Wilcox was
inside his home in the 4200 block of Deborah Street, when he heard six to 10 gunshots.
Looking out, he saw a person, who appeared to be in the area of the Grinnage house,
shooting at a van that was driving away. The van was white with blue trim, and Wilcox
5 McGowan denied telling Meek that a light-skinned African-American male shot
him. Rather, he told Meek the shooter could have been Hispanic or “a bright-skinned”
male. McGowan told the grand jury that the shooter was a very light-skinned person, but
he could not tell his race. McGowan did not consider any of the defendants to be light-
skinned. They all appeared to be African-American to him.
On October 4, Bakersfield Police Detective Darbee showed McGowan a
photographic lineup that included a picture of Johnson, whom Darbee considered to be
light to medium-skinned. McGowan said he did not recognize anyone, and did not know
who shot him because the person had a hoodie over his face. When confronted with the
fact that he had told Meek he would be able to identify the shooter, McGowan was
hesitant to answer and asked if Darbee knew what would happen to his family if he were
to identify anyone or testify against anyone in court.
6 A canal ran parallel to Monterey Street about a block away. A traversable
alleyway ran along both sides of the canal.
7.
had seen it before in the neighborhood. The driver was an African-American male;
Wilcox could not tell if anyone else was in the vehicle.
Around 10:45 p.m., Jorge Garcia, who lived in the vicinity, was cleaning his
garage when he heard around three gunshots. Before that, there had been some males
behind his house, drinking and playing loud music. When he heard the shots, he went to
the back to see if they were having a fight, but nobody was around. Garcia returned to
cleaning the garage with the door open, then Lee walked in, said he had been shot, and
asked Garcia to give him a ride around the corner. Lee had been shot in the left arm and
the right hand and fingers. Garcia took him to the location in the 800 block of Deanna
Way at which Lee’s vehicle had previously been shot. The people there called the police
and an ambulance.
Bakersfield Police Officer Hernandez responded to the scene. At the same time,
the Kern County Sheriff’s Deputies Chandler and Moreno were responding to a report of
“an illegal shooting” in the 4300 block of Kenny Street, one street east of Deborah
Street.7 Chandler attempted to talk to Lee, but Lee did not respond to any of Chandler’s
questions. Lee was not in possession of a handgun.
Investigation revealed broken automobile glass and what appeared to be part of an
automobile window frame near the Grinnage house. On the east side of Deborah Street
were a number of spent shell casings. Some were grouped in one place, while two were
apart from the others. Eight had been fired from the same gun, while one was from a
different firearm — the same firearm as some of the shell casings recovered from the
March 20 shooting of Grinnage’s vehicle.
Chandler and Moreno contacted Lee in the hospital emergency room. Told shell
casings had been found in the 4300 block of Deborah Street, Lee said he had been
7 The 4300 blocks of Deborah, Kenny, and Eve Streets are in a county pocket;
hence, the different law enforcement jurisdictions.
8.
walking southbound in the 4300 block of Deborah Street, when he saw subjects in a
green 1995 or 1996 Jeep pull up alongside him. He saw a flash and heard five to six
shots. He described the route he ran before reaching Garcia’s garage. A blood trail was
found in that area, but no weapon.
Events Surrounding April 19, 2007
As of April 19, James Wallace resided with his mother, Kathie Oats, not far from
McNew Court in Bakersfield. Dixon’s mother and Wallace’s father, who lived on Watts
Drive in a part of town called the Country, were cousins, although Oats believed Dixon
and Wallace had only been introduced once. Wallace had never been arrested and was
not in a gang.
On April 19, Wilma Shaw, the aunt of Wallace’s best friend, held a barbecue in
the front yard of her residence in the 1300 block of McNew Court. Her guests, who
included Wallace and her nephews, Anthony and Othelon Lyons, were outside off and on
most of the day, talking and playing music in the front yard.8 When it began to get dark,
Shaw went inside to attend to her grandchildren. Not long after, she heard multiple
gunshots.
Anthony had been at his aunt’s house all day, as he usually was during this time
period. Just before 8:00 p.m., he was in the front yard, hooking up music with his cousin,
Curtis Miller, in Miller’s Tahoe. The vehicle was parked in the driveway of Shaw’s
apartment complex. Helping him were his younger brother, Othelon, and Wallace. At
some point, another cousin, Albert Darrett, arrived with his girlfriend in a black Tahoe
and parked on the wrong side of the street.
Anthony went up to the driver’s side of the vehicle to talk to Darrett, and leaned in
as they conversed. Anthony was moving away from the vehicle when he saw a tall
8 For the sake of clarity, we refer to Anthony and Othelon Lyons, and Mikeshiea
and Myeshia Herring, by their first names. No disrespect is intended.
9.
person, weighing about 200 pounds, in the middle of the street. The person, who was
dressed all in black, started shooting toward the house. Anthony only saw one person,
and could not tell if it was a man or a woman or the person’s race, because the person had
on a hoodie with the hood up.9
Anthony ran toward the back door of Shaw’s residence. He believed Wallace was
by Miller’s truck, and Miller was inside the truck. Wallace was running ahead of
Anthony toward the house, then Anthony saw Wallace fall down. Anthony ran through
the back entrance and out the front. Wallace was on the front porch, lying on his stomach
on the step in a pool of blood.
Anthony believed he heard about five shots. He was struck above the right hip.
The bullet remained in his body at the time of trial, as he refused to have it removed for
fear of possible complications.10
9 Anthony had no vision in his right eye, having been shot in 2004. He was also
grazed in the head in 2005. His older half-brother, Deshawn Peterson, was shot and
killed on Feliz Drive about four years earlier. Anthony had met Johnson, who was
Peterson’s cousin, one time about six years earlier. Anthony was a child when he last
saw Johnson, and would not recognize him if he saw him again. He did not see Johnson
on the night of April 19, although he had heard that Johnson used to cut people’s hair in
the area.
At some point, Anthony was shown photographic lineups containing Johnson’s
and Lee’s pictures. Anthony did not identify either defendant as one of the shooters. He
said it was dark and he did not get a good look at the people who shot him.
10 Sheriff’s Sergeant Marshall interviewed Anthony at the hospital on the evening of
the shooting. Anthony related that he saw a Black male, about five feet eight or nine
inches tall, wearing a black hoodie, walking from west to east across the street near a
white van. The shooter was by the white van, and when the shooting started, Anthony
ran. He was in the parking lot of the apartment complex when he felt himself get hit with
a bullet. When Marshall explained that he really needed the bullet as physical evidence,
Anthony agreed to have an elective procedure so it could be retrieved. He did not
express any hesitation about having the surgery.
10.
As of April 19, Albert Darrett resided in Bakersfield with his girlfriend, Vanessa
Alcala, and her mother and child. Alcala was pregnant with Darrett’s son.
Darrett worked in oilfield construction.11 On April 19, he needed to cash his
paycheck, so he picked up Alcala and they drove in his black Chevrolet Tahoe to the
store on the corner of Feliz Drive and Cottonwood Road. After he cashed his check, they
went south on Cottonwood Road to the first street, McNew Court, and went to Shaw’s
house. Shaw was Darrett’s aunt, and it was his habit to stop by her house for a few
minutes every day after work. On April 19, family and friends were in her driveway.
Curtis Miller was one of the cousins who was there. Like Darrett, Miller drove a black
Chevrolet Tahoe, which was parked at Shaw’s residence.
Darrett pulled over on the wrong side of the street (facing west) next to the
driveway, left his vehicle running, and started talking to his cousin, Anthony, who was at
the driver’s side door. Alcala remained in the passenger seat. Darrett and Anthony
conversed for a couple of minutes. It was light out, but getting dark. Darrett saw two
people walking up the opposite side of the street, headed in the direction of Cottonwood
Road. They were about halfway down the block when he first saw them, and he did not
pay much attention to them. He did not see either of them get out of an automobile or
come out of a house, and he saw nothing in either one’s hands.
Darrett continued to talk to Anthony, then glanced at the two and saw them
crossing the street in a diagonal direction toward him. They crossed the street together,
then came up to the car and spread out so they were a couple of feet apart. One was
11 Darrett admitted being booked into the Kern County jail four days before the
shooting, and stating at that time that he associated with the Crips. He denied saying,
however, that he wanted to be kept away from Country Boy Crips. He initially denied,
but then admitted, once having a tattoo on his arm that read “805 ESC,” meaning the area
code for Bakersfield and Eastside Crip. He was about 15 years old when he got the
tattoo. He was older by the time of trial and not in a gang, although he knew people who
were in the Eastside Crips.
11.
toward the passenger’s side of the vehicle, while the other was right in front of it. Both
were no more than five feet from the vehicle, and both then started shooting. One shot
toward the apartment complex, while the other shot toward the vehicle. Darrett tried to
duck. He did not hear anything from Alcala or see what she or anyone else did.
After the shooting stopped, Darrett saw the two men running back in the direction
from which they had come. Although he did not see their faces, he believed they were
African-American. They appeared to be around 5 feet 10 or 11 inches tall, and were thin.
Although Darrett could not tell their approximate ages, he believed they were younger
than him.12 Both were dressed all in black. At least one, and possibly both, wore a black
hooded sweatshirt with the hood pulled over his head. Darrett tried to run them over, but
was unsuccessful because they ran back the other direction, toward Cottonwood Road.
They separated, with one running north toward Feliz Drive, and one running south
toward Cannon, via the dirt alleyway next to Shaw’s apartment. Darrett did not see either
of them taking off their clothes or trying to jump a fence to get away.
Halfway up the block, Darrett turned to look at Alcala. She was bleeding and
unresponsive, and he realized she had been shot. He drove her to Kern Medical Center.
He did not see either of the shooters exit onto Feliz Drive or any cars leaving or trying to
flee, but he was not really paying attention.
At 7:58 p.m., the Kern County Sheriff’s Department received a 911 call from the
McNew Court address, reporting a shooting. Senior Deputy Lostaunau arrived four
minutes later, and the helicopter and other deputies shortly after that. Lostaunau, who
was in the gang unit at the time, had driven down several of the streets in the area before
the shooting was reported, looking for people to contact or anything that appeared to be
out of the ordinary. He did not come across any parked car containing three African-
12 Darrett was 31 years old as of December 19, 2008. Dixon was between five feet
six and five feet seven inches tall.
12.
American males or make contact with a group of three African-American males on foot.
He did not see anybody jumping fences or running, or any vehicle fleeing at a high rate of
speed.
Lostaunau parked a few feet west of the driveway into the apartments and found
empty cartridge casings on the ground at his feet when he got out of his car.13 He also
smelled gunpowder and saw a person down on the ground in front of the apartment. He
could hear screaming coming from the apartment.
Lostaunau approached the apartment and asked what happened and who did it.
Someone inside yelled that it was a Black male, and Lostaunau broadcast that over his
radio. He then started attending to Wallace. When he put his hand on Wallace’s back, he
felt it rise at least once with a breath. Within seconds, however, Lostaunau could feel no
more breathing and was unable to find a pulse. Deputy Adams, a former paramedic,
determined Wallace was deceased.
Around 8:00 p.m., Leon Reyes was asleep in the back room of his house on the
south side of McNew Court, in the same block as Shaw’s residence, when he heard a
racket at the fence separating his front yard from his back yard on the west side of the
house. He stepped out onto his back porch and saw someone jump the fence separating
13 Five spent .38-caliber Super Plus P shell casings were found. That kind of
ammunition normally is used in semiautomatic firearms. No fingerprints were found on
the casings. The core of a round of jacketed ammunition was found in the front
passenger side door of Darrett’s vehicle. The spent shell casings found on McNew Court
were fired from the same firearm. A partial fingerprint, which could not be identified
when compared to the prints of defendants, Darrett, and Alcala, was found on the rear
passenger window exterior.
Detective Armendariz investigated a number of vehicles at or near the scene of the
shooting. None were registered to or associated with any defendant. The white van
parked across the street and to the west of Shaw’s residence belonged to the Fuentes
family.
13.
his back yard from his neighbor to the south. He could not see who it was, but the person
could have been wearing dark clothing.
Reyes immediately went to the front yard to check on his car. As he did, he saw
Deputy Ollague going down McNew Court. Reyes informed Ollague that a subject
wearing white tennis shoes and dark clothing had just gone over his fence. Ollague and a
K-9 deputy searched the front and back yards, but found nothing.
One of the units responding to the scene was the helicopter, Air One. It did not
report anyone who appeared to be fleeing the scene, although it did report a subject
walking on Feliz Drive near Cottonwood Road, a location one block north of the shooting
and east of where the dirt alley from McNew Court came out onto Feliz Drive. The
subject appeared to be wearing dark clothing and white shoes. Contact was made with
this person, a teenager, who was searched, questioned, and released.
Just before 8:00 p.m. on April 19, Rebecca Martinez, who lived in the 1200 block
of McNew Court, heard five to six gunshots, a scream that sounded female, and tires
“peeling out.” Martinez called 911. When Sheriff’s Sergeant Rennie contacted her, she
pointed him to the house directly across the street, where a large dog was barking near
the east fence line. Martinez suggested Rennie check that yard, because the residents
were not home and the dog rarely barked.
Rennie checked the house and saw that it appeared to be secure. When he looked
under one of the vehicles parked in the driveway of the house immediately to the east,
which was across the street and four houses down from the location of the shooting,
however, he saw a small pile of dark clothing that consisted of a dark-colored baseball
cap bearing the Boston Red Sox logo (a red B), a Nike brand U.S.A. Basketball Michael
Jordan jersey, a dark blue or black Navy-style Volcom-brand pea coat, and a beige or tan
American Dawn-brand smock-type shirt. A Samsung cellular telephone was found in
14.
one of the coat pockets. The clothes did not belong to anyone in that household, and had
not been there earlier that evening.14
Senior Deputy Little contacted Othelon at the scene. After learning that Othelon
had witnessed some of what happened, Little took Othelon to his patrol car, activated his
tape recorder, and took his statement. Othelon was cooperative.
14 From March 16 through April 12, Johnson attended Bakersfield Barber College.
Students were required to wear a tan, short-sleeved smock. The school generally issued
students a Brick McMann-brand smock with an American Dawn logo.
Following their arrests, DNA samples were obtained from defendants and
compared to DNA extracted from various places on the items of clothing. All three
defendants were among the five or more contributors to the DNA found on the coat.
Because of the number of contributors, the astronomically rare frequencies (probability of
finding that genetic profile in the general population) typically found with a single-source
genetic profile were not obtained. Thus, for example, although Johnson was included as
a contributor to the mixture found on the coat collar, approximately one in 25 people
could also have had the same profile and been contributors. The frequencies were
similarly common with respect to Lee and Dixon. Where such common frequencies were
obtained, Gary Harmor, the senior forensic serologist at the Serological Research
Institute who conducted the DNA analysis in this case, could not say with certainty that a
particular defendant touched the particular item.
DNA extracted from various places on the smock was also a mixture of
contributors, with all three defendants included. Frequencies again were common, except
with respect to the three-contributor mixture found on the inside front collar. Johnson’s
genetic types showed up strongly enough that it could be determined only approximately
one out of every 1.1 million people would have genetic types consistent with what was
found in the evidence compared to Johnson.
DNA extracted from the jersey was also a mixture of contributors. Lee was
excluded as a possible contributor. Dixon could not be excluded. Johnson was included
as a possible contributor; with respect to the mixture found on the inside front collar, only
one in 8.8 million people could have the same types. A frequency calculation of that
magnitude was quite significant where a mixture was concerned.
DNA extracted from the sweatband of the cap was a mixture of at least four
contributors. Johnson could not be excluded as a contributor, but the statistical analysis
showed that approximately one in 1144 persons would have a type similar to that
contributor. Lee and Dixon were excluded as contributors to the DNA on the baseball
cap.
15.
Othelon told Little that he was sitting in the backseat of his cousin’s truck, eating
and hooking up music, when his cousin Darrett and Alcala pulled up. They were facing
west, and Anthony, Miller, and Wallace were standing by the driver’s side, talking to
Darrett. Othelon heard shots. He opened the door and looked back, and saw one of the
assailants jump the fence into a field. This person was wearing a black hoodie with the
hood up, and a white Pro Club shirt over the black hoodie. He was African-American, 18
to 20 years old, around six feet tall and 180 to 185 pounds, and with a dark complexion.
Othelon did not see this one with a gun. The other one ran down the alley. He was
dressed all in black. He had a handgun pointed toward Shaw’s house and was running
southbound. He was African-American, 18 to 19 years old, about 5 feet 10 inches tall,
weighed 160 or 165 pounds, and was dark-complected. One of the two had a “punk”
hairstyle, a “short bush [A]fro.”15 The gun was all black and sounded like a nine-
millimeter. Nothing was said before the shooting started. After, everyone ran into the
house. Wallace only made it to the porch.
Othelon related that he did not see any cars come up and stop anywhere in the area
before the shooting started, and that he did not notice the shooters until after they had
stopped shooting. Othelon estimated he heard at least eight shots, and that it sounded like
they all came from the same gun. He did not recognize either of the assailants, although
he believed he would probably recognize them if he saw them again.16
15 Little was in contact with Johnson sometime after the shooting. Johnson did not
have an Afro, nor was a small Afro wig found. Little also saw Dixon two days after the
McNew Court shootings. There was no indication Dixon shaved or cut his hair in the
preceding couple of days, nor were any wigs found on him.
16 At trial, Othelon testified that just before the shooting, he was sitting in Miller’s
truck, installing stereo speakers. He further testified that the only time he ever saw Dixon
was when they both were in prison sometime after the shooting, but the two were in
different locations and never met. Beyond that, Othelon claimed that he was unable to
remember anything, did not want to testify, and was not going to identify anyone. He did
not remember talking to Little or what he told the grand jury.
16.
When brought into the hospital, Alcala was in a deep coma. She had a penetrating
injury to the posterior portion of the occipital area of the brain, with the entry site on the
right lower back portion of the skull and the bullet’s direction of travel upward to the left,
and back to front. There were bone and metallic fragments in her brain. She died during
surgery performed in an attempt to control her continued rapid bleeding. The cause of
death was gunshot wound of the head. Alcala was pregnant with a boy whose gestational
age was approximately 12 to 14 weeks. The fetus was medically healthy and died as a
result of the mother’s gunshot wound to the head.
Wallace suffered an entrance gunshot wound to the right side of his chest,
underneath the armpit, with an exit wound in the left shoulder area. The bullet traveled
right to left and slightly upward. The absence of soot or stippling indicated the weapon
was more than three to four feet from him when the shot was fired. The cause of death
was gunshot wound of the chest. As the bullet injured internal organs and major
vasculature of the heart, he lived a matter of a minute to minutes after he was shot.
The day after the shooting, Marshall and Little began investigating the Samsung
cell phone found in the coat pocket. Marshall ultimately was able to determine the
phone’s number. At about 2:00 p.m., the phone rang, and the caller asked for “Dodo.”
Little checked some law enforcement databases and discovered that Dixon used the
moniker Dodo. Little obtained photographs of Dixon maintained by law enforcement.
Kern County Sheriff’s Senior Deputy Pratt spoke to Othelon on February 1, 2008,
while Othelon was in prison. Othelon admitted being a gang member. He said he was
Eastside or Stroller Boys, and that at the time of the shooting, things had been “pretty
tense” between Eastside and the Country. Pratt again talked to Othelon on December 10,
2008, after Othelon paroled, with respect to a rumor Pratt had heard about Othelon being
threatened by Dixon while in prison. Othelon denied being threatened and said that if
Dixon had threatened him, Othelon would have “taken him out.” Othelon told Pratt that
he used to live in the Country and knew Dixon from his childhood, when they would ride
dirt bikes together. Othelon said Dixon told him, as kind of an apology, “I didn’t know it
was your auntie’s house.”
17.
They revealed that Dixon bore tattoos related to the Country Boy Crips and its Watts and
Lotus clique. There were photographs of Dixon stored in the phone’s memory. The
screensaver for the phone read, “Watts wit it.”
Further investigation into Dixon led Little to an apartment in the 2600 block of
Chandler Court, Bakersfield, which was the residence of Myeshia Herring. Myeshia
related that Dixon had called her and said he needed a place to stay because of some
parole issues. She texted him the address. He moved in Wednesday, April 18; she did
not see him at all on Thursday, April 19; they left together on Friday, April 20; when she
got back early Saturday morning, he was not there, but he was there when she got up later
that day; later on Saturday, he left with Myeshia’s friend, Gina Stewart, in a white 1990’s
Chevrolet Caprice. Little examined Myeshia’s cell phone, which contained the number
of the Samsung cell phone found in the coat pocket in the address book under the name
“friend.”
Little told Myeshia to tell Dixon to call Little when she saw Dixon. About three
hours later, Dixon contacted Little and then voluntarily came to the sheriff’s office. Little
took identifying photographs and more detailed photographs of Dixon’s tattoos. Dixon,
who was wearing dark blue pants and light blue boxers, was allowed to leave after he was
photographed.
On April 25, Little interviewed Myeshia again.17 Myeshia reiterated that Dixon
needed a place to stay, and she simply replied by text message to whatever number he
used to contact her. Dixon moved into the apartment Wednesday and spent the night.
Thursday, the night of the McNew Court shootings, he was at the apartment in the
daytime, but not at night. When Myeshia woke Friday morning, Dixon was not there, but
17 At trial, Myeshia either denied, or testified she did not recall, telling Little
anything about Dixon during the interview. A video recording of the interview was
shown to the jury.
18.
he did spend the night Friday. Myeshia related that she had Dixon’s number stored in her
phone as “friend,” and that he had grown suspicious of her after Little interviewed her the
first time.
Myeshia related that her nickname was “Messy 1,” and that she had known Dixon
since they were in junior high school. She said she saw Dixon on the day he got out of
prison. With respect to the Samsung cell phone found in the coat pocket, Myeshia related
that her sister Mikeshiea gave the cell phone to Dixon shortly after his release from
prison. Myeshia said that every time she called that phone, Dixon answered.
Myeshia related that about a week before this interview, Dixon called Myeshia
from a number she did not recognize. When she asked him about why he was calling
from that number, he said he did not have his other phone because he had lost it. When
she asked how he lost it, he told her not to worry about it.
Myeshia said she had known Johnson for several years. He had a girlfriend who
was Hispanic and several years older than him. Myeshia said she had never known
Johnson and Dixon to be close. Dixon was always by himself or with “the girls.”
Meanwhile, Marshall obtained a search warrant for the subscriber information and
tolls for the Samsung cell phone found in the coat pocket. Records listed the phone’s
subscriber as Dominique S. Clayton, with an address in the 4400 block of Balboa Drive,
Bakersfield. The phone was activated on March 10. On the evening of April 27, Rennie
and Little went to an apartment in the 4400 block of Balboa Drive — the same street
address as the subscriber of the phone found in the coat — to interview Mikeshiea.
Mikeshiea’s middle name was Dominique, and she had a child by Gary Clayton.
Mikeshiea gave Little and Rennie permission to enter to look for Dixon. They did
not find him. Mikeshiea denied knowing anyone named Dominique Clayton or ever
giving Dixon a cell phone, although she admitted knowing someone named Dodo and
identified Dixon’s photograph.
19.
Little examined Mikeshiea’s cell phone. The screen read “Messina #2.” When he
inquired of Mikeshiea, she said that she and her sister Myeshia used the names “Messy 1”
and “Messy 2.” Mikeshiea said she was Messy 2, while Myeshia was Messy 1. Little
found no reference in Mikeshiea’s phone’s contents to the number of the Samsung cell
phone found in the coat pocket or to the name Dodo. There was, however, a number for
“Pook,” whom Mikeshiea identified as Columbus Holford and with whom Little was
familiar.18
Cell phone records showed calls between Dixon’s phone that was found in the
coat pocket at the McNew Court crime scene and Mikeshiea’s and Holford’s phones.
18 Mikeshiea testified at trial that she and Myeshia never went by the nicknames
Messy 1 and Messy 2. On Mikeshiea’s MySpace page, however, she referred to herself
as Messy, while people who posted messages to her referred to her as Messy or Messy 2.
At trial, Mikeshiea testified that she had never heard of or called the number of the cell
phone found on McNew Court and did not know Dixon personally, although she knew
him to be a friend of her sister. She denied ever giving him a cell phone.
Myeshia also denied telling Little the things to which he testified. She testified
that she had only known Dixon, whom she knew as Dodo, for a couple of years.
Although she was aware he went to prison, she did not meet with him the first day he got
out. She did not know if Dixon had a cell phone. She and Mikeshiea did not help him
get that phone. Myeshia had seen Johnson and knew who he was, but had not spoken to
him. Myeshia knew Lee, as he had lived on the same street as her grandmother, and he
and Myeshia went to the same church. However, she denied ever talking to him.
Myeshia admitted allowing Dixon to use her address as a mailing address, but denied that
he ever moved in with her. She denied ever texting Dixon her address.
The phone found at the scene listed Messy 1 and Messy 2 as the first two contacts
in its address book. A text message stored in the phone from Messy 2, dated April 21,
read, “Friend, are you okay? Call me. It’s important. Please call me.” Another text
message in the phone, dated April 16 and from Messy 1, gave an address in the
2600 block of Chandler Court. The address, which was the same as that determined to
belong to Dixon, was Myeshia’s apartment. One of the text messages from Messy 1 was
directed to Dodo. One of the texts, dated March 27, read, “F-u-c-c U.” Kern County
Sheriff’s Senior Deputy Pratt had seen that spelling in the course of gang investigations.
According to some people, “CK” is not used because it stands for “Crip Killer.”
According to others, “CC” stands for “Country Boy Crips.”
20.
Records further showed a series of eight calls, beginning at 7:19 p.m., made from
Dixon’s phone to a number determined to belong to Lee’s cell phone. A search warrant
was obtained, and records seized, for Lee’s phone number.
Cell phone and cell tower records for Dixon’s phone showed a grouping of calls
occurring in the vicinity of the cell phone antenna with coverage of the McNew Court
area, from 7:14 p.m. through 7:45 p.m. The first six were made on the antenna consistent
with the shooting scene in the 1300 block of McNew Court. The seventh call, which was
made beginning at 7:45 p.m., was almost four minutes long. It began on the antenna
consistent with the 1300 block of McNew Court, but ended on the antenna consistent
with the 1200 block of McNew Court. The eighth call did not register on an antenna,
which was consistent with the phone being powered off, either intentionally or because
the battery died. This last call was an incoming call from Lee’s phone that occurred at
7:54 p.m. Records further showed activity that was consistent with Dixon’s phone being
in the area of Inyo and Monterey at 6:45 p.m. on March 21.
Records for Lee’s phone showed that when the 7:19 p.m. call was received from
Dixon’s phone, Lee’s phone was north of Highway 58, which in turn was north of
McNew Court. By the time the 7:25 p.m. call was received, Lee’s phone had moved
south of Highway 58, in an area covered by the antenna that had coverage of the McNew
Court vicinity. The third call from Dixon’s phone to Lee’s phone occurred at 7:40 p.m.
Dixon’s phone was on the antenna that encompassed the 1300 block of McNew Court.
The next incoming call was the nearly four-minute one; Lee’s phone was still on the
same antenna. The outgoing call at 7:54 p.m. was moving away from that antenna. The
next call, made at 8:02 p.m., which was after the shootings were reported, was from the
antenna that covered Cottonwood Road and Highway 58. The phone was probably north
of the highway at the time; the call was outgoing to a number associated with Joseph
Gage, whose moniker was “Gage.” Dixon’s phone had contact with that number before
the shootings.
21.
Events Surrounding August 11, 2007
Sometime after 9:00 p.m. on March 25, Adrian Bonner was getting a tattoo at a
tattoo parlor in the vicinity of H and 20th Streets, in downtown Bakersfield, when Lee
and a light-skinned, green-eyed Black male came in. Bonner knew of Lee, although he
did not know him personally, because each had once dated Saleta Roseburr. Bonner last
saw Lee about a month before Lee walked into the tattoo parlor.
When Lee walked in, he and Bonner made eye contact, and Lee acknowledged the
people he knew there. He asked Bonner’s female friend if this was her “dude.” When
she said yes, Lee talked a little more and then walked back outside.
Lee was outside a minute or two. Bonner did not know what he was doing. Lee
then walked back inside, went up to Bonner, and asked if Bonner was a Blood. He also
said something like, “[T]his Little Gunner Loc from South Side Crip. I just want you to
know where you’re at.” Bonner was aware the Bloods were a criminal street gang and
that their color was red. He did not believe he was wearing any red that night.
The tattoo artist said it was a place of business and that they did not have to worry
about any of that there. The situation caused Bonner to start feeling nervous, and so he
asked for a cell phone so he could call a family member and let that person know his
whereabouts. His girlfriend handed him her phone, and he dialed all the relatives he
thought would be home, but got no answer.
During this time, Lee produced a cell phone and started showing everyone the
pictures on it and telling them to look at what was done to his hand, which was bandaged,
and his truck. Curious, Bonner asked to see. He saw a picture of injuries to Lee’s finger,
and of a truck with bullet holes in the windshield.
The artist was still doing Bonner’s tattoo, and Lee went outside and came back in
a couple more times. At some point, one of the other males said, “your homeboy Rifle’s
here.” Lee walked outside, then returned a few seconds later with Johnson, whom
Bonner had never seen before. Lee sat down, but Johnson kept walking in and out of the
22.
parlor and looking at Bonner in an awkward kind of way. By this point, Bonner was
feeling very intimidated.
When the tattoo was finished, Bonner got up, shook the artist’s hand, and paid
him. Lee was sitting on the couch a few feet from Bonner, talking about how his pain
medicine had him tired. Bonner also shook another male’s hand. He then extended his
hand to the third male, but that person just looked at him and said, “nah, Watts.”19
Bonner knew what this meant and that Watts was located in the Country.
Bonner turned to leave. As he was on his way out, however, Johnson, who was
standing in the doorway, struck him in the face with his fist. The person to whom Bonner
had extended his hand also started hitting him. Both Johnson and the other man struck
Bonner multiple times. Dazed and almost unconscious, Bonner tried to cover up as he
lay on the floor of the tattoo parlor, being hit and kicked. He did not know where Lee
was.
At some point, the blows stopped. Bonner got up and ran. He could hear voices
coming from the alley, threatening to get him and kill him. He ran until he felt he was a
safe distance away, ending up a couple of blocks away at a men’s shelter. He went inside
and stayed there for 45 minutes to an hour, then one of the residents was able to contact
Bonner’s girlfriend. She took him to his cousin’s house, and Bonner contacted his father.
Although Bonner did not give a statement to police that night, his father did.
Bonner was not a Blood, but he had friends and family members who were. He
associated with Bloods “all the time.” The Eastside, Westside, and Country were the
Bloods’ rivals. As of March, Bonner was acquainted with Daniel Davis (Grinnage’s
son), who lived on Deborah Street. Bonner would regularly visit Davis at that house, as
would Bloods. In Bonner’s estimation, that house was a Blood hangout. A couple blocks
away, on Deanna Street, was a house where Country Boys tended to congregate. Bonner
19 Neither of these males was Dixon, who was not in the tattoo parlor.
23.
had seen Lee there on a couple of occasions. Lee was driving a Tahoe at the time, the
same one in the pictures in Lee’s cell phone. At the time, the Bloods did not really have
a territory, just certain places they would be at. One of these places was on the east side,
near Monterey Street.
Between March 25 and August 11, Bonner saw Lee a couple of times in traffic.
Both times, Lee was in a black Volkswagen Jetta or Passat.
On August 11, Bonner was living with his sister in the southwest part of
Bakersfield. About 10:30 that morning, he borrowed a car and drove to the Denny’s on
White Lane. He was alone. While he waited for his order, which he had already called
in, he talked to Saleta Roseburr, who worked there. Bonner felt someone staring at him,
and turned to see a person he knew as “Cutty Pete.” Bonner knew him from a prior
incident in which he and Bonner’s cousin had had an altercation. At that time, Cutty Pete
said he was from the Country, meaning he was a Country Boy Crip.
Bonner and Cutty Pete exchanged words. Cutty Pete threatened to hurt Bonner,
who laughed at him. Bonner got his order and got back in his vehicle, at which time
Cutty Pete came to the door of the restaurant and started “[t]hrowing up signs” through
the window and saying things Bonner could not hear. This occurred shortly after
11:00 a.m. Bonner did not see Cutty Pete any other time that day.
Later that morning, Bonner picked up his friends, Paul and Dwayne, who lived
directly south of the Foods Co. at White Lane and South H Street, and headed toward a
barbershop in the vicinity of Real and Wilson Roads. They were at the barbershop for
approximately three hours. Another friend was there, and he asked for a ride. Bonner
took him home, then took Paul and Dwayne back to their house.
Bonner next went to the Taco Bell by Foods Co. to eat. It was around 4:00 or
5:00 p.m. Although he was wearing all red that day, he was not trying to dress like a
Blood; it simply happened to be what he had on. As he was leaving the parking lot, he
saw Lee two, to two and a half, car lengths away from him in a 2001 or later small, four-
24.
door, reddish-burgundy car that Bonner believed was a Suzuki Forenza. Lee, who
appeared to be alone, did a double- or triple-take, and Bonner made eye contact with him.
Bonner then pursued him in the vehicle, and ended up directly behind him, headed east
on White Lane. Bonner wanted to fight Lee because of what had happened at the tattoo
parlor.
The light at South H Street and White Lane turned red, and both cars stopped. It
looked like Lee was going to go straight, but then he ran the red light and turned left,
heading north on South H Street. Bonner did not follow, but instead made a U-turn and
headed back to Paul’s house. He wanted to let Paul know that Lee was in the area.
Bonner was concerned that if Lee had seen Bonner in the car earlier in front of Paul’s
house, something could happen at the house.
Bonner remained at Paul’s house for five or 10 minutes, then headed out to return
the car. His route took him north on South H Street, then west on Planz. As he came to
where Real Road dead-ends into Planz, the light turned red for traffic on Planz. Bonner
stopped. His was the fourth car back from the intersection. He was listening to music
when he heard a loud popping sound and felt his body jolt. Out of the corner of his eye,
he saw a burgundy vehicle passing by the passenger side of his car. He did not know if it
was the same car Lee had been driving earlier, although it was the same color, or even if
the shots came from that car. He did not see who or how many were in the vehicle.
Bonner knew immediately it was a gunshot, but did not know if it was more than
one, as it all sounded like one drawn-out noise. He felt something hit him, and checked
himself over. His vision blurred, and when he began to move, he started to feel a burning
sensation in his abdomen. He tried to get out of the car, but could not move his legs. He
felt only tingling in his lower body. He was able to get the car to roll, and so made a
right turn onto Real Road, and the first left turn possible, which was into the driveway of
someone’s house. Someone there called 911 and an ambulance. About 20 minutes had
elapsed from when he saw Lee on South H Street to when he was shot.
25.
When talking to the officer at the scene, Bonner never mentioned Lee or the other
defendants. He said he did not know who shot him and could not describe the suspects,
although he thought the shooter was the person with whom he had had the altercation at
Denny’s. In light of Cutty Pete’s belligerence and aggressiveness, Bonner had
considered the incident with him more significant than the incident with Lee in the
parking lot.
Christopher Calloway lived at the house on the corner of Real Road and Planz.
Around 7:22 p.m., he was outside when he heard at least two gunshots. He saw a car
waiting at the red light. A second car pulled up on the right side and someone in the
second car shot toward the other car. Calloway believed there were three individuals in
the car from which the shots were fired. The shooter was a darker-skinned African-
American male wearing a black hat or do-rag, sitting toward the left side of the vehicle in
the back seat. The driver and front passenger also were African-American and, Calloway
believed, male. The shooter’s arms, shoulders, and head were outside the window until
after the second shot. The gun was a black handgun. The car was a burgundy color,
possibly a newer-model (late-1990’s or early 2000’s) Ford Taurus or something of that
nature. Calloway believed it was a four-door model. The car rounded the corner and
then sped north on South Real Road. Calloway could not say whether any defendant was
in the car from which the shots were fired.
Ruben Gonzaga and some friends were outside a house on the south side of Planz,
talking, when Gonzaga heard a loud pop. He saw gun smoke outside one of the windows
of a cherry red, four-door car — possibly a Chevrolet sedan or Ford Taurus — that sped
off. He believed he heard two shots. He could see at least two people in the car, but
believed there may have been three or four. Gonzaga was unable to tell who in the car
was shooting or the race of anyone in the vehicle.
Talia Zarate and Bryan Kunzmann were traveling westbound on Planz and had to
stop for a red light at Real Road. There was one car stopped in front of them. They had
26.
been at a full stop for a couple of seconds when a small, four-door, maroon or cranberry-
colored car pulled up beside the vehicle stopped in front of Zarate. A young, dark-
complected African-American rolled down the driver’s side rear window. He was
wearing a black beanie cap and had a goatee. Half of his body came out of the vehicle,
and he started shooting a black gun at the vehicle in front of Zarate. He was using a two-
handed grip. Zarate did not know if anyone other than the shooter and the driver was in
the car. She did not know if any defendants were in the car.
Kunzmann described the car as being either dark red or burgundy. It was a late,
four-door model, and either a Ford Taurus or something with that type of rounded body
style.20 The shooter, whose arms were outside of the car window, was an African-
American male in his early 20’s, wearing a black sweatshirt or long-sleeved T-shirt, and a
black hat or beanie. He had a neatly trimmed goatee. There were three people in the car,
all African-American males: the driver, the front passenger, and the driver’s side rear
passenger.
Bonner was shot in the right side of the chest, close to the armpit.21 The bullet
caused major, life-threatening abdominal injuries, including the loss of a kidney and
damage to the spinal cord. He underwent almost immediate surgery to control internal
exsanguinating hemorrhage. As a result of the gunshot wound, Bonner was left a
permanent paraplegic. The bullet was not recovered, because it was lodged in the spine,
and the neurosurgeons felt it would be too dangerous to attempt to remove it.
20 In his 911 call, Kunzmann said the car was red and looked like a Toyota Corolla.
21 He suffered a second injury in the same area, but it could not be identified with
certainty as a bullet wound. When Kunzmann spoke to him immediately after the
shooting, however, Bonner said he had been hit twice. In addition, Officer Vasquez saw
two bullet holes in the car, one on the right rear passenger quarter panel, and the other on
the passenger-side front by the door handle. Two expended nine-millimeter shell casings
were found on the east side of the intersection. They had been fired from the same gun.
27.
Later that month, Kunzmann was shown three photographic lineups, one
containing each defendant. He did not identify, select, or eliminate anyone. However,
records for Lee’s cell phone showed that calls made or received between 10:17 a.m. and
3:52 p.m. were routed through the cell antenna site near Lee’s residence on Myrtle Street.
Calls between 4:22 p.m. and 4:34 p.m. were routed on the antenna at South Real and
Wilson Roads. Calls between 4:58 p.m. and 6:48 p.m. were routed on the antenna that
covered an apartment complex at Eye Street, although the calls moved from the side of
the antenna facing due north to the side facing southeast during that time. Between
6:48 p.m. and 7:01 p.m., there were several calls between Johnson’s residence on
Thoreson Court and Lee’s phone. At 7:18 p.m., a call was made from Lee’s phone that,
given the cell phone tower on which it originated, was consistent with the phone being to
the east, or at the corner, of South Real Road and Planz. At 7:28 p.m., the antenna
registered a call that was consistent with the phone being in the Thoreson Court area.
The phone then moved north.
On August 16, Kern County Sheriff’s Senior Deputy Little, and Bakersfield Police
Detectives Heredia and Darbee, flew to Las Vegas, Nevada, to interview Sara Agustin, a
woman who had been in a prior relationship with Johnson. The detectives returned her to
Bakersfield, where she pointed out various locations to them. Agustin also provided
telephone numbers of people she knew during the time she lived with Johnson, together
with photographs and credit card statements.
Shortly after 8:00 p.m. on August 23, Bakersfield Police Officer Finney and his
partner, Officer Ursery — both assigned to SEU — were on patrol on Dobrusky Drive in
Bakersfield, an area within the traditional boundaries of the Westside Crips. They
observed a gray Nissan, motor running, parked in front of a house from which Finney
previously had seized firearms. Columbus Holford, who lived there and whom they
knew to be a Country Boy Crip with the moniker “Pookie,” was speaking to three
subjects inside the car.
28.
As the officers approached, Finney recognized Dixon as the Nissan’s driver.
Aware Dixon was on parole, Finney yelled at him a couple of times to turn off the car
and step out so he could perform a parole search. At first there was no reaction, but then
Dixon accelerated away. A vehicle pursuit ensued.
In front of an apartment complex in the 100 block of L Street, Dixon stopped, and
the occupant in the front passenger seat jumped out of the vehicle. Ursery pursued him
on foot. The individual was a dark-skinned African-American male, six feet or six feet
one inch tall, about 175 pounds, with short hair. Ursery was unable to catch him.
Meanwhile, Dixon again sped off. At one point, he drove through the 200 block
of Eye Street, then subsequently returned to the apartment complex on L Street. There,
the car again stopped. The driver’s door opened, then, after about 15 seconds, closed
again and the pursuit resumed. On northbound Chester, the vehicle pulled into the center
turn lane in the 200 block and slowed significantly. Dixon jumped out and ran,
eventually climbing the back wall of the parking lot for an apartment complex in the
200 block of Eye Street. The vehicle continued on until it hit a curb and came to a stop.
Finney followed it and found Lee sitting in the rear passenger-side seat. In a partially
unzipped lunch pouch on the left rear seat, directly behind the driver, were a loaded Tec-
9 pistol and additional rounds of ammunition.
The Nissan had been reported stolen from an apartment in the complex in the
200 block of Eye Street, although investigation revealed it had not actually been stolen.
Officers determined that Dixon had jumped a wall to the east of the complex. On the
west side of the wall, in the apartment complex’s rear parking lot, were three live rounds
of ammunition. One of the cars parked in the lot at the back of the complex at that time
was red.
Dixon was arrested shortly after midnight on August 24. He was taken into
custody at his residence in the 2900 block of Half Moon.
29.
On October 1, Kern County Sheriff’s Senior Deputy Lopez and other officers
executed a search warrant at the residence on Myrtle Street in which Lee lived with his
father. Lee was in custody at the time. Lopez found letters referencing gang activity that
were addressed to Lee and appeared to be from his brother in prison, photographs
depicting persons throwing gang signs, and rap lyrics containing references to gang
activity. Also found were a gas mask, some articles of powder blue clothing, multiple
rounds of various calibers of ammunition, and a baggie containing a usable amount of
marijuana.
That same day, Lopez and his team executed a search warrant at the apartment in
the 2900 block of North Half Moon at which Dixon had been residing. Dixon was in
custody at the time of the search. In addition to some bills addressed to Dixon at that
address, officers found a California identification card for Johnson.
Sara Agustin’s Testimony
Sara Agustin, who testified under a grant of immunity, first met Johnson in late
September 2006, when he was 20 years old and she was 36. She was driving to a market
on Cottonwood Road and Casino to purchase marijuana, when she saw Johnson and his
friend, “Fat-Fat,” walking to the market. Agustin pulled over and asked Johnson if he
knew where she could purchase marijuana. Johnson eventually directed her to the house
of a drug dealer, about three blocks away. The dealer’s nickname was “Reese,” and he
lived on Reese Street. With money provided by Agustin, Johnson purchased marijuana,
then he, Agustin, and Fat-Fat went to the latter’s apartment and smoked some. Agustin
and Johnson exchanged telephone numbers.
During the next month to month and a half, Agustin and Johnson shared the
common bond of smoking marijuana, and they had fun together. At the same time,
Agustin’s relationship with her husband deteriorated, and they separated just before
Thanksgiving 2006. Johnson and Agustin then moved into an apartment in the
2500 block of Encina Street in Bakersfield. Agustin was employed at the time, but
30.
Johnson was not. He told Agustin he was selling crack cocaine, and showed her white
rocks. He said he “post[ed]” himself at the market where they first met, meaning he sold
the drugs there. Johnson said he got his cocaine from his uncle and “Two C’s.”
When Agustin first met Johnson, she did not know whether he was in a criminal
street gang. She became suspicious, however, when he would take her to the Country
and she would see his behavior.22 They would be at an intersection, and he would see
one of what he called his homies, and he would make what sounded like bird noises and
make signs with his hand. Early in 2007, Johnson told Agustin that he was a member of
the Country Boy Crips, and that they “pushed the hood,” meaning they protected the
neighborhood from rival gangs. Although Johnson did not grow up in the Country, he
said he became a Country Boy Crip around the age of 14 or 15. Johnson explained that
he was jumped by rival gang members then. They broke his jaw, and he began to “have
hate towards certain types of individuals.” That was what got him interested in being part
of a gang. Johnson said the rivals of the Country Boy Crips were the Bloods and the
Eastside, whom he derogatorily called “slobs” and “eggs.” Johnson told Agustin that the
Country Boy Crips did drive-by shootings and sold drugs.
Johnson had several monikers, but was most commonly called “Rife” and
“Rifle.”23 Johnson explained to Agustin that his “big hom[ie],” “Big Rifle,” had given
him that name because Johnson was someone “who was bold enough to really push the
hood.” Johnson said he admired Big Rifle, who was now deceased.
When Agustin first met Johnson, Johnson had several tattoos. On the first three
fingers of one hand were an “E,” an “S,” and a “K,” which Johnson said meant Eastside
Killers. A tattoo on his chest read, “fuc[c] them other niggas.” Johnson explained it was
22 The Country is considered the southeast part of Bakersfield. The main street is
Cottonwood Road.
23 Agustin’s daughter heard one person call him “Rifleman.”
31.
derogatory to his rival gangs. While they were living on Encina Street, he got a tattoo on
his lower back that said “2007” and “NC.” Johnson explained that 2007 was “the year of
the Country,” and that NC stood for Neighborhood Crips. He also pointed out Watts and
Lotus to her and said he claimed or “pushed” Watts.
Agustin encouraged Johnson to quit selling drugs and learn a trade. He began
going to barber school in early 2007. She also discouraged him from participating in the
gang. Over the course of their relationship, however, Johnson began to tell Agustin about
his gang activities. With respect to the gang, Johnson said he was the boss, so he pretty
much did what he wanted to do. In order to have that position of leadership, he said he
did anything necessary. During the middle of the relationship, while they were living on
Encina Street, Johnson told Agustin that he was a hit man. He said that if other people in
the gang needed something done, they called him, because he was the one who could get
the job done. He was not afraid of anybody.
Agustin met Lee in around October 2006, when she had known Johnson a couple
of weeks to a month. She met him through Johnson. Johnson referred to his friends as
homies, loc, and cuz. He explained that Crips called each other Cuz. He also explained
that powder blue was the color of the Country Boy Crips. Johnson sometimes wore that
color, but he would wear any color. Sometimes his friends wore powder blue, but not on
a regular basis.
After Agustin met Lee, she saw him often, as he was Johnson’s best friend.
Johnson said they had known each other since childhood. Lee lived on Myrtle Street
with his father. Myrtle Street was in Central Bakersfield, not in the Country. However,
Lee’s mother lived in the Country. At some point, he told Agustin that he worked in Los
Angeles as a respiratory therapist. She saw him in various automobiles during the time
she lived on Encina Street, most often a powder blue Magnum that he liked to rent. He
also had his own car, a small black vehicle. In the first part of 2007, Agustin and
32.
Johnson were at Lee’s house on Myrtle Street. Somehow, the topic came up, and Lee
said he hid guns in the backyard. He did not give a specific location.
Sometime after February, while living on Encina Street, Agustin heard Johnson
and Lee talk about being Country Boy Crips. They carried on conversations about their
neighborhood and activities. They discussed drive-by shootings. On August 13, Agustin
heard Johnson call Lee “Gunman.” This was the only time she heard Lee called anything
but “Dave.” Agustin never saw Lee flash hand signs. Johnson was more blatant about
being in a gang than Lee. Lee did not dress like a gang member.
Agustin knew Dixon only as Dodo. Although she did not meet him until the
spring of 2007, he and Johnson were together almost daily during the time Agustin and
Johnson lived on Encina Street. They were together even more frequently in July and
August, after Agustin moved away and then returned to Bakersfield with Johnson.
Agustin also often saw Lee with them while she lived on Encina Street, and more often
during July and August. Occasionally, Dixon talked to Johnson, in Agustin’s presence,
about being a Country Boy Crip. In addition, Johnson told Agustin that Dixon was a
Country Boy Crip, as was Lee. Johnson also identified “Big Gage,” “Little Gage,”
“Nip,” a woman named “Cece,” her husband Jim Herron (also known as “Big Boy” or
“Big Jim”), Bradley Walker (also known as “Bus Loc” or “Buzz Loc”), “Goo,” “D-
Keys,” “Two C’s,” and someone Johnson referred to as “the light hom[ie]” as Country
Boy Crips. Johnson obtained marijuana from Herron whenever he wanted. Agustin
never saw him pay Herron. Herron also provided Johnson with Ecstasy. Agustin saw
Dixon at Herron’s house one time, and Lee there more than once but not often.
In January, around Martin Luther King, Jr.’s birthday, Johnson and Agustin
attended a barbecue in Casa Loma Park, which was located in the Country. Johnson said
33.
it was the year of the Country, and they were going to celebrate it.24 Johnson wore a
black shirt that he designed. Lee had an identical shirt. According to Johnson, he and
Lee drove to Los Angeles and had the shirts made specifically for them. Johnson’s shirt
read, from top to bottom, “2007,” “S,” “Wingstone,” “Watts Blocc,” “monstas.” Johnson
explained that S stood for Southerner, the side of town on which their gang neighborhood
was located. Watts was the name of a street in Johnson’s neighborhood in the Country,
and the block he represented was Watts block. Monstas meant monsters, and Johnson
said he was a monsta. The back of the shirt read, again from top to bottom, “Naybors,”
“Southsiders,” “Shell Killa,” “Country.” Shell was one of the monikers used for rival
gangs. It meant eggs. The phrase meant Johnson was a shell killer, i.e., someone who
would kill an egg. Country was Johnson’s neighborhood. Each sleeve bore the letters
“SSC,” for Southsider Country.
Two or three times in early 2007, Agustin went with Johnson to purchase
marijuana at a house a couple of blocks off Pacheco Road. Agustin never met anyone
who lived at the house, and never saw Dixon or Lee there. However, in the first part of
2007, Agustin was present when Lee and Johnson discussed Lee’s car being hit by
gunfire in the area of Pacheco Road.25 Lee said he and Johnson had gone to the location
on Pacheco Road to purchase some marijuana, and in the process, they were shot at by
some individuals. Both told Agustin they themselves were not armed. Lee said his
vehicle was shot numerous times. He and Johnson both were angry, and Johnson said
they needed to go back and retaliate. Lee wanted to submit the damage to his insurance
company, but he said he regretted submitting the claim because the insurance company
24 Dixon was in prison at the time. Agustin did not believe Lee was present, as she
did not see him that day.
25 The neighborhood containing Deborah Street and Deanna Way is north of Pacheco
Road and just east of Monitor Street.
34.
required a police report, and that was how the police department found out the shooting
had taken place. Lee and Johnson did not talk about the specifics of what they were
going to do or when.
Within a day or two, Lee came to the house on Encina Street with his arm
bandaged. Agustin and Johnson were present. Lee unwrapped his arm and talked about
how he had gotten shot in the arm when they went back to retaliate for the initial shooting
on Pacheco Road.26 Lee said they parked away from where the initial shooting occurred
so that their vehicle would not be spotted by those who lived in that location. Johnson
said that after they parked, they began walking toward the location where the initial
shooting had taken place. Lee said they were walking toward where the individuals
lived, or were thought to live, when they spotted a vehicle driving toward them. The
individuals in the vehicle were the same ones who had shot at Lee’s vehicle, and they
now began to shoot toward Lee and Johnson. Johnson told Agustin that he pulled out his
gun, but as he went to fire, the gun jammed. He and Lee then began to run from the
individuals in the vehicle, who continued shooting at them. Johnson related that he and
Lee ran in different directions. Lee said he jumped over a fence, but it broke and he
injured himself. Lee was very angry and said he wanted to get them back. Johnson said
those who had shot Lee were their rival gang on the east side.
During this time, Johnson was attending barber college on the east side of
Bakersfield, on Niles Street. One day within a couple of days after Lee was shot, Agustin
picked Johnson up from school. Johnson then drove on a dirt road beside a canal in a
neighborhood in the area of Monterey and Niles. He said he was scouting rival gang
members who were hanging out in that location, and he pointed out a residential area. He
drove through and pointed out some African-American males who were standing outside,
right off of Monterey Street. One was wearing red, which Johnson also pointed out.
26 Agustin was already aware Lee had been shot, because Johnson had told her.
35.
Johnson said they were coming into the barbershop, and he was scared for his safety. He
said he could not take his gun into the barbershop because the owner, who was his
teacher, had security cameras, and he was feeling really helpless without his gun. He said
that now he would have to start taking his gun to the barbershop, but that he would leave
it in the vehicle.
One morning after this time, Johnson gave Agustin a pair of white Nike tennis
shoes with red on the emblem and a red hoodie sweatshirt Agustin had bought him, and
told her to destroy the items because they had been involved in a drive-by shooting he
had committed in the canal area. He said that a couple of days earlier, he and Lee went to
the area. Lee was driving his black vehicle. Lee parked in an alley and Johnson got out.
He put on a mask and walked to the front of a residence, where a couple of individuals
were sitting.27 Johnson walked up to one and started shooting. Johnson said he shot this
person several times and thought he had killed him. Johnson told Agustin that Lee
wanted to go and retaliate for the shooting that took place on Pacheco Road, but Lee
could not shoot the gun himself because his arm had been injured and so Johnson had to
shoot on Lee’s behalf.
Agustin burned the sweatshirt in the fireplace of the Encina Street residence, and
discarded the shoes in her trash can, because Johnson told her to get rid of the items. She
did not feel she had a choice. By that time in the relationship, he often hit her. Although
she knew she was helping Johnson cover up a crime, she felt helpless, because he had
27 When Agustin and Johnson lived on Encina Street, Johnson possessed a black
mask that looked almost like a gas mask. Agustin’s credit card receipt showed she
bought the mask for him on March 30. Johnson said he wanted it for smoking marijuana.
Johnson did not tell Agustin what he was wearing or the kind of mask he used during the
shooting. During the time the couple lived on Encina, Agustin’s daughter observed a
black ski mask in a duffel bag Johnson kept in Agustin’s closet. On one occasion,
Agustin’s daughter saw Johnson leaving the house with the duffel bag. He appeared to
be in a hurry.
36.
told her he would kill her if she ever left him or told on anything he did. Johnson
subsequently told her that the person he shot had survived.
On March 25, Johnson and Agustin went to Disneyland and Santa Monica. They
came straight home, because Johnson was in a hurry to get home and be with his friends.
Agustin believed they reached Bakersfield around nightfall, and she was almost certain
he then went out with his friends. Johnson said nothing to her around this date about
beating up a Blood gang member or someone at a tattoo parlor.
For Christmas of 2006, Agustin bought Johnson a black Volcom-brand pea coat.
For Johnson’s birthday on April 12, Agustin bought him a blue hat with “B” or “S” on it
and a white jersey. While attending barber college, Johnson had to wear a tan, zippered
smock.28
Johnson normally came home around 11:00 p.m. or midnight. Agustin did not
know what he was doing at those times, although he went out a lot with Lee. About a
week after his birthday, however, he came home several hours earlier than usual. He was
very startled. He told Agustin that he had done something and that they needed to go
back to the location, but that they had to wait until 3:00 a.m., when it would be safe and
there would be no police around.
A few hours later, Johnson told Agustin that he, Lee, and Dixon had driven to a
certain location on McNew Court. Lee was driving. He parked the car, and they watched
a particular vehicle. Lee and Dixon then stayed in the car while Johnson got out,
approached the other vehicle, and started shooting. Johnson said he could not see inside
the vehicle, but he thought there was someone inside. Johnson told Agustin that after he
shot, he ran to another location, then took off the clothes he was wearing and hid them
28 At trial, Agustin identified the pea coat, hat, and shirt found on McNew Court as
the ones she had purchased for Johnson. The smock found on McNew Court was the
same kind worn by Johnson at the barber college.
37.
underneath a vehicle. He did not specify what he was wearing. Johnson wanted Agustin
and her daughter, who was living with Agustin at the time, to say that he was at home
with them, watching movies, if anything ever came up about that night. He said he
needed to go pick up a gun, but he wanted to wait until 3:00 a.m. because he thought all
the police would be gone from the area.
At exactly 3:00 a.m., Johnson told Agustin that it was time to go. Agustin drove,
with Johnson directing her, through the McNew Court area. Because she did not have
her glasses and could not see well, her driving was somewhat erratic. Upset, Johnson
told her that she needed to be more careful, because they could get pulled over by the
police and that would jeopardize him.
They drove past McNew Court. As far as Agustin could see, there were no law
enforcement officers in the area. Johnson directed Agustin to turn one block past
McNew Court, and then to make a U-turn. He then had her park as close to the curb as
possible by the mailbox of a house with a brick wall and wrought-iron fencing, and that
had a van or similar large vehicle parked in front. Johnson then reached out of Agustin’s
vehicle, took a dark-colored gun out of the mailbox, and placed it on his lap.29 Johnson
had guns at the house on Encina Street, and this appeared to be one of them.30
29 When Agustin subsequently pointed out locations to law enforcement officers, she
identified a house in the 1000 block of Feliz Drive, near Jastro, as the place where
Johnson retrieved the gun. Senior Deputy Little determined that the mailbox in front of
that house was too far from the curb for a person sitting in the passenger seat of a car to
reach inside. Two houses to the west, however, was a similar-looking house with a
mailbox much closer to the curb.
30 Agustin observed Johnson to have a small revolver that he referred to as a .22,
another revolver that jammed frequently and which he called a .38, and a large gun, about
three feet long, that Agustin believed was a Tec-9 because she had heard Johnson use the
term. He also had a grayish-black gun that was about the same length as the .38, but it
was not a revolver and had a slide on it. He also had a black one like police officers
carry. It was an older model. The .22, .38, and large gun began appearing at the
residence in the early part of 2007. At some point, she did not see the large gun or the
38.
Agustin and Johnson went straight home. Johnson told her how scared he was,
then went to the back yard and hid the gun. He told Agustin that he needed to get rid of it
right away. Johnson subsequently told Agustin he had sold the gun, but did not say to
whom.
A day or two after Agustin took Johnson to the McNew Court area, Johnson
received a telephone call from Dixon. Dixon was extremely upset at Johnson because
Johnson had left the clothing he was wearing at the shooting, and inside the coat pocket
was Dixon’s cell phone. The police had found the phone and were harassing Dixon.
Dixon was upset that Johnson had gotten very careless. Johnson wanted to know what
the police were asking and what kind of information Dixon was giving them. Johnson
did not tell Agustin why he had Dixon’s cell phone, but just that Dixon was angry at him
because he had taken off his clothes and put the cell phone in the pocket. Johnson said he
put the clothes underneath a vehicle not far from the crime scene. Johnson expressed
concern that since the police had found the clothes, he and the others were going to get
caught.
On Saturday, April 21, Agustin and Johnson went to Pismo Beach alone for a
night. The trip was unplanned. Johnson said he wanted them to get out of town to have
some quality time together.
After the McNew Court shooting, Johnson’s demeanor changed and he began
drinking heavily. About a week after the shooting, Agustin asked him why. He said he
had found out that he had killed a pregnant woman. Johnson seemed remorseful.
After the shooting, Dixon stopped coming to Agustin and Johnson’s house for a
few weeks. After that time, however, he started coming over to the house again. He said
.38 anymore, but she still saw the .22. Agustin was unable to tell which gun Johnson
retrieved from the mailbox because it was too dark. She knew from its size that it was
not the .22. It appeared to be the same size as the .38, but did not appear to be a revolver.
39.
the police had stopped coming to his house as often as they had in the beginning. Dixon
told Johnson that Johnson had gotten careless. Dixon was concerned he would end up
being blamed, since the police had no evidence that Johnson was involved. Johnson and
Dixon discussed the car used in the shooting on McNew Court; both said it was Lee’s
black car.
At some point in early May, Johnson told Agustin that things were “getting pretty
hot” and he was afraid he was going to get caught, so he left the Encina Street house and
moved to San Jose to live with his sister, Lynell Johnson. Johnson asked Agustin to
move with him, because he wanted to start over. He said he was going to change his life.
She did not believe him, but, hoping he really was going to change, moved in with
Johnson and his sister in late May. After Johnson moved, but before Agustin joined him,
Johnson telephoned and asked if she could park Lee’s vehicle, a Volkswagen, in her
garage. She said no, because she wanted no involvement in what they had done. He then
asked if she could at least drive the vehicle to the light homie’s house and park it there.
Agustin agreed and took the car to 19th Street, just off of Cedar. She locked the keys
inside it and left it there. A day or so later, Johnson telephoned and said that Lee had
tried to retrieve the vehicle, but the police had towed it.31
After Agustin and Johnson moved back to Bakersfield from San Jose, they moved
in with P.G. and Dreenie, who were close friends of Johnson. Dreenie had a wig that she
occasionally wore. The hair was black and short, but not curly. One evening in late June
or early July, Johnson asked if he could borrow it. Dreenie gave him the wig. After it
31 On the morning of May 2, police received a complaint of an illegally parked
vehicle in the 2500 block of 19th Street, between Pine and Cedar Streets. There, a
1999 four-door Volkswagen Passat, without current registration tags, was blocking a
construction dumpster. Because the registration tags had been expired more than six
months, the vehicle was impounded.
40.
grew dark, Johnson said he had something to do and would be back. He left the house
with Lee in Agustin’s Expedition. They were gone for 45 minutes to an hour or so.
When Johnson, Dixon, and Goo returned, Agustin did not see her Expedition.
Johnson told her that she needed to go get Lee “in the hood,” by Reese’s house. Agustin
did not have a car, so she asked Dreenie to drive her. She and Dreenie drove around by
Reese’s house but could not find Lee, so they returned to Dreenie’s house. When they
arrived, Agustin’s Expedition was there, and Johnson, Dixon, Lee, and Goo were on the
floor of the front room. There was a bunch of money all over the floor, along with three
large sandwich bags of marijuana. The men were kneeling on the floor, counting the
money and sorting it out among themselves. Agustin overheard them say that they had
robbed Reese. Two of them went inside to make it look like they were going to buy
marijuana like usual, then Johnson and the fourth one went in, disguised and with guns.
When they came in, they pointed the guns toward the others and demanded the money.
Johnson said that one of the people got so scared, he “pretty much went to the bathroom
on himself.” Johnson said that to make it look good, he had to sock Lee in the face.
Johnson, Goo, Dixon, and Lee were all discussing the robbery and laughing about how
easy it had been.
Since they now had money, Johnson told Agustin to get her things, as they were
going to get a room somewhere else. They then moved out of P.G. and Dreenie’s house
to a motel in Oildale. Johnson made Agustin use the $400 he had given her from the
robbery proceeds to pay for their room and food. When the money ran out after less than
a week, Agustin contacted her best friend, Alethia Larios, who lived on Thoreson Court,
just down the street from Big Jim Herron. Larios allowed Agustin and Johnson to move
in with her. This was during July.
In early 2007, before Lee was shot, Johnson began getting physically violent with
Agustin, often because she refused to give him the keys to her Expedition. There were
multiple incidents; they included him striking her with his fist and “busting” her nose,
41.
holding her head underwater in the bathtub, attempting to shoot her but having his gun
jam, biting her hard enough to leave scars, dragging her by a belt around her neck, and
threatening her with bodily harm and death.32
Agustin and Johnson lived with Larios for slightly more than a month. During
that time, their relationship was worse than it had been when they were living on Encina
Street. They fought all the time, and on August 7, Agustin contacted a battered women’s
shelter. She was tired of the abuse and feared for her life, as Johnson had gone so far as
to get his semiautomatic out of the closet and stick it in her mouth.33 Agustin went to the
shelter on August 7, and was in telephone contact with them for several days after, but
they had no beds available.
Early on August 9, Johnson received a telephone call. He subsequently told
Agustin that he needed to take the car, and that something had happened. He did not go
into any details, but was in a hurry. He left in Agustin’s Expedition. Concerned, Agustin
telephoned Lee and then Dixon. Each told her not to worry, and that he would get a hold
of Johnson.
Several hours later, Johnson returned to the house in the Expedition. He told
Agustin that Cuckoo’s wife’s cousin had gotten shot. Johnson related that the person had
been shot in the face and several times in the chest on Cheatham Street, which was in the
Country next to Reese Street. Johnson said that one of his “hom[ie]s” had seen the
shooting take place, and that the shooter had been a Mexican male. Johnson related that
he (Johnson) had contacted the shooter on his cell phone and asked him to meet
32 Lee was not present on any of these occasions. Lee never threatened Agustin, and
she was not afraid of him. Although she saw Johnson and Dixon with a gun, she never
saw Lee with one.
33 As far as Agustin saw, the black semiautomatic was the only gun Johnson had at
this time. He kept it in a pillowcase in the closet, along with the mask that looked like a
gas mask, a wig, and black clothing.
42.
somewhere so they could talk. When the individual refused, Johnson told him that
Johnson was going to “get him where it hurt him the most.” Johnson said that he and
Dixon had found out where the individual’s father lived, which was out in the bluffs, and
they had gone in Agustin’s car to that location.34 When they were walking toward the
house, a vehicle approached. The individuals in that car saw them and made eye contact,
and Johnson and Dixon got scared and acted as if they were tying their shoes. When
Agustin said she could not believe Johnson would do such a thing in her car, Johnson
said he did not want to “do” her like that and have a shootout in her car, so he and Dixon
left the area.
On August 11, Johnson and Agustin were still living on Thoreson Court, and
Agustin was still trying unsuccessfully to get into the battered women’s shelter. That
afternoon, the couple got into a physical altercation over Johnson taking Agustin’s
vehicle. Johnson eventually said Agustin could go with him, but, once she got into the
driver’s seat and he got in on the passenger side, he retrieved the black semiautomatic
from between the passenger seat and the center console, and he pointed it at her. She got
out of the vehicle and ran back into the house. He followed her in and told her to come
on, and she went with him. He had the gun stuffed in his pants at the time.
The two ran an errand, then, near the intersection of Ming Avenue and Real Road,
Johnson got into an argument with a lady driving a green Tahoe over who had cut off
whom. Johnson got mad, pulled out the semiautomatic, and pointed it toward the lady.
She immediately got on her cell phone, and Agustin feared that if she got the license plate
number for Agustin’s Expedition, it would lead the police to Agustin.
34 Johnson did not say Lee was with them. Agustin assumed that by “the bluffs,”
Johnson meant the area in northeast Bakersfield, by Bakersfield College and Panorama
Drive.
43.
The lady and Johnson and Agustin went in different directions at the intersection.
Johnson and Agustin ran several more errands, which included Johnson buying some
Ecstasy pills and forcing Agustin to ingest one. They returned to Larios’s house around
4:30 p.m., but Agustin was feeling the effects of the drug and drove alone to a market to
purchase some beer. When she returned, she felt like someone was following her. She
told Johnson and warned him to hide his gun. Agustin then returned to the market,
contacted her ex-husband, and ended up spending the night at his house. She did not
have any contact with Johnson the night of August 11.
On Sunday, August 12, Agustin checked her messages and learned Johnson had
been looking for her and wondering why she never came home. She lied and told him
that she had gone to a battered women’s shelter. Johnson asked to see her, and she told
him she could only get away from the shelter for a certain period of time.
At 8:00 p.m., Agustin arrived at Lee’s house on Myrtle Street, and Johnson
greeted her at her car. As they talked, Agustin heard a couple of noises. Johnson saw a
vehicle approaching, and he grabbed Agustin’s hand and said something had happened
the night before. They then ran to the back of Lee’s house. Lee and Dixon, who were by
a tree in the front yard, also ran to the back. The vehicle that drove by was large,
possibly a van or an SUV, and Johnson said he suspected the occupants were rival gang
members.
After a few minutes, Agustin told Johnson she needed to get back to the shelter.
She then left and returned to her ex-husband’s house. She did not have further contact
with Johnson that night, although while at Lee’s house, she had made arrangements to
pick Johnson up from Dixon’s house on Monday morning to take him to an appointment
with his public defender. Instead, at 8:00 a.m. on Monday, August 13, Agustin went to
the shelter in person. She was in fear and desperate to get away. Again unable to get a
bed and with nowhere else to go because her ex-husband did not want her coming back,
she went to meet Johnson at his attorney’s office.
44.
After they left the office, Johnson said he wanted Agustin to see something. They
went to the intersection at Planz and Real Road, where Johnson told Agustin to look up at
the signal light and asked what she saw. When she said she saw a camera, he asked her
what she thought it did. She said she did not know. She told him that the big square
cameras in certain intersections took pictures if someone ran a red light, but that she did
not know what this little camera did. She said it possibly recorded things, but she was
not sure. He then got scared.
Johnson told Agustin that he had done a drive-by shooting at that intersection on
Saturday night. He said Lee was driving, Dixon was in the front passenger seat, and
Johnson was in the back seat.35 Johnson said he saw someone walking on the sidewalk,
and so he stuck his head out and fired twice, and he was concerned that if the camera was
recording, the incident would have been caught on camera. Johnson said he and Agustin
needed to get out of town, and that his plan was for them to go to Las Vegas. He said he
had a friend and extended family there.
Johnson said he had some guns that he needed to sell so they could get some
money. They then drove to a house in the 400 block of Eye Street. Agustin remained in
the car; when Johnson came back a few minutes later, he said the individuals at the house
had made him an acceptable offer of $400 and he needed to get the guns.
Johnson and Agustin then drove south on Eye Street to a set of apartments.
Dixon, Lee, and Lee’s young son were outside, and there were several women in the front
yard. Johnson told Dixon and Lee to get in the car, because he had something to show
them. Lee’s son stayed behind; when Agustin asked, Lee said some friends lived there,
and that his son was in good hands. Johnson then drove back to the intersection, pointed
toward the pole, asked them if they had seen the camera and what they thought that
35 Agustin never saw Lee driving a vehicle that was red, burgundy, cranberry, or
maroon.
45.
camera did. They said they did not know. Johnson said that if the camera was actually
recording, it would be bad because it would show that Lee was driving, the vehicle and
the license plate, and that Dixon was in the front seat. Dixon responded that if it was
going to show that, it was also going to show when Johnson put his head out of the
window and started firing. Johnson then told them that he wanted to get out of town, and
Dixon and Lee tried to discourage him from leaving.
Johnson said he had found someone to purchase the guns, and so they drove back
to the house on Eye Street. There, the three men went inside. When they came back out
a few minutes later, Johnson was excited because the people had actually raised the offer
to $500. Johnson told Agustin that she needed to drive the three of them to the Country
so that they could dig up the big gun. Johnson actually drove, and they went to the home
of Lee’s mother. There, Dixon retrieved a shovel, and they directed Agustin to drop them
off at Watts and Lotus. She was then instructed to go to Larios’s house and get packed
and ready to move. Johnson told her to wait for a phone call to come back and pick them
up. Agustin left all three of them standing in the middle of the intersection with one
shovel.
About 15 minutes later, Agustin received a call from Johnson, telling her to come
and get them. Only Johnson and Dixon were there. They went to a market on Casino
Street, off Cottonwood Road, and Lee drove up in what looked like a white Explorer.
Lee said it was his mother’s car. They then all went to his mother’s house. Johnson
made some phone calls, trying unsuccessfully to sell the guns. Dixon called D-Keys to
see if he was interested. Although D-Keys was out of town, Dixon told Johnson that D-
Keys had asked Dixon to pay Johnson, and that D-Keys would reimburse Dixon when he
returned. Dixon then handed Johnson $150 for the black semiautomatic. The last time
Agustin saw that gun, Dixon had it. Johnson, Dixon, and Lee discussed how they had
been unable to unbury the big gun, and Johnson instructed Lee to make sure he got rid of
it.
46.
Johnson and Agustin then went to the home of one of Johnson’s friends to get
directions to Las Vegas. By now, it was dark. They headed for Las Vegas that night,
sleeping in a rest area outside of that city and arriving the next morning. They then went
directly to a homeless shelter and then to the welfare department to apply for emergency
food stamps. While there, Agustin was just staring off, but a woman in line apparently
thought Agustin was staring at her, and said something. Johnson said something to the
woman, then got angry at Agustin for making him “look bad” when Agustin refused to
respond rudely to the woman. Johnson then decided he did not want to stay in Las
Vegas, and demanded that Agustin take him home. She refused, and he eventually
calmed down.
Johnson and Agustin did not return to the homeless shelter in time to get beds, but
Johnson said he had enough money for them to be able to get a room. They spent the
night of August 14 in a hotel. That evening, they walked to a couple of casinos. After
they had both had some drinks, Johnson brought up the incident at the welfare office and
chastised Agustin for her response. Eventually, he got up and started walking out of the
hotel. He cursed at Agustin, threatened her, threatened to have his mother beat her up,
and threatened to mess up her vehicle. Perhaps feeling the effect of the alcohol, Agustin
got “a little bold” and told him that the last time he hit her was going to be the last time
he hit her. She told him that if he hit her again, she would go to the police and tell them
everything she knew about him. Johnson became extremely angry, and Agustin ran
inside a McDonald’s when he came toward her. She asked the assistant manager to call
the police.
Agustin went to her car, but Johnson reached it just before she did. He threw a
rock through one of the Expedition’s windows. Agustin saw someone walking and asked
to borrow his cell phone to call the police. Johnson started walking away, and Agustin
called the police. She then waited with her vehicle, but, when no one came after what
47.
seemed like a long time, she drove it back to the hotel. By the time she reached her room
and fell asleep inside, it possibly was after midnight of Wednesday, August 15.
Agustin was awakened by a knock at the door. Looking through the peephole, she
saw someone who appeared to be the light homie. She stepped away from the door,
frightened, then looked through the peephole again. This time, she saw Johnson. He
asked her to let him in. She refused. She saw him walking toward the office, then he
entered the motel room with the light homie. Johnson ran toward Agustin and struck her
in the forehead with his fist right above the left eye. She started gushing blood, and he
started to punch and kick her. He told his friend to get everything out of the room.
Agustin begged the friend to get Johnson to stop.
Johnson got Agustin down onto the ground, then grabbed a pillow and began
smothering her with it. At last, he let up. He told her that if he had his gun on him, he
would kill her because she called the police. He then told her to get inside the bathtub.
She obeyed. The last thing he said to her was that he was going to go back and kill her
son. She believed he would do it.
When Agustin heard the door close, she called 911 and begged the Las Vegas
police to call the Bakersfield Police Department and alert them to the threat Johnson had
just made against her son’s life. At first, the Las Vegas police did not take her seriously
and accused her of being drunk. As she told the officer about the incidents in which
Johnson had been involved, however, the officer’s attitude toward her changed. A short
time later, she was able to talk to Bakersfield Police Detective Burdick and tell him what
had happened and what Johnson had told her.
Upon her return from Las Vegas to Bakersfield, Agustin lived in battered
women’s shelters. At some point, she agreed to testify if this case went to court. In
September, she was placed in the Witness Relocation Program and remained there as of
January 2009, when she testified at trial. Through the program, her rent was paid, and
she was given $450 a month for her other expenses, by an investigator for the district
48.
attorney’s office. In addition, in late August, the district attorney’s office or law
enforcement gave her money so she could return to Las Vegas and get her vehicle out of
impound, as well as food and travel expenses. They also bought her a cell phone.
Prior to the Las Vegas incident, Agustin did not report any of the domestic
violence to law enforcement, nor did she report any of the crimes Johnson had told her
about committing. She continued to live with and support Johnson despite the various
incidents, even after learning a pregnant woman had been killed. She left Bakersfield for
Las Vegas because Johnson asked her to, and she wanted to be with him. She estimated
that, between January and August, she spent thousands of dollars on Johnson.36
Dupree Jackson’s Testimony
At the time of trial, Dupree Jackson, who testified under a grant of immunity, was
imprisoned on a parole violation. For most of his life, he lived in the south part of
Bakersfield known as the Country. When he was little, he often saw sales of rock
cocaine going on in front of his home. He also saw guns and drive-by shootings. When
he was around 13 years old, he began thinking about becoming a member of the Country
Boy Crips. All his family was “from there,” and he did not see anything else to do. He
hoped to make money selling drugs. Someone was not allowed to do that “in the hood”
unless the person was in the gang.
Jackson was “jumped in” to the gang, meaning two people physically beat him,
when he was not quite 14. The point of being “jumped in” is to show the person is not
scared of anything, and to give that person more reputation. Reputation for being tough
36 Psychologist Michael Musacco testified concerning Battered Women’s Syndrome
(BWS), its cycle of violence, and its effects. He also discussed common symptoms of
victims suffering from BWS, and why a battered woman would stay in an abusive
relationship and not report the abuse to law enforcement. As defendants raise no issues
concerning this testimony and the jury was instructed the testimony was not evidence
Johnson committed any acts of violence, we do not summarize it further.
49.
is important “in the hood.”37 Once in the gang, Jackson got to know other members. He
had daily contact with them, and they would discuss their various activities. At the time,
the Country Boy Crips were engaged in selling drugs, gangbanging, and “riding on the
enemies,” meaning they would shoot at rival gang members. Older people in the gang
were called big homies, which was the same thing as an OG, meaning someone who had
been there for a long time and had “a lot of say-so over the hood.” Younger gang
members had a personal big homie, who looked out for the younger member and taught
him things.
During the time Jackson was a Country Boy Crip, the gang’s enemies were the
Eastside Crips and Westside Piru Bloods. Eastside was considered worse than the
Bloods.38 The Country Boy Crips were different than the Eastside, in that the Country
Boy Crips did not jump in outsiders. They were more like a family, with generation after
generation growing up in the gang. By contrast, the Eastside jumped anybody in.
There were roles within the Country Boy Crips that certain gang members would
have. Some — like Jackson — would sell drugs, particularly rock cocaine and
marijuana, the proceeds from which would go toward buying guns, providing money for
gang members in custody, and the like.39 Some were “pretty boys,” who would affiliate
37 Jackson explained that if a person grew up in the Country or spent a lot of time
there, he was then Country automatically and did not really need to get jumped in.
Jackson was familiar with Wingstone. It was off of Watts, in the Country.
(Jackson made a brief reference to the Country Girl Crips. Because we have no
information concerning whether the practices of female gang members are the same as
the practices of male gang members, we use only masculine pronouns to refer to gang
members in general.)
38 Prior to Jackson’s involvement in the gang, the Westside Crips and Country Boy
Crips were enemies. By the time he had joined the gang, however, the “beef” between
the two had died down and there was some sort of truce.
39 Jackson’s role in the gang was a drug dealer. He sold rock cocaine.
50.
with the gang and bring in females, but who otherwise did not do much for the gang or
get involved in anything serious. Some would patrol the boundaries of “the hood,”
keeping out outsiders and enemies.40 Some would “hang out.” Others would “ride with
the guns, go put it down,” killing the gang’s enemies by walk-up and drive-by shootings.
The OG’s basically would “call shots.” Those who “r[o]de on the enemies” had the
highest status in the gang. They were respected and feared. Firearms played an
important role in the gang. They were used to protect the hood, to protect the gang
member himself, and to go “riding on” the enemies. Gang members might trade or sell
guns to other members, or might keep a gun on one’s person sometimes and hide it other
times. Jackson had never heard of hiding a gun underground.
At a Country Boy meeting, one of the OG homies instructed that walk-up
shootings were preferable, because in drive-bys the enemy was often missed and innocent
bystanders were hit instead. Jackson explained that a walk-up shooting involved taking a
car to the enemy’s territory, getting out, and shooting at the enemy. A drive-by shooting
involved shooting out of a car toward the enemy. If a participant in a walk-up shooting
did not have a gun, he would not get out of the car. The driver would remain with the
car; his role would be to get the shooter to and from the location in rival gang territory at
which the shooting took place. The driver would use a cell phone to communicate with
the shooter about when the shooter would return, that the driver was to have the car
started, and similar subjects.
40 Seeing a rival gang member in one’s hood would be a sign of disrespect to the
Country, unless the rival had a relative in the Country. In that case, the rival would be
given a pass, and it would not be disrespectful for him to be there. A rival might also be
given a pass if he was incarcerated with one of the gang members and became friends
with him. Crip factions are not kept separate in prison, and Crips in prison from Kern
County have a kind of bond and call themselves “805,” for the old Bakersfield area code.
51.
During the time Jackson was a teenager, he estimated the Country Boy Crips had
about 100 to 200 members. He personally knew the majority of them, or was aware of
their reputation in the gang. The gang had subsets, called cliques. Jackson was in the
Cottonwood clique, also called the Deep because it was in the area of the Country that
was farthest to the south, away from the Eastside. Other Country Boy Crip cliques were
Reese and Cheatham, Mad Blocc, and Watts and Lotus. There were no territorial
boundaries among the cliques, which all got along together.
The territorial boundaries of the Country Boy Crips were Belle Terrace on the
north, Panama on the south, Union on the west, and Cottonwood Road on the east. There
was a rival gang to the north of Belle Terrace, namely the Stroller Boys, who were part of
the Eastside Crips. On the other side of the western border were the Westside Crips.
There was nothing beyond Cottonwood Road, as it was mostly fields. The Bloods did
not have a big territory. Their territory consisted of a large apartment complex near
Bakersfield Memorial Hospital, in the area of 31st Street, Jewett Avenue, Columbus, and
Union. Bloods would also congregate in the area of Pacheco Road and Calcutta. The
boundaries remained pretty much the same the entire time Jackson was in the gang.
During the time Jackson was a Country Boy Crip, he observed that some Country
Boy Crip members had tattoos, while others did not. Some people had tattoos that were
not gang related, while others had gang tattoos. Typical ones were “CBC,” which stood
for Country Boy Crip; “SS,” which stood for South Side; and Watts and Lotus. There
were also tattoos about rival gangs. For instance, “ESK” stood for Eggshell killer, with
eggshell being a derogatory term for the Eastside Crips.41 Some tattoos would be
pictures rather than letters or words. For instance, someone might have a portrait of a
dead homie, which would show that person respect; or a picture of an egg, which would
41 Bloods were derogatorily called “dead rags” or “slobs.”
52.
be disrespecting the Eastside. Someone might have a tattoo of hands throwing gang
signs.
Powder blue was the color associated with the Country Boy Crips.42 Although
someone did not have to wear that color to be in the gang, doing so let people know
where the individual was from. Wearing the color meant both that the person was from
the Country and that he was a gang member. Although gang members did not wear
powder blue every day, every gang member wore the color at some time or another.
Country Boy Crip members also used graffiti to label their territory and let people know
where their hood was at. Jackson had seen words in which CK was replaced with CC.
This was because CK stood for Crip killer, which would be disrespecting one’s own
hood.
In 2005, when he was 17 years old, Jackson pled guilty to possession of cocaine
for sale and served 22 months in prison. He was initially released on parole in October or
November of 2006, returned to Bakersfield, and again lived in the Country. Following a
parole violation for assault with a deadly weapon against his sister, he was imprisoned
from January 7 to June 7, then out of custody and living in the Country until his arrest on
August 23 for absconding from parole. He was released again in December 2007 or
January 2008, and was in the Witness Relocation Program from then until June 2008, in
connection with this case. In June 2008, he again violated parole, this time by being
around gang members, and was returned to custody. He expected to be released later in
the month that he testified at trial (February 2009).
Jackson and Johnson were cousins, although they first met in junior high school.
After that, they got to know each other fairly well. Johnson did not grow up in the
42 The colors of the Eastside Crips were royal blue and dark blue. The Eastside
Crips were enemies of the Country Boy Crips because they killed some Country Boy
Crips “back in the days.”
53.
Country Boy Crip neighborhood, but would visit about every other day and claimed
Country Boy Crip. Jackson and Johnson both were active gang members. Jackson saw
Johnson sell rock cocaine, “ride,” pack a gun, steal cars, and similar activity. Jackson
was aware of Johnson’s reputation; from that reputation, Jackson knew that Johnson’s
role in the gang was as a shooter. Johnson’s moniker was Little Rifleman; he took the
name from a big homie.
When Jackson was released from prison in the fall of 2006, he made contact with
Johnson, who was living with his girlfriend, a Hispanic woman in her late 30’s. When
Jackson was released again in June, he became active in the gang again, hanging out,
selling drugs, and smoking marijuana. During June, July, and August, he saw Johnson
“[a]ll the time” “[i]n the hood.” Johnson was hanging out, selling a bit of drugs, smoking
marijuana, drinking, and “banging” — being wild, packing a gun, and having an I-don’t-
care attitude. Johnson was still claiming Watts and Lotus clique, and was active during
that time, riding for the Country. Jackson knew these things because he saw them, and
heard them from Johnson and other people in the hood.
Jackson first met Dixon when Jackson was nine or 10. When Jackson was young,
he was aware that Dixon went to prison for manslaughter for killing an Eastside Crip
named “Freeway Joe.” Jackson knew Dixon fairly well before Dixon went to prison and
knew, from Dixon’s tattoos, associates, and the colors he wore, that he was a Country
Boy Crip in the Watts and Lotus clique. His moniker was Dodo.
When Jackson was released from prison in June 2007, Dixon was also out of
custody. The two got together almost every day in the hood. Dixon was in the gang at
that time. Jackson saw him selling drugs, hanging with the homies, smoking marijuana,
and riding for the hood. He was kind of a leader in the gang. He had status based on
going to prison for what he did, and he also had family status, because his mother’s
family had a lot of reputation in the hood. Dixon grew up in the Country Boy Crip
neighborhood.
54.
Jackson also knew Lee, having met him long ago at Lee’s mother’s house. Lee
did not grow up in the neighborhood, but had relatives who lived there. Jackson knew
Lee to be a member of the Country Boy Crips, because Lee was from Watts and Lotus.
Lee’s role was “kind of low key,” basically hanging out with other people. Lee was “on
the down low,” almost like undercover. For instance, he did not dress like a gang
member. Lee got his reputation from his older brothers, “Big Critter” and “Little
Critter.” Before Jackson went to prison the first time, however, he saw Lee selling drugs,
hanging out on the corners, and riding.
When Jackson was out of custody during the summer of 2007, he would see Lee at
various locations in the hood, including at functions at homies’ houses, and at Lee’s
mother’s house.43 Lee claimed Country Boy Crip at that time. His role in the gang was
being a driver. He would drive people around or rent cars for them, as he had money.
Lee hung out with Johnson and Dixon, his brothers, and some of the other homies from
the hood. During that summer, Jackson saw Lee in the neighborhood about every other
day. Jackson did not know Lee to have a moniker, but he would see Lee sometimes wear
the hood’s colors. Jackson and Lee were not best of friends; Jackson learned, when he
was released from prison, that the mother of his child had had a sexual relationship with
Lee while Jackson was in custody. Jackson never discussed it with Lee, and it was his
impression the relationship had ended.
Jackson knew the roles of a number of people who were Country Boy Crips during
the summer of 2007. For instance, Tonriko Shropshire’s role was drug dealer and
gangbanger, meaning an active member in a gang. The role of Big Gage (true name,
Joseph Gage) was hustling (selling drugs) and banging, and he was an OG. The role of
D-Keys (true name, Darius Keys) was selling drugs, hanging out, and being an active
gang member. The role of Bus Loc (true name, Bradley Walker) was gangbanger and
43 Lee’s mother lived on Wingstone.
55.
drug dealer. Walker and Dixon were fairly close friends. Jackson did not know anyone
whose moniker was Big Boy. He did, however, know Big Jim, who had been a volunteer
football coach when Jackson was growing up. Big Jim was an OG who sold marijuana,
hung around, and “produce[d] a lot of stuff for the Country,” meaning he distributed
money to buy guns and “call[ed] some shots.” Jackson also knew Two C’s (true name,
Marcus Bolden or Bowen), whose role was a drug dealer; he would push “major weight”
by selling ounces of rock cocaine. Jackson also knew Nip (true name, Trent Abraham);
his role was a drug dealer, active gang member, gangbanging, and riding.
Jackson knew someone referred to as the light homie. The person’s name was
Chris Haynes; he was very light skinned, with hazel eyes, and was a member of the gang.
He drove a Lexus with Nevada license plates. His role was being a pretty boy,
gangbanging, and hustling. Fat-Fat’s last name was Killebrew. He was from the
Country, although he had family who were Eastside. Before Jackson went to prison, Fat-
Fat’s role was being a hustler and active gang member. Jackson did not remember if he
saw him out on the streets in the summer of 2007. Jackson also knew Goo, although he
could not remember his real name. Goo was a member of the Country Boy Crips; he was
like a little homie, but always listened to what older homies said and “was down for
whatever.” Pookie (true name, Columbus Holford) drove people around and sold Ecstasy
and marijuana. Maniac (true name, Sterling Endsley) had the role of being an older
homie, gangbanger, selling drugs, and riding. During the summer of 2007, Jackson saw
defendants associate with each other, Bus Loc, Goo, Maniac, Two C’s, Big Jim, and a
couple of others.
During the summer of 2007, a number of people sold marijuana from a house in
the vicinity of Cheatham Street and Cottonwood Road. The house belonged to John B. It
was called the dodie house, because Jackson and the others were selling chronic (high-
56.
grade marijuana).44 Jackson heard of a robbery that took place at the dodie house in the
summer of 2007, and learned that Johnson and Dixon were suspected. John B told
Jackson that he believed his cousin, Big Jim, sent them over to rob him because he was
making more money selling marijuana in the hood than Big Jim. John B also believed
they robbed him because his cousin “Third,” an Eastsider, was allowed to sell marijuana
there. It angered Jackson to learn the perpetrators were members of the same gang as the
victims, and he started to question the loyalty of the Country Boy Crips toward each
other.
Johnson also told Jackson about this robbery, and admitted defendants were the
perpetrators. He said that Barry, Third (whose real name was Keathon), and Keshawn
were the only people in the house. Lee acted as a decoy to go into the house, then Dixon
entered and then Johnson. They pointed weapons toward everyone’s heads and told them
to get down. Johnson said they took an ounce of chronic, about $3,200 in cash, and
things like video games, computers, and laptops.
That same summer, “Raybo,” one of Jackson’s older homies and someone with
whom he was very close, was murdered. Jackson learned about it on August 9, when
Two C’s called him to say that Raybo had been found dead at the chronic spot.45 Jackson
learned that Keshawn Johnson, “Fumes” (David Taylor), and John B were suspected of
involvement. Raybo, Keshawn, and John B were all Country Boy Crips. Fumes was not,
but had grown up around a couple of the older homies and was the father of Jackson’s
sister’s baby. There had been bad blood between Fumes and Raybo; Fumes had told
Jackson that Raybo had broken into Fumes’s house and robbed him of some guns.
44 Jackson knew a female named Teresa who went by “Reese,” but no male who
went by that moniker.
45 The certified death certificate showed that Larry Raymond Bowen was killed on
August 9 at an address in the 1300 block of Cheatham Street, Bakersfield, and that the
cause of death was gunshot wounds of the head.
57.
Fumes had told Jackson that he knew who did it and was going to get the person back.
After Raybo was killed, Keshawn told Jackson that Keshawn set Raybo up and then
Fumes gunned Raybo down in the house.
The fact one Country Boy had set up another Country Boy made Jackson feel
depressed and angry. As a result, Jackson “hooked up” with defendants later the same
day, and told them that he knew where Fumes’s father lived. He also gave Johnson
Fumes’s cell phone number. Jackson did not know what street the father’s house was on,
but offered to take defendants there.
Everyone got in the Expedition. Johnson was driving, Dixon was the front
passenger, and Jackson and Lee were in the back seat, with Jackson behind the driver.
Jackson saw a Tec-9, a nine-millimeter semiautomatic, what appeared to be a Glock
semiautomatic that was a bigger handgun than a nine-millimeter, a .32-caliber revolver,
and a 12-gauge shotgun with the stock sawed off and duct tape wrapped around it, all in
the cargo area of the vehicle. Lee started handing them out. He gave Jackson the .32-
caliber revolver, Johnson the Tec-9, Dixon the Glock, and kept the nine-millimeter for
himself. The shotgun remained in the cargo area in the back.
Jackson and defendants discussed their plan, which was for Jackson to show the
others Fumes’s father’s house, where Jackson believed Fumes was hiding out. They
were “[g]oing to go get revenge back for the hom[ie],” i.e., kill Fumes at his father’s
house.46 To this end, they got on a freeway. Jackson was able to find the house after
getting lost a couple of times. Fumes’s father lived by Bakersfield College, off of
Panorama Drive.47
46 Jackson did not believe he was going up there to kill Fumes’s father; his intention
was simply to point out the location. He took the gun when they offered it to him
because he did not want to look scared or like “a punk.”
47 Records for Lee’s cell phone showed a call made at 8:58 p.m. on August 9, that
registered on the cell phone antenna near Bakersfield College. Phone records also
58.
After Jackson located the house, the group circled around for a while to plan their
escape route. They then parked across the street and “scop[ed] out” the house. Nothing
got done that day, however. Defendants said they were going to come back and get
Jackson later on that night, but they never did. Jackson did not know whether anybody
went back to the house. He himself abandoned the plan to shoot Fumes.
Johnson drove them back down from the bluffs to the apartment complex on Eye
Street, then defendants took the guns and headed toward the apartments. They did not
say why they were taking guns into those apartments or what was going on; Jackson just
knew it was “a spot,” meaning a hangout. Defendants had always told him they were
going to Eye Street, that they had a spot over on the Westside. Jackson remained in the
Expedition. During the five to eight minutes before defendants returned to the vehicle, he
saw a newer-model, red, four-door compact car, possibly a Toyota or a Kia, without
tinted windows. On August 23, the day Jackson was arrested for violating parole, he saw
the car again, this time in the area of Casino Street and Cottonwood Road. Dixon and
Bus Loc were in it.
During the time Jackson was out of custody in the summer of 2007, Johnson
talked to him about his involvement in some shootings and robberies. Near the end of
June or early July, the two were sitting in the Expedition on Cheatham Street, smoking
marijuana, when Johnson talked about a shooting that had happened in the Stroller Boys
area, off McNew Court. He also talked about a shooting off South Real Road and Planz.
showed three calls on August 9, and two on August 10, from Lee’s phone to what may
have been Fumes’s cell phone. Those were the only calls to that number between
February and September. (Tam Hodgson, the district attorney’s investigator who
obtained and analyzed the various phone records, had information from some sources that
Fumes had one cell phone number, and from other sources that he had a slightly different
number. Hodgson could not say which number was correct.)
59.
Johnson said he was stressing, and that if stuff hit the fan, it would link him back to the
crimes.48
Jackson had a second conversation with Johnson on the subject at a gathering on
Anderson Street about a week after Raybo’s funeral. Johnson again said he was stressed
out, and that if the stuff came back on him, it would link him to the McNew Court
shooting, where a female was supposed to have gotten shot. Johnson said he was going
over there to get at some Eastsider — Anthony Lyons — but then stuff went “all bad.”
Johnson related that he and Dixon were the shooters, while Lee was the driver and waited
for them to come back.49 Things went haywire. The police came or something, and
Johnson accidentally dropped a hoodie and a cell phone and some stuff. Johnson was
upset when he told this to Jackson. Johnson also said that while he was attending a
48 The record is somewhat confusing as to when Jackson claimed to have first been
told about the Real Road and Planz shooting by Johnson. Jackson was specifically asked
how long it was after he got out of custody on June 9 until he had the conversation with
Johnson in the Expedition about the Stroller Boys (McNew Court) shooting. Jackson
responded that the conversation occurred at the end of June or beginning of July. Jackson
also testified, however, that Johnson told him about two shootings during this
conversation. One was in the Stroller Boys area off of McNew Court, and the other was
off of South Real Road and Planz. On cross-examination, Jackson testified that Johnson
told him about the Real Road shooting while they were in the Expedition on Cheatham
Street, and that this was more than three weeks before Raybo was killed. Jackson
testified that he learned about Raybo’s murder on August 9. The implication is that he
learned about this shortly after it happened, since when he was on Cheatham Street
talking to Keshawn Johnson about what had happened, the police were still at the scene.
Yet the shooting at Real Road and Planz, in which Adrian Bonner was wounded, took
place on August 11, after Raybo was killed, not before, as necessarily would have had to
be the case in order for Johnson to discuss it with Jackson in late June or early July.
49 On cross-examination, Jackson testified that Johnson did not say anything about
Lee being involved in this incident, but only that Johnson and Dixon did the shooting.
Jackson told the police that Johnson did not tell him anything about a car or how they got
away.
60.
funeral for his and Jackson’s deceased homie, a police officer named Mario was
following him around. Johnson was nervous about that.50
Johnson related that he had also been involved in another shooting. He said he,
Dixon, and Lee were “rolling around” at night when they bumped into some Bloods at a
mini market somewhere off of South Real Road and Planz. They saw the Bloods again at
the stoplight, and Johnson came out of the window and started shooting at the Bloods.
Johnson said he was pretty sure he hit one, and he heard later that the person was
paralyzed. Johnson said the shooting was retaliation for Cutty Pete. Cutty Pete was a
Country Boy Crip who was shot by the Bloods. Jackson knew about that shooting from
his homies and from what Cutty Pete told him.51 In addition to Johnson, Jackson
received information about the Real Road and Planz shooting from his brother, who had a
relationship with a Blood’s sister.
Jackson was arrested on August 23 as a parole absconder. He told the officer that
he could not afford to get locked up because he had a family to take care of, and that he
knew some information about some shootings. Jackson decided to talk about what he
knew because he was fed up with the Country due to the death of Raybo and the robbery,
and he wanted out. He wanted a normal lifestyle. Officer Beasley, who arrested Jackson,
50 Raybo’s funeral was held at the Church of Higher Ground on August 18. Because
of information there was a disturbance brewing between rival gang members at the
church, the Bakersfield Police Department’s gang unit had officers there, as was common
with respect to gang members’ funerals. Sergeant Jehle, whose nickname in the gang
area was Mario, was present at the funeral and made eye contact with Johnson, whom he
then observed for a couple of minutes. When people were dispersing, Jehle may have
seen Johnson again. There were tensions at the funeral because factions from both the
Eastside Crips and Country Boy Crips were there, as Bowen had friends and family on
both sides. Although there were posturing and verbal exchanges, there was no physical
altercation.
51 According to Adrian Bonner, Cutty Pete appeared to be in “okay” physical
condition at the time of their verbal altercation the morning Bonner was shot. As far as
Bonner could tell, Cutty Pete had not been shot.
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put Jackson in touch with Detectives Heredia and Darbee. Jackson spoke with them later
that night and told them about the McNew Court and Real Road shootings, but he held
back some details because he was not sure how much he could trust them. They were
former gang officers who had harassed Jackson a couple of times. In later interviews, he
told everything he knew about the shootings.
Following his arrest, Jackson was booked into jail. He was in a holding cell when
he saw Dixon, who was in a different holding cell. Later, they were placed in the same
cell. Dixon told Jackson he was accused of running from the police out of a car with Lee.
Dixon said there was a Tec-9 in the car, and that Maniac was in the car with them but got
away. Dixon said he never even got to use the gun. Dixon said he (Dixon) also got away
and made it home, but then the police came to his house and arrested him and accused
him of running from the car. Dixon was angry at Lee because he thought Lee told on
him.
Dixon and Jackson were in the same cell for three or four days.52 During that
time, Dixon told Jackson that he was involved in the shootings on McNew Court. Dixon
said he and Johnson both were shooting and did not know which one hit the victims.
After the shootings, they started going back to the car. Police or someone came, and
Johnson dropped a hoodie or cell phone. Lee was waiting in the car, and they went back
and got in. Dixon said he got picked up later on and questioned about that case, but he
was not arrested for it.53 Dixon said that when he got “out of this gun beef case,” he was
52 Jail records showed Jackson and Dixon were assigned to the same cell from
August 24 to August 29.
53 On cross-examination, Jackson testified that when he first spoke to Dixon, Dixon
said he and Johnson were involved in the McNew Court shooting. He said nothing about
Lee. On redirect examination, however, Jackson testified that he remembered telling the
grand jury that Dixon said Lee was the driver during the Stroller Boy (McNew Court)
shooting, and reiterated that Dixon told him, in jail, that Lee was the driver of the car
during the McNew Court incident.
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going to slow down. He just wanted to get out and take care of his son. Dixon also said
he thought he killed his own cousin “over there.”54 Dixon said he had done things for the
hood, but the homies were not showing him recognition and giving him money and
things like that.
Dixon also told Jackson about the shooting on South Real Road. He said he was
in the car when Johnson came out of the window on the “red rags,” meaning Bloods. Lee
was driving, and Dixon was the one who pointed out the Bloods.55
On August 29, Darbee and another detective asked Jackson if he would agree to
testify if this case went to court. Jackson stated he was willing to do so, despite the fact it
would make him a marked man for the rest of his life. Jackson then did his time on his
parole violation and was released in January 2008, without any intervention from the
Bakersfield Police Department. Upon his release, he went into the Witness Relocation
Program. He was in the program for about five months, during which time his rent was
paid and he was given $400 to $500 per month for his other expenses. In June 2008, his
parole was violated for being around a gang member.56 It was his understanding that he
would be placed back in the Witness Relocation Program after he finished testifying.
Jackson was brought from prison to the county jail on October 31, in preparation
for his testimony at trial. Early in November, he was placed in a holding cell next to Lee,
54 Dixon did not go into further detail, although Jackson knew Dixon was related to
the Wallaces who lived on Watts Street. In one of his interviews with detectives, Jackson
related that Dixon said his cousin’s name was James Wallace.
55 On cross-examination, Jackson testified that when he was hearing this story, he
was not hearing that Lee was in the car and, in fact, he told detectives that Dixon was the
driver. On redirect examination, however, Jackson testified that he had told the grand
jury that Dixon said Johnson shot the person on the corner of Real Road and Planz, and
Lee was the driver of the car. Jackson reiterated that that was indeed what Dixon told
him while in custody on August 24.
56 This person had come to Jackson’s location. Jackson did not go into the Country;
he left the Country Boy Crips when he decided to testify.
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who saw him and wanted to know what Lee did to Jackson, and whether this was about
Lee having a relationship with the mother of Jackson’s baby. When Jackson said it did
not have anything to do with her, Lee wanted to know if Jackson was going to get on the
stand and testify against them. Jackson said he did not know because he wanted Lee to
leave him alone. When Lee kept on pressuring him, Jackson said he would not testify.
Lee then told Jackson to sabotage the case by saying it was something about the mother
of Jackson’s child that made Jackson mad and caused him to lie. Jackson agreed he
would do that so Lee would leave him alone. At some point during the conversation, Lee
said Rifleman wanted Jackson to say Jackson was having a relationship with Rifleman’s
girl who drove the Expedition. Jackson knew nothing about whether a girlfriend of
Johnson was going to testify, but told Lee that if it would help them, to “lay it out” to
him. The last time Jackson saw or talked to Johnson’s girlfriend was in 2006, when he
first got out of prison.
After this conversation with Lee, Jackson had a conversation with Johnson.
Johnson told Jackson the same thing Lee had. Johnson asked if Jackson was being paid
for his testimony, having heard Jackson received $10,000. Johnson also said that when
he beat up his girl in Las Vegas, he got a ride back to Bakersfield with Chris Haynes.
Johnson said he knew where Jackson was staying, and he mentioned a motel.
On another occasion in jail, Jackson was being placed in a holding tank when he
saw Johnson in another holding tank. Johnson called Jackson a “bitch ass nigga.” In
November 2008, Jackson’s custody situation was changed, and he was housed in his own
isolated cell with his own television, and transported to court by a special team. He was
testifying because he believed it was the right thing to do. If he were to serve his parole
violation in prison, however, he would not get his own cell or television.
Testimony of Law Enforcement Gang Experts
As of April 19, Kern County Sheriff’s Senior Deputy Little was in the gang unit,
and responsible for all Black gang activity in Kern County. He was an expert on gangs,
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and particularly African-American gangs. The first time he learned of Lee was in April,
after the McNew Court shootings. However, in April 2007, there were approximately
750 to 1,000 members and affiliates of African-American gangs, and he did not know
them all. He had known Johnson since 1998 or 1999 when Johnson’s name first came up
in a gang context. Little had heard of Dixon in the context of Dixon’s manslaughter
conviction, but did not know much about him. Little was unaware of any instances in
which Johnson was searched and a firearm was found, or in which his or his family’s
residence was searched and a gun or ammunition was found.
On July 7, Little conducted a search of a residence in the 2900 block of North Half
Moon, where Dixon was residing. Little found one letter from Juaqkeib Oliver and
another from Frankie Baker. Both contained gang references. The letter from Oliver was
signed “Munchy Locsta” and talked about the author being on an “egg hunt” because of
being sentenced to a lengthy prison term. “Egg” is a derogatory term for Eastside Crip
gang members.57 Little found no hoodies, black pants, guns, or ammunition.
During the course of his investigation, Little searched the Internet site
MySpace.com, to see if any defendants had a MySpace page.58 Little was unable to
locate a MySpace page for Dixon or Johnson, but found one registered to a David Lee
from Bakersfield that displayed photographs of the David Lee who was a defendant in
this case. The screen name was “Gunner,” and next to it was the acronym
“P.E.N.U.T.E.” A photograph of Lee and Johnson had been selected as the “this-is-who-
I-am” photograph.
57 “Cornbread” is a derogatory term for Country Boy Crips.
58 It was Little’s experience that gang members are often proud of their membership.
They may use a social network, such as MySpace, to advertise their membership,
sometimes posting photographs of themselves displaying gang signs, writing about their
gang ideology, and the like.
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By means of a search warrant, Little obtained public and private information for
the page from MySpace in August.59 Public information included a photograph of Lee
and Johnson and, under “Gunner’s interests,” a flashing message “Keepin’ it Gangsta.”
There was also a photograph of Lee and a person known to Little to have Country Boy
Crip connections. Private information included a subscriber’s birth date, city of
residence, and occupation that were consistent with Lee, as well as unread messages that
were consistent with the dates Lee was in custody. Some comments contained gang
references, such as “Cuz” (which Crip gang members call each other) and “South”
(another name for Country Boy Crips, who also go by South Side Crips). A number of
messages also contained gang references. Included in these was “900 block,” which
refers specifically to the Stroller Boy Crip subset of the Eastside Crips and which derives
from an address on Feliz Drive that is a famous location for the Stroller Boy Crip subset.
One of the messages, which was sent the morning of March 22 by someone accessing
Lee’s MySpace page, referred to the Tahoe being shot up the previous night on Pacheco
Road and the writer “bounc[ing] bacc,” and concluded, “it’s still ESK till I die.
P.E.N.U.T.E. Bitch.” This message was consistent with the shooting of Lee’s Tahoe on
Deanna Way, a location one or two blocks north of Pacheco Road. In Little’s opinion,
based on his overall experience, the reference to bouncing back was indicative of
someone bouncing back and taking retaliation. It was plausible that the retaliation was
the McGowan shooting, which fit with the timeline.60
59 If a MySpace account has been set to private, only those who request to be and are
accepted by the account holder as MySpace friends can access the private portion.
60 Little testified he could not cite a case in which gang members said something to
the effect of, “I bounced back,” to refer to a shooting of a rival. Little found no
references to the McNew Court shooting or the shooting at Real Road and Planz on the
MySpace page.
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Ultimately, Little obtained search warrants for various other MySpace sites,
including those of Lee’s family members. As a result, he learned P.E.N.U.T.E. stood for
“Putting Egg Niggas Under the Earth.” From interviews with some who used the
acronym, Little learned it was a clique of Westside Crips and Country Boy Crips, but did
not last long and was not considered to be an active clique anymore.
Based on the Agustin interviews, the materials he reviewed, and particularly the
MySpace investigation, Little opined that Lee was the owner of the MySpace account
under his name. Little further opined that the Web site was indicative of gang activity on
Lee’s part.
Senior Officer Sherman of the Bakersfield Police Department testified as the
People’s primary expert on gangs. He was familiar with the Country Boy Crips, which
existed in 2007, from personal contact with Country Boy Crip members, their rival gang
members, and investigating gang crimes in which Country Boy Crips were victims and
suspects. In his opinion, the Country Boy Crips was a criminal street gang in 2007, as it
had three or more people, its members had a common sign or symbol, and its members
were involved in an ongoing pattern of criminal activity involving criminal offenses
listed in the Penal Code.
Sherman recounted the history and growth of the Crip movement in Bakersfield;
the development of the Eastside, Westside, and Country Boy Crip factions; the traditional
territories of those factions; and the various subsets of the Country Boy and Eastside
Crips. Sherman testified that powder blue is the color associated with the Country Boy
Crips, and that the North Carolina college team uses the same color. Sherman also
explained the role played by graffiti, to both mark territory and show disrespect to rivals.
He also explained the role of tattoos, which, depending on the actual tattoo, show gang
membership or allegiance. They may also be indicative of disrespect to rivals, or pay
tribute to deceased fellow gang members. Sherman explained that, while there will be
members in every gang who have tattoos related to that gang, not every member will
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have a tattoo. Sherman also explained that clothing can be used to show membership in a
gang or to show disrespect to a rival gang. However, not all gang members wear their
colors all the time, because they know the consequences of being documented by law
enforcement in gang clothing and how it can affect a possible criminal trial. Just because
someone does not wear colors does not mean he is not a gang member. In addition, gang
members also use hand signs to communicate and show where they are from or that they
are a rival.
Sherman explained that respect is a very large part of the gang lifestyle, and in fact
a lot of gang members get into the gang because they want that respect. A gang member
can get respect by having a lot of money, being a good narcotic dealer, or being willing to
go around with a weapon and shoot rival gang members. If a person who belongs to a
gang is disrespected, that person has to answer back. If he does not, he ruins not only his
own respect, but shows the other gangs that his gang is not very strong. Often, the
retaliation must go above and beyond the nature of the disrespect. For instance,
disrespect with words will be answered with physical assault. A physical assault might
be answered with a shooting. A shooting might be answered with murder. Although the
retaliation does not have to be immediate, it has to occur.
In 2007, there were several Country Boy Crip hangouts — places where the gang
members would congregate, usually either to conduct their criminal activity or to throw
parties. The main ones were the D&A Market on Cottonwood Road, the Hollywood
Market on East Planz, the Watts Market at Watts and Lotus, and residences in the
900 block of Bradshaw, the 1100 block of Altus, and the residence on Deanna Way at
which Lee’s vehicle was shot in March. The Eastside Crips also had particular hangouts,
as did the Westside Crips. In 2007, a weak alliance existed between the Country Boy
Crips and the Westside Crips. That year, one of the latter’s common hangouts was a
residence in the 400 block of Eye Street.
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In 2007, the Country Boy Crips had over 200 members. Their main rivals were
the Eastside Crips and the Bloods. The rivalries were long-standing and ranged from
simple assaults and fights to drive-by shootings to homicides. One of the major incidents
between Eastside and Country was the Casa Loma shooting in 1999. Several Country
Boy Crip and Westside Crip gang members were at a wake at Casa Loma Park when
several Eastside Crip gang members came by, fired into the large crowd of people there,
and so shot several affiliates and family members of both gangs. Beginning in January
2007, the Eastside-Country rivalry showed itself in a number of shootings going back and
forth between the two, where members from each gang were victims of gang violence.
Sherman opined that the McNew Court shootings in April were part of this pattern, which
continued on into May.
The Eastside Crips’ primary activities were narcotics possession for sale, weapons
possession, assaults, and homicides. In Sherman’s opinion, the Eastside Crips were an
active criminal street gang in 2007. Based on his research, he opined that Anthony
Lyons, Othelon Lyons, Curtis Miller, and Albert Darrett were all Eastside Crip gang
members in 2007. Sherman found no information, however, to indicate James Wallace or
Vanessa Alcala were gang members.
In 2007, the Bloods and Country Boy Crips were rivals. The Bloods’ primary
activities were narcotic possession for sale, weapons possession, assaults, and homicides.
The Bloods in Bakersfield did not have a traditional territorial boundary; rather, because
they were small in number, they were more migrant and controlled small apartment
complexes or a few blocks in an area for a while until they usually were run out. In 2007,
their hangouts included Monterey and Inyo Streets and the Grinnage residence on
Deborah Street. A lot of rock cocaine sales were conducted at Inyo and Monterey
Streets. In 2007, there were tensions between the Bloods and other rival gangs in
Bakersfield.
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Based on his investigations, Sherman opined that the Bloods were an active
criminal street gang in 2007. From his research, he concluded that Adrian Bonner was at
least affiliated with the Bloods, and Edwin McGowan was a Blood gang member, in
2007.
In Sherman’s opinion, in 2007, the primary activities of the Country Boy Crips
were sales and possession for sale of narcotics, including rock cocaine (the primary drug
sold), methamphetamine, and heroin; possession of concealed and loaded firearms;
threats and intimidation of witnesses and victims; burglaries; shootings; and murders. In
Sherman’s experience, the sale of narcotics is used to fund the gang, allowing it to buy
more narcotics and firearms, and to rent cars and properties and facilitate gang activities.
The possession of concealed and loaded firearms assists the gang in that firearms are used
to fight against rival gang members, to protect gang members from rival gang members,
to protect their narcotic trafficking endeavors, and as a form of respect. A gang member
who carries a firearm will be “more macho” than one who does not. Burglaries are
committed by gang members to steal items to sell to gain money to further the gang’s
narcotic activity, and also in an effort to locate firearms. Shootings and murders are used
to fight against rival gang members, to show other gangs that they are not a gang to be
“messed with,” and to get respect.
Based on his investigations and the information he gathered from speaking with
other officers and from working in the gang unit, Sherman opined that in 2007, the
Country Boy Crip criminal street gang was engaged in a pattern of criminal activity.
Based on his training and experience, he further opined that gang members discussed
crimes and court cases among themselves (and sometimes with law enforcement
officers), and that the pattern of criminal activity by the Country Boy Crips was a matter
of common knowledge for gang members.
For purposes of showing predicate offenses and a pattern of criminal activity,
Sherman described the following cases:
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 Case No. BF95016A, involving Dixon. In that matter, in March 2001,
Dixon and another African-American male were walking in Eastside Crip territory when
they shot at several teenagers sitting on a porch. A month later, Dixon shot and killed an
Eastside Crip member who was in Country Boy Crip territory. On September 11, 2001,
Dixon pled to manslaughter and was sentenced to prison. In Sherman’s opinion, Dixon
was a member of the Country Boy Crip gang when the offense was committed.
 Case No. BF105692, involving Vertis Bayne. In that matter, in August
2003, Bayne shot an Eastside Crip while riding past on a bicycle. He was convicted of
attempted murder, assault with a firearm, and ex-felon in possession of a firearm with
gang enhancements, and sentenced to prison. In Sherman’s opinion, Bayne was a
member of the Country Boy Crips when the shooting was committed.
 Case No. BF106522, involving Joseph Ferguson. In that matter, in
April 2004, officers investigating a shooting tried to stop a vehicle driven by Ferguson,
but a pursuit ensued. During the pursuit, an Uzi-type firearm was thrown from the
vehicle. Ferguson was convicted of weapons violations, including gang member in
possession of a firearm, and evading police with a gang enhancement, and sentenced to
prison. In Sherman’s opinion, Ferguson was a member of the Country Boy Crips at the
time of the offenses.
 Case No. BF115529, involving Eddie Peterson, Sr. In that matter, in
March 2006, officers conducting a parole search of Peterson’s motel room found
narcotics and sales indicia. Peterson was convicted of possession of narcotics for sale
and sentenced to prison. In Sherman’s opinion, Peterson was a member of the Country
Boy Crips at the time of the offense.
In connection with the present case, Sherman researched the criminal history of
defendants in order to determine if they were active gang members at the time the crimes
were committed. He determined that Johnson, whose birthday was April 12, 1986, had
the monikers Lil C, Rifle, and Little Rifleman, and that he had gang-related tattoos in
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several places on his body. He also determined that Johnson had numerous police
contacts, dating back to October 2000, in which Johnson variously associated with
Country Boy Crip members, was in Country Boy Crip territory although he did not live
there, admitted his own Country Boy Crip membership, or was involved in gang-related
activity. Two of the contacts involved Johnson being the victim of gang-related
shootings, and another resulted in Johnson being convicted of being an accessory to a
gang-related murder that took place in Eastside Crip territory. In addition, what was
written on the shirt Johnson wore at the picnic in January 2007, showed his Country Boy
Crip membership and his disrespect toward Eastside Crips. Also, rap lyrics written by
Johnson referred to the gang, gang lifestyle, and violence associated with that lifestyle.
Sherman also reviewed Johnson’s jail bookings. In the bookings between December
2004 and September 2007, he claimed Crip and requested keep-away from the Bloods.61
Based on everything Sherman reviewed and personal contact he had had with
Johnson, Sherman opined that between March 1 and August 22, 2007, Johnson was an
active member of the Country Boy Crips. Agustin’s and Jackson’s testimonies reinforced
his opinion.
Sherman also researched Lee, whose date of birth was October 17, 1984. Lee had
what appeared to be a gang-related tattoo. His moniker was Gunner or Gunman. Lee had
several prior contacts with law enforcement dating back to July 30, 2005, at which time
he was with known Country Boy Crip gang members and associates. In February 2007,
he was stopped in the company of Johnson and other Country Boy Crip members, in
Country Boy Crip territory, although he did not live in that area. On March 21, 2007,
Lee was the victim of a shooting at a Country Boy Crip hangout on Deanna Way, but did
not stay at the crime scene because he did not want to have police contact at the time for
61 The jail does not have enough housing to keep apart the various cliques of the
gangs.
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“whatever personal reasons.” On March 22, he was again the victim of a shooting, this
time in the vicinity of a Blood hangout near the Country Boy Crip hangout on Deanna
Way. Again, he initially did not want to tell police about being shot, but later provided a
statement.62 When contacted by Sherman and another officer the next day, Lee admitted
that his friends and family were Country Boy Crips, although he did not admit that he
himself was. In August, Lee was arrested with Dixon after a vehicle pursuit, and a Tec-9
handgun was found in the vehicle.
Sherman also reviewed Lee’s MySpace page. There were gang references in some
of the incoming and outgoing messages, with the writer (who gave Lee’s telephone
number) identifying himself as a Country Boy Crip, referencing other Country Boy Crip
members, and trading threats with an Eastside Crip.63 The page also contained a
photograph of Lee making a “W” hand sign for Watts. In addition, letters seized during
the search of Lee’s residence on Myrtle Street contained gang references and indicia.
One of the letters from Robert (“Critter”) Lee expressed surprise that Lee was giving up
his job “for the hood,” and warned that if Lee was going to do that, he could only trust a
few people. Another from Robert Lee warned Lee not to tell their parents about what
Lee and his brother, a Country Boy Crip, were doing. By contrast, Robert Lee’s letters to
his father contained no gang references.
Sherman also reviewed Lee’s jail bookings. Lee did not claim a gang or request to
be kept away from anyone. Based on everything he reviewed, however, Sherman opined
that Lee was an active member of the Country Boy Crips between March 1 and
August 22, 2007. Agustin’s and Jackson’s testimonies reinforced this opinion.
62 In Sherman’s experience, people who are in gangs are often victims of gang
violence because of the lifestyle they are in.
63 Sherman conceded he did not have personal knowledge of the identity of the
author of any of the entries, and did not compare the dates and times with records of
Lee’s work history.
73.
Sherman also researched Dixon, whose date of birth was October 11, 1983. Dixon
had the monikers Dodo and Baby Clacc, and he had gang-related tattoos on various parts
of his body. Prior police contacts revealed that in May 1998, Dixon was arrested for
possession for sale of rock cocaine while in the company of individuals who later became
documented Country Boy Crip members. The next month, he was acting as a lookout for
narcotics sellers in Country Boy Crip territory. In September 1998, Dixon was arrested
for possession of rock cocaine and a firearm. In December 1999, Dixon was arrested in
Country Boy Crip territory for possessing a loaded firearm. In November 2000, Dixon
was the victim of a drive-by shooting while in Country Boy Crip territory. In
March 2001, Dixon was contacted at Watts and Lotus, although he did not live in
Country Boy Crip territory. In April 2001 was the gang-related shooting that resulted in
Dixon’s manslaughter conviction. During a July 2007 parole search of Dixon’s
residence, officers found letters containing gang references addressed to Dixon. In
August 2007, Dixon was with Lee during the vehicle pursuit. Dixon fled, but was later
arrested at his apartment. He was seen wearing light powder blue clothing, and a loaded
Tec-9 was found in the vehicle.
Sherman also reviewed Dixon’s jail bookings. In May and August 2007, Dixon
claimed Crip, with Country Boy Crip as the subset, and requested a keep-away from
Bloods. Based on everything he reviewed, Sherman opined that Dixon was an active
member of the Country Boy Crips between March and August 2007.
Sherman did background checks on persons mentioned by Agustin and Jackson in
their testimonies. In addition to determining their true names, he opined that Bus Loc,
Fat-Fat, D-Keys, Goo, Big Jim, Raybo, Two C’s, Nip, Cutty Pete, Riko, and Big Gage
were all Country Boy Crip members, with Gage being an OG. Sherman also researched
Agustin’s background. He found no gang-related contact with police for her.
Sherman explained that all gang members are expected to “put[] in work” for the
gang. “Putting in work” can mean selling narcotics, stealing items, getting guns, or even
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committing a shooting or assault. The type of work may vary according to the gang
member’s personality or strengths. A shot-caller is an old gangster who has been around
for a while, has put in his work, and is well respected. He may be the one who directs the
actions of others. There are shooters within the gang; these are the people who commit
the assaults, drive-by shootings, and even homicides. They are the aggressors and
enforcers. These persons are respected because they are feared, even by fellow gang
members. The status of the victim has an effect on the status of the shooter; if he shoots a
rival gang member, he gains status and respect. By contrast, if, in trying to shoot a rival
member he misses and kills an innocent party, it will not necessarily create a backlash
against him, but he will not get as much respect. It is common for shooters in a gang to
brag to fellow gang members about whom they shot. They will not, however, take credit
for something someone else did, as that would constitute disrespect toward the actual
shooter. The bragging, which is done to get credit for the shooting, does not commonly
involve a recitation of intricate details.
Sherman explained that a walk-up shooting involves walking up to the intended
target and shooting. If it is done in rival gang territory, the perpetrators usually will have
some sort of transportation. They will either drive through the territory to scope out the
target or see if it is available, then park somewhere close, physically get out of their
vehicle, walk up to the target, shoot, and then return to the vehicle and flee the rival gang
territory. Communication with other gang members during walk-up shootings usually is
by phone; there needs to be communication between the shooters and the person left in
the car in case something goes wrong and plans change. Clothing also plays a part; the
shooters commonly wear neutral colors that will not make them stand out to witnesses.
On the other hand, it can also be used as a ruse to throw suspicion onto a rival gang.
Layers of clothing may be worn so the shooters can change their physical appearance
after committing the crime and thus will not fit the descriptions given to police.
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Sometimes, gang members will stash clothing before the shooting and then change into it
later.
Sherman also explained that a drive-by shooting involves driving the car up to the
target. Disadvantages are that the shooters’ vehicle is seen and a vehicle leaving the
scene at a high rate of speed draws the attention of arriving law enforcement officers.
Shooters on foot can find somewhere to hide and even wait out the police.
According to Sherman, women play a supportive role in the Country Boy Crips
and other gangs. They provide the male gang member with financial support, a place to
live, a car to use, or a cell phone or clothing. They also conceal or stash the male gang
member’s illegal activities, such as guns or narcotics. Whether gang members discuss
gang activities with the women depends on the trust factor between them. If the two are
in an ongoing, serious relationship, he may divulge some things to her, but is unlikely to
go into depth regarding the inner workings of the gang. The male will instill in the
female the idea that she is not to tell; if she does, she risks assault or death.
Gangs have rules about not cooperating with law enforcement. One who
cooperates is considered a snitch. Even a gang member who is a victim of gang violence
often will not cooperate, because he wants to get his respect back, and allowing the police
to take care of it will not achieve that. Similarly, a gang member will not want to come
to court and testify, even against a rival gang member for that is considered snitching. A
gang member who testifies may face threats, intimidation, and assault, both to him and to
his family.
In answer to hypothetical questions based on the prosecution’s evidence, Sherman
opined that the shooting at Monterey and Inyo, shootings at McNew Court, and shooting
at Real Road and Planz were committed for the benefit of the Country Boy Crips, and
were done with the intent to promote, further, or assist criminal conduct by the Country
Boy Crips. Sherman further opined that if there was an agreement between the involved
Country Boy Crips to do the shooting or the killing, plus an act of traveling to the
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location for that purpose, those acts also were committed for the benefit of the Country
Boy Crips. A Country Boy Crip member promotes his gang by shooting at a rival gang.
Sherman further opined that if a Country Boy Crip who was a convicted felon was
in possession of a loaded firearm in the vicinity of McNew Court, that act would promote
or benefit the Country Boy Crips gang, because that gang member was willing to carry
the firearm and commit an act for the benefit of the gang. In addition, Sherman opined
that if four Country Boy Crips, each armed and in agreement to locate and kill the person
(or a relative of the person) they believed had murdered their fellow gang member, drove
to a location near Panorama Drive to carry out their intention, those acts were committed
for the benefit of, and with the intent to promote, further, or assist conduct by, the
Country Boy Crips. The Country Boy Crip who was killed was thereby disrespected, and
the four Country Boy Crips were acting to get the respect back for their gang and their
deceased friend. Even the act of getting together with guns and going to the location
would earn them respect, as they were willing to take matters into their own hands. If the
felon who possessed a firearm helped a second Country Boy Crip sell a firearm so the
latter could leave Bakersfield after shooting a rival gang member, his acts would be done
with the intent to promote or benefit the Country Boy Crips.
II
DEFENSE EVIDENCE
Johnson’s Case
Jim Dill lived in the Encina Street residence in mid-September 2007. Before he
cleaned the fireplace, there was a quarter inch of ash in it, but no burnt clothes or metal
zippers.
Theodore Richard was a cement mason at the time of trial, and had been doing that
since June 2008. As of the time he testified, he was not doing anything else for money.
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Richard was Jackson’s cousin. Jackson was “like a brother” to Richard, who was
testifying because of the various things Jackson had told him about this situation.
Jackson had been frequently seeking Richard out ever since Richard came home.
Jackson told Richard that Jackson was not going to testify in this case. Jackson
related that law enforcement had threatened to charge him with Raybo’s murder, and he
was afraid of being prosecuted for that offense. During their conversations, Jackson
mentioned a girl named Sara that he was dating. Jackson said she was supposed to be the
ex-girlfriend of one of the defendants in this case. Jackson told Richard that he was lying
about defendants. Richard never told Jackson not to come to court or what to say if he
took the witness stand, but he did tell Jackson not to testify to the lies Jackson was telling
Richard.
Richard denied ever being told by Johnson (whom he had never met) or anyone
else to intimidate Jackson or try to convince him not to come to court. He admitted,
however, having been convicted in federal court in February 1999 of conspiracy to
distribute and possession for sale of cocaine. While in federal custody in April 2000, he
pled no contest in Kern County to felony assault with a firearm.
Kevin Griffith saw the car involved in the shooting of Adrian Bonner. It was like
a red Nissan Sentra, and the paint on the back trunk hood was bleached or oxidized by the
sun. Later that night or possibly early the next morning, he saw what he was “pretty
sure” was the same car again.64 It had been pulled over at Fastrip on Real Road and
Ming. Shannon Fowler’s car was not the car Griffith saw at the time of the shooting or
later. Griffith was not able to clearly identify anyone in the car at the time of the
shooting. When he saw the car later, it contained three African-American men. The
64 In his 911 call, he said he was positive it was the car.
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driver appeared older than defendants. The others in the car were “[m]ostly older” than
defendants, perhaps in their late 30’s.65
Dixon’s Case
On August 11, 2007, Pamela Ginn’s grandson had a birthday party at Camelot
Park, an amusement park on Oak Street. The party began about 2:00 p.m. and lasted until
it started to get dark. Ginn, who had known Dixon most of his life, saw him at Camelot
Park that day. He was there until the party ended, and helped put the gifts in the car. At
no time did she see him leave the party.
Dixon testified that he was born in Bakersfield and raised in the Country.
Growing up in that area, Dixon — who acquired the nickname Dodo during childhood —
saw drug sales and shootings every day. He grew up with a bunch of kids who got into
the gang. They hung out together because they were friends and grew up with each other.
Dixon admitted that in addition to being called Dodo, he was sometimes called
Baby Clacc, a name he took for himself because he wanted to be like his cousin, Frankie
Baker, who was known as Big Clacc. Dixon knew the Country Boy Crips were a
criminal gang, but explained that those in the gang looked on each other as family, as
65 In the summer of 2007, Aaron Norwood drove a red 1991 or 1992 Ford Tempo.
The paint on Norwood’s car was pretty faded and dull.
On August 11, Norwood worked the 6:00 p.m. to 10:00 p.m. shift at PetsMart. He
took no breaks, although the store’s employees may have left around 9:30 that evening at
the manager’s behest. He drove his car to work that day and parked it in front of the
store. He did not drive the car during his shift, no one borrowed it, and when he left to go
home, it was in the same place that he had left it. After work, he went to a party, then,
around 2:00 a.m., he was pulled over at the Fastrip at Ming and Real Road, which was
about a mile from Real Road and Planz. At the time, he was with his cousin and a friend.
The police searched the car, and the next day searched Norwood’s house. They found a
live .38-caliber round of ammunition. It had belonged to Norwood’s late brother, and
Norwood had kept it. Norwood was interviewed at the police station and, after it had
been confirmed with his boss that he and his vehicle had both been present at PetsMart at
the time of the Adrian Bonner shooting, released.
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there were several generations of people within the gang. In addition, because
Bakersfield was so small, it was not unusual to have family members in the other gangs.
For example, Dixon’s father used to be an Eastside Crip.
Dixon was 14 years old when he became a Country Boy Crip. The only crimes he
ever committed were possessing firearms and selling rock cocaine. He never shot a gun,
but simply carried a firearm for protection. He sold drugs for himself. He did this in
Country Boy Crip territory. The gang left him alone because his mother lived there and
he was raised there.
Dixon denied committing the killing for which he pled no contest to voluntary
manslaughter in 2001; he was charged with murder and wanted to go to trial, but his
then-attorney told him juries did not like gangs. His attorney told him that he was facing
a sentence of 56 years to life in prison versus six years. Dixon, who was only 17 at the
time, did not want to do life. Dixon did not have any tattoos until he went to prison. He
got almost all of his tattoos when he was 18 and in prison, where tattoos are “just
fashion.”
Dixon was paroled on March 4, 2007. He moved in with his cousin Keshiea, who
lived off of Pacheco Road, but she got evicted. He then moved in with Myeshia Herring
on Chandler, then moved to an apartment on North Half Moon with Keanna King. Each
time he moved, he notified his parole officer. After he paroled, he did not do anything
for the gang, but just socialized with Country Boy Crips because all his friends were from
there. As for Johnson, Dixon knew he was a gang member, but did not know what his
role was in the gang. The two merely socialized, and Dixon never saw Johnson do any
criminal activities. Around March or April, Johnson was cutting hair in different
neighborhoods. When he cut hair, he sometimes wore his brown barber’s smock.
Dixon had known Lee since elementary school. Lee was only known as Dave.
Dixon never saw him sell any drugs; Lee did not grow up like that. When Dixon was in
prison, he would hear that Lee’s brothers were “hanging out,” but not Lee. Dixon had
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seen Lee smoke marijuana, but never with a mask. Dixon never saw him with any
weapons of any kind. Lee never wore powder blue clothes. How he dressed in court was
how he dressed on the street.
Dixon did not have a cell phone when he was first paroled, but Myeshia and the
others could not get in contact with him so she said her sister had a phone for him. He let
other people use the phone if they needed it. He last saw that phone on April 18, in
Agustin’s Expedition. Johnson dropped Dixon off, and Dixon forgot the phone. Dixon
called Johnson from the house phone at Keanna King’s residence and told Johnson he
would get it from him the next day.
The next day or shortly after, however, Myeshia contacted him and said Deputy
Little wanted to talk to him. Dixon called Little, who asked him to come in for an
interview. Dixon went, but denied he was known as Dodo, because that name had been
used against him back in 2001. He also denied that the cell phone found at the scene was
his, because the officers were telling him they had an eyewitness who had seen him on
McNew Court. They asked whether he was Rifleman. That was why Dixon
subsequently called Johnson; Dixon asked him why Dixon’s phone was at a crime scene.
Dixon could not explain to the detectives about forgetting the cell phone in the
Expedition, because if someone becomes a snitch, his family will disown him, and
Dixon’s whole family was from the gang.
After Dixon asked Johnson why Dixon’s phone was at a crime scene, Johnson left
and went to San Jose. Johnson never explained why the phone was there.
Dixon denied being present at the shootings on McNew Court. James Wallace
was his cousin, although they did not grow up together. Dixon denied robbing any drug
dealer on Cheatham Street or Reese Street. Robbing one’s own homie would bring
repercussions and would probably cause one’s own gang to turn against the robber.
Dixon was acquainted with Shannon Fowler. Among the people who lived in the
apartments in the 200 block of Eye Street during August 2007 were Fowler, who was
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having a sexual relationship with Lee, and Krystle, who was seeing Johnson. In addition,
a girl Dixon was seeing often visited her friends in the complex. Fowler had a red car,
but she never let Dixon and the others drive it. Dixon had never been in that car.
Dixon was familiar with the house in the 400 block of Eye Street. The man who
lived there sold drugs. Dixon grew up with the daughters of the woman who lived there.
Dixon never went to that location to help Johnson try to sell a gun so he could go to Las
Vegas. Johnson never took Dixon to the intersection at Real Road and Planz to show him
a camera.
Dixon grew up with Raybo. When he learned from his aunt that Raybo had been
killed, he borrowed his sister’s car and drove over to Reese and Cheatham Streets. He
estimated there were about 200 people there when he arrived, including Johnson, Lee,
and Raybo’s brothers. Everybody was discussing what had happened; everyone knew it
was an inside job, meaning it had to be a homie who did it. During this discussion,
Jackson arrived. Johnson walked over to him, and Dixon, Lee, Raybo’s brothers, and
some other homies followed. They all told Jackson that they had heard he killed Raybo.
Jackson denied it and blamed it on Fumes (David Taylor).
While everyone was talking to Jackson, Dixon left to pick up his sisters. He
returned later to the area of Reese and Cheatham, but never got into a vehicle with
Jackson, Johnson, and Lee to go to the Bakersfield College area to kill Fumes or his
father. Jackson was telling everyone that he knew where Fumes or Fumes’s father
stayed, but to Dixon’s knowledge, no one went up there.
Dixon denied knowing Adrian Bonner or being at South Real Road and Planz at
the time Bonner was shot. He was at Camelot Park, off California and Oak, at the time of
the shooting. Dixon learned of the Bonner shooting shortly after it happened. When he
and Ginn’s son left Camelot Park, they went to the residence of Columbus Holford.
Bonner’s sister and Holford were friends, and she had called Holford right after the
shooting.
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On August 23, the day he was arrested, Dixon was the driver of a car that also
contained Lee and someone called “Set Trip,” whose real name Dixon did not know. The
three were just talking. Dixon did not know there was a Tec-9 in the car until Set Trip
told him to drive off because he had the gun in the lunch pail. Set Trip tossed the gun in
the back seat, and Dixon let him out. Dixon jumped out of the car and ran because he did
not want to go back to prison. After his arrest, he was booked into the Kern County jail
and was placed in the same cell as Jackson. He never discussed the shootings with
Jackson, however. Although Dixon and Jackson talked while celled, the talk was about
them both changing and leaving the gang. Jackson was particularly worried about his
parole violation.66
Dixon pled guilty to participating in a criminal street gang in the case arising out
of the vehicle pursuit, and was sentenced to prison. While housed at Wasco State Prison,
Dixon heard that Othelon Lyons was also imprisoned there. They were never on the
same yard, however, and never had any contact or conversation.
Emmanuel Burts, Jr., married Agustin in September 2008. At the time he testified,
he was in jail as the result of her bringing charges against him.67 When he was arrested,
he telephoned and wanted to let the defense attorneys in this case know Agustin had lied
on the stand.
Before she had testified, Agustin and Burts lived in Fresno. Agustin had
transcripts and went over them. She also went on the Internet and looked at maps. She
told Burts she was refreshing her memory of the locations to which she went with her ex-
boyfriend.
66 According to Dixon, he himself gave up the gang lifestyle when he was arrested
for possession of the Tec-9.
67 Burts was pending charges of spousal abuse and felony threats. He had suffered a
number of prior felony and misdemeanor convictions for various offenses.
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While Agustin was in Bakersfield testifying in this trial, she telephoned Burts
every day to let him know when she was back in her room. She told Burts that she was
testifying truthfully, but was leaving out parts. She said she was not being truthful about
certain things because she did not want her son involved. Johnson sold a gun to
Agustin’s son, in Agustin’s presence, right before they went to Las Vegas. Agustin said
it was the gun used in the homicide. In addition, Agustin told Burts that either Lee or
Dixon (Burts could not remember which) had nothing to do with the murder.
In the time he had known Agustin, Burts formed the opinion that she was very
deceiving and conniving. Burts was aware Agustin received $750 for rent and $450 for
her personal things each month as a witness for the prosecution in this case. In Fresno
County, however, she applied for food stamps and welfare, and never reported she was
receiving that money.
Lee’s Case
According to Marc Taylor, a forensic scientist/criminalist and laboratory director
of Technical Associates, Incorporated, in Ventura, California, there are ways to preserve
and process items, such as expended shell casings, so that they can be tested for
fingerprints and potential DNA without interfering one with the other. Latent
fingerprints and DNA both can be recovered from expended shell casings. In his opinion,
placing individual shell casings in on cottony cushioning in small white boxes, as was
done in this case, could result in ridge lines left by whoever touched the casing being
wiped off by the cotton. Similarly, packaging multiple expended shell casings together in
an envelope could lead to a transfer taking place or to the ability to detect a fingerprint
being affected due to the rubbing together of various pieces of evidence. He could not,
however, say whether that happened in this case.
In DNA testing, when there is a good quantity of DNA, the peaks on the
electropherogram will be well within the normal analytical range. There are specific
procedures to test the analytical thresholds of the instrument to be sure that when there is
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a peak above a certain height, it represents a reliable result. If low levels of DNA from
an individual are present, things may show up in certain areas of the electropherograms
but disappear in others. Whether to include or exclude an individual as being in the
profile can then become subjective. For example, when an allele is present but in a
weaker range, there are limitations on what interpretations can be made of that allele
being present. Sometimes, the results are inconclusive. Taylor could not say whether
there was a subjectivity to the analysis of the DNA results in this case or whether there
were low quantities of DNA.
DISCUSSION68
I
PRETRIAL ISSUES
A. Change of Venue
Dixon and Johnson contend the trial court erroneously denied a defense motion for
change of venue, thereby denying them due process, a fair trial, and trial by an impartial
jury, as guaranteed by the state and federal Constitutions. The People say the motion was
properly denied.
1. Background
Johnson moved, in limine, for a change of venue based on pretrial publicity.
Johnson pointed to a June 10, 2008, article in the Bakersfield newspaper in which he was
called one of the top gang members in Kern County; a September 3, 2008, local
television news story in which a liquor store surveillance video was played that depicted
68 Although the issues often overlap, we have organized them to conform as closely
as possible to the chronology of events at trial.
In any instance where we find or assume error, we will discuss whether the error,
standing alone, is cause for reversal. If it is not, we will discuss any adverse effect it may
have had in conjunction with other errors when we address defendants’ claims of
cumulative prejudice.
85.
an unknown African-American male shooting a clerk in a February 2006 robbery,69 and
which reported that Johnson had now been named as the suspect in the shooting; and an
October 21, 2008, article in the Bakersfield newspaper titled “Shot-callers, the 66,” in
which the district attorney’s office included defendants among the 66 most dangerous or
significant gang members in Bakersfield. Dixon joined in the motion and noted that the
information was also on the Internet.70
The People opposed the motion, claiming Johnson and Dixon had failed to meet
their burden of showing they could not receive a fair trial in Kern County. Attached to
the People’s opposition were copies of the newspaper articles the People were aware of
regarding the case and defendants. There were three blurbs in the “[p]ublic safety”
section the day after each of the three shootings; a larger story, dated December 31, 2007,
and titled “Homicides drop in 2007,” that briefly described the year’s homicides,
including the McNew Court shootings; an article dated May 7, 2008, and titled
“MySpace pages help lead deputies to 2007 murder suspects,” that discussed defendants’
arrests and charges; an article dated May 10, 2008, titled “Search warrants reveal how
murder suspects were tracked down,” that discussed the case and contained a photograph
of Vanessa Alcala and her child; and an article dated June 10, 2008, titled “New D.A.
gang unit to target top offenders,” that contained a list of 27 gang members called “shot-
callers” by the Kern County District Attorney and who had cases pending against them.
Defendants were included on the list and named as Country Boy Crips, and the article
was accompanied by a photograph of the district attorney at a news conference, standing
next to a poster that included Johnson’s and Lee’s pictures, monikers, and charges.
69 According to Johnson, the video was also featured on America’s Most Wanted and
the national news.
70 Lee expressly declined to join in the motion.
86.
After hearing argument and viewing the poster, the trial court addressed the
relevant considerations (discussed post) and denied the motion. It deferred to voir dire a
determination whether the article had prejudiced the panel and an evaluation of whether a
renewal of the motion would be justified.
Jury selection began on November 17, 2008. Prospective jurors were questioned,
inter alia, about any media exposure they had had to defendants or the case, as well as
any exposure to or personal knowledge of gangs. Those whose answers suggested a
fixed prejudgment of the case, either because defendants purportedly were gang members
or because of what was known about the case through media exposure, were excused for
cause. At the time all sides accepted the panel as constituted, the defense had not
exhausted all of its peremptory challenges. At the time the alternates were accepted, only
Dixon had exercised all of his peremptory challenges. At no time did any defendant
request that the change of venue motion be renewed.
2. Analysis
“‘A change of venue must be granted when the defendant shows a reasonable
likelihood that in the absence of such relief, a fair trial cannot be had.’” (People v. Panah
(2005) 35 Cal.4th 395, 447; § 1033, subd. (a).) “‘[R]easonable likelihood’” means
something less than “‘more probable than not,’” but something more than “merely
‘possible.’” (People v. Bonin (1988) 46 Cal.3d 659, 673, overruled on another ground in
People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Each case is resolved on its own facts,
and the moving party bears the burden of proof. (People v. Sanders (1995) 11 Cal.4th
475, 505.)
“In contrast to pretrial appellate review by way of a petition for a writ of mandate,
review on appeal is retrospective. Thus, ‘any presumption in favor of a venue change is
unnecessary, for the matter may then be analyzed in light of the voir dire of the actual,
available jury pool and the actual jury panel selected. The question then is whether, in
light of the failure to change venue, it is reasonably likely that the defendant in fact
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received a fair trial.’ [Citation.]” (People v. Jennings (1991) 53 Cal.3d 334, 360.) “On
appeal, ‘“the defendant must show both that the [trial] court erred in denying the change
of venue motion, i.e., that at the time of the motion it was reasonably likely that a fair
trial could not be had, and that the error was prejudicial, i.e., that it [is] reasonably likely
that a fair trial was not in fact had.”’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th
900, 943.)
On appeal, we review the trial court’s resolution of factual questions for
substantial evidence, but we independently determine the ultimate question of whether a
fair trial was obtainable. (People v. Sanders, supra, 11 Cal.4th at pp. 505-506; People v.
Jennings, supra, 53 Cal.3d at pp. 359-360.) This de novo standard of review applies to
our consideration of the five factors we must examine in making that determination:
(1) the nature and gravity of the offenses; (2) the nature and extent of the media coverage;
(3) the size of the community; (4) the status of the defendants in the community; and
(5) the popularity and prominence of the victims. (People v. Panah, supra, 35 Cal.4th at
p. 447; People v. Jennings, supra, 53 Cal.3d at p. 360; People v. Harris (1981) 28 Cal.3d
935, 948.)
With regard to the first factor, “[t]he peculiar facts or aspects of a crime which
make it sensational, or otherwise bring it to the consciousness of the community, define
its ‘nature’; the term ‘gravity’ of a crime refers to its seriousness in the law and to the
possible consequences to an accused in the event of a guilty verdict.” (Martinez v.
Superior Court (1981) 29 Cal.3d 574, 582.) Special-circumstance murder is an offense
of “utmost gravity,” even when the death penalty is not sought. (Williams v. Superior
Court (1983) 34 Cal.3d 584, 593.) The multiple murders and attempted murders
involved here are extremely serious offenses; thus, this factor favors granting a change of
venue, but it is not dispositive. (People v. Davis (2009) 46 Cal.4th 539, 578; People v.
Weaver (2001) 26 Cal.4th 876, 905.) Although the fact a pregnant woman and her
unborn child were among the victims impacts the nature of this case, this is something
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that “will not change with a change of venue.” (People v. Edwards (1991) 54 Cal.3d 787,
808.) “‘Prospective jurors would sympathize with the [victims’] fate’ no matter where
the trial was held, and this sympathy stems from the nature of the crime, ‘not the locale of
trial.’ [Citation.]” (People v. Davis, supra, 46 Cal.4th at p. 578.)
The second factor, the nature and extent of the media coverage weighs against a
change of venue. It simply cannot be deemed “persistent and pervasive.” (Martinez v.
Superior Court, supra, 29 Cal.3d at p. 585; see, e.g., People v. Lewis (2008) 43 Cal.4th
415, 448-449 [39 newspaper articles, and 95 minutes of videotaped television coverage,
spanning period of 13 months, “considerably less extensive” than in other cases in which
California Supreme Court affirmed denials of motions to change venue]; People v.
Panah, supra, 35 Cal.4th at p. 448 [18 articles over 12-month period “can hardly be
characterized as ‘extensive’”].) The coverage was largely factual and noninflammatory;
although naming defendants as gang “shot-callers” was potentially prejudicial, evidence
of defendants’ gang affiliation and level of involvement was admitted at trial, so no
prejudice resulted. (See People v. Lewis, supra, 43 Cal.4th at pp. 449-450.)
“[T]he fact that prospective jurors may have been exposed to pretrial publicity
about the case does not necessarily require a change of venue. [Citation.] ‘“It is
sufficient if the juror can lay aside his impression or opinion and render a verdict based
on the evidence presented in court.”’ [Citations.]” (People v. Panah, supra, 35 Cal.4th
at p. 448.) Here, the prospective jurors had, at most, vague recollections of past news
coverage, and any who appeared to have prejudged defendants’ guilt were excused.
Defendants’ failure to exhaust their peremptory challenges strongly suggests they
themselves concluded the jurors were fair. (Ibid.)
Also weighing against a change of venue is the size of the community, the third
factor. “The larger the local population, the more likely it is that preconceptions about
the case have not become imbedded in the public consciousness. [Citation.]” (People v.
Balderas (1985) 41 Cal.3d 144, 178.) During the hearing on defendants’ motion, the
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prosecutor represented, without contradiction, that Kern County had a population of
almost 800,000 people. According to California Department of Finance figures for 2007,
the latest year available, Kern County had a population of just under 810,000, making it
the 13th most populous of California’s 58 counties. (Cal. Statistical Abstract (48th ed.
2009) Dept. of Finance, table B-3, at [as of Nov. 15, 2009].) Venue changes have, almost without
fail, not been granted or ordered on review in cases involving counties with such large
populations. (See, e.g., People v. Weaver, supra, 26 Cal.4th at p. 905 [where adverse
publicity “neither relentless nor virulent,” Kern County’s “moderate size” (then
exceeding 450,000) did not undermine trial court’s decision to deny change of venue
motion]; People v. Webb (1993) 6 Cal.4th 494, 514 [motions to change venue granted
where county relatively isolated and small, in contrast to San Luis Obispo County
(population then almost 200,000)]; People v. Fauber (1992) 2 Cal.4th 792, 818 [size and
nature of Ventura County (population then of 619,300) did not support venue change;
“[v]enue changes are seldom granted from counties of such a large size”]; People v.
Daniels (1991) 52 Cal.3d 815, 852 [no change of venue; murder of two police officers
garnered extensive media coverage, but community (Riverside County) had population
exceeding 600,000]; People v. Hamilton (1989) 48 Cal.3d 1142, 1158 [most recent
successful venue cases involved nonurban counties with substantially smaller populations
than Tulare County (population then approximately 250,000, ranking it 20th among
California counties in population size)]; People v. Balderas, supra, 41 Cal.3d at pp. 178-
179 [cases in which venue changes granted or ordered on review generally involved
counties with much smaller populations than Kern (population then 405,600, ranking it
14th among California counties in that respect)].) We have no doubt Kern County’s
population was of such a size that it neutralized or diluted the impact of what scant media
coverage there was. (See People v. Weaver, supra, 26 Cal.4th at p. 905.)
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Turning to the final factors — the status of the defendants, and prominence and
popularity of the victims — we conclude they too weigh against a change of venue.
Neither defendants nor the victims were outsiders to the community, nor were they
prominent personages. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1323; People v.
Daniels, supra, 52 Cal.3d at p. 852.) Any prominence achieved by the victims through
news accounts of the shootings did not favor a change of venue; since all led relatively
obscure lives, “the community was not likely to have experienced a uniquely heightened
sense of loss or anger which would presumably be alleviated by trial in another county.
Any sympathetic features of the case would be apparent wherever it was tried.” (People
v. Webb, supra, 6 Cal.4th at pp. 514-515.) Likewise, any unsympathetic features of the
case — the gang allegations and evidence — would also be apparent wherever the case
was tried.
In sum, the gravity and nature of the crimes supported a change of venue. The
other relevant factors did not. Accordingly, we conclude the trial court did not err in
denying the motion made prior to jury selection.
“‘[W]hen a trial court initially denies a change of venue motion without prejudice,
a defendant must renew the motion after voir dire of the jury to preserve the issue for
appeal.’” (People v. Maury (2003) 30 Cal.4th 342, 388-389.) Here, as we have noted,
defendants did not renew the motion after voir dire. Even if we found no forfeiture,
however (see People v. Prince (2007) 40 Cal.4th 1179, 1215-1216), we would conclude
defendants’ failure to renew the motion and to exhaust their peremptory challenges
signified their apt recognition that the jury, as selected, was fair and impartial. (People v.
Beames (2007) 40 Cal.4th 907, 922.)71
71 Accordingly, we do not address defendants’ alternative claim of ineffective
assistance of counsel.
91.
As the California Supreme Court stated in People v. Lewis, supra, 43 Cal.4th at
page 450: “We … conclude that on appeal defendant[s have] not shown a reasonable
likelihood that [they] did not receive a fair trial before an impartial jury. The jury voir
dire bore out the trial court’s conclusion that a fair jury could be chosen. Each juror
assured the trial court that he or she could be unbiased notwithstanding exposure to media
reports about the case. Although the jurors’ assurances of impartiality are not dispositive
[citations], neither are we free to ignore them [citations]. [Courts] have in the past relied
on jurors’ assurances that they could be impartial. [Citations.] Absent a showing that the
pretrial publicity was so pervasive and damaging that we must presume prejudice
[citations], we do the same here. Considering all the circumstances, defendant[s have]
not established a reasonable likelihood, as opposed to a mere possibility, that [they] did
not in fact receive a fair trial before impartial jurors. [Citation.]”
B. Severance
Lee and Dixon contend the trial court abused its discretion by denying their
pretrial motions for severance. They say the trial court’s ruling resulted in gross
unfairness and denied them their constitutional right to a fair trial. The People say a joint
trial was proper.
1. Background
Prior to trial, Lee moved to sever his trial from that of the other defendants, should
the trial court deny his in limine motions to (1) exclude testimony related to Lee being
arrested, charged, and convicted in the case involving the Tec-9 found in the backseat of
the car driven by Dixon; (2) exclude any testimony by Agustin that Johnson told her Lee
performed certain acts; (3) preclude the People from questioning any of its witnesses
about Lee’s criminal history, allegations, or character evidence; (4) preclude any
testimony concerning Agustin’s, Jackson’s, and Bonner’s fear of defendants; and/or
92.
(5) exclude any testimony concerning the domestic violence incident between Johnson
and Agustin that occurred in Las Vegas in August 2007.72 The People opposed the
motion, arguing in pertinent part that (1) a joint trial was preferred; (2) there existed no
Aranda-Bruton73 issues that required severance; (3) incriminating statements made by
defendants were declarations against interest; (4) no severance was required where
inconsistent defenses were to be presented; and (5) no severance was required since the
evidence against all defendants was strong.
During argument on various evidentiary in limine motions, all defendants joined in
the motion for severance. After a lengthy discussion, the trial court found no basis upon
which to grant severance due to the introduction of expert testimony on BWS or evidence
of domestic violence as it related to Johnson and Agustin. Accordingly, it denied the
motion for severance as to that issue, but reserved its ruling insofar as the motion was
based on other issues.
Defendants subsequently requested an Evidence Code section 402 hearing to
determine whether Senior Officer Sherman was qualified to testify as a gang expert. In
part, his testimony concerned Dixon’s prior voluntary manslaughter conviction and
involvement in an earlier shooting. The People sought admission of evidence concerning
the prior incidents both in terms of the information upon which Sherman relied in
forming his opinions, and also pursuant to Evidence Code section 1101, subdivision (b).
After arguing admissibility of the evidence under that statute, Lee asserted that admission
of prior gang-related shootings by another defendant was unduly prejudicial to him,
especially in light of the disparity in gang-related evidence vis-à-vis Lee as opposed to
72 Although Lee specified that particular incident, his argument appears to have
encompassed any incidents of domestic violence between Johnson and Agustin.
73 Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d
518.
93.
the other defendants, and that the court could not mitigate the prejudice through an
admonishment. Johnson joined.
After extensive argument, the trial court ruled that Dixon’s prior acts were
admissible under Evidence Code section 1101, subdivision (b), and not subject to
exclusion under Evidence Code section 352.74 Lee then renewed his motion for
severance, citing the “vast[ly]” disproportionate evidence. Johnson joined the motion,
requesting severance from Dixon. The People responded that severance would serve no
purpose because Lee and Johnson were charged with identical crimes, the evidence was
strong against all defendants, and the evidence would be admissible against each in
separate trials. After further argument concerning, in large part, the admissibility against
nondeclarant defendants of statements made by another defendant to Agustin or Jackson,
the trial court denied the motion to sever without prejudice.
Just before the start of jury selection, Lee again moved for severance of his trial
from that of the other defendants. Lee cited the domestic violence incidents that were
going to be admitted against Johnson; the testimony of the BWS expert that was going to
be admitted with respect to Agustin; the lengthy amount of gang evidence that was going
to be produced against Johnson; the statements made between Johnson and Agustin,
some of which would not be cross-admissible; the statements between Johnson and
Jackson, some of which would not be cross-admissible; Dixon’s prior manslaughter
conviction, service of time in prison, and subsequent parole status; the tattoos and
photographs of Johnson and Dixon, that would not be cross-admissible against Lee;
statements between Dixon and Agustin that would not be cross-admissible; statements
between Dixon and Jackson that would not be cross-admissible; and the gang evidence as
to Johnson and Dixon that would not be cross-admissible against Lee. Lee expressed
particular concern about spillover prejudice, and the disparate amounts and strength of
74 We will discuss the propriety of these rulings, post.
94.
the evidence against each defendant. The People opposed the motion on the grounds that
the evidence was strong as to each defendant, as well as cross-admissible. Finding Lee
could receive a fair trial, the court denied the motion.
2. Analysis
Section 1098 provides in part: “When two or more defendants are jointly charged
with any public offense, … they must be tried jointly, unless the court order separate
trials.” Under this section, “a trial court must order a joint trial as the ‘rule’ and may
order separate trials only as an ‘exception.’ [Citation.]” (People v. Alvarez (1996) 14
Cal.4th 155, 190.)
“‘A “classic” case for joint trial is presented when defendants are charged with
common crimes involving common events and victims.’ [Citation.] Though severance is
in the sound discretion of the trial court, severance should generally be granted ‘“in the
face of an incriminating confession [by a codefendant], prejudicial association with
codefendants, likely confusion resulting from evidence on multiple counts, conflicting
defenses, or the possibility that at a separate trial a codefendant would give exonerating
testimony.”’ [Citations.]” (People v. Pinholster (1992) 1 Cal.4th 865, 932, disapproved
on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Massie
(1967) 66 Cal.2d 899, 916-917; cf. Zafiro v. United States (1993) 506 U.S. 534, 539.)
The foregoing factors are not exclusive and are most often applied in cases
involving defendants who are charged with crimes arising out of the same episode(s), as
opposed to separate occasions. (Calderon v. Superior Court (2001) 87 Cal.App.4th 933,
938.) In the present case, defendants were jointly charged with crimes arising out of the
same episodes for the most part, but Dixon was not charged in count one, and Lee was
not charged in counts six and ten. Under such circumstances, it has been held that the
criteria guiding trial court discretion with respect to joinder of counts (§ 954) are also
instructive. (Calderon, supra, at pp. 938-939.) They are: “(1) whether evidence of the
crimes would be cross-admissible; (2) whether some charges are likely to inflame the
95.
jury against the defendant; (3) whether a weak case has been joined with a strong one, or
with another weak case; and (4) whether any of the charges is a potentially capital
offense.” (Id. at p. 939.)
“We review a trial court’s denial of a severance motion for abuse of discretion
based on the facts as they appeared at the time the court ruled on the motion. [Citation.]”
(People v. Avila (2006) 38 Cal.4th 491, 575; accord, People v. Mendoza (2000) 24
Cal.4th 130, 160-161 [discussing review under § 954].) A trial court abuses its discretion
when its ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2
Cal.4th 1198, 1226.) “If we conclude the trial court abused its discretion, reversal is
required only if it is reasonably probable that the defendant would have obtained a more
favorable result at a separate trial. [Citations.] If the court’s joinder ruling was proper
when it was made, however, we may reverse a judgment only on a showing that joinder
‘“resulted in ‘gross unfairness’ amounting to a denial of due process.”’ [Citation.]”
(People v. Lewis, supra, 43 Cal.4th at p. 452.)
At the time of its rulings, the trial court reasonably could have concluded the
potentially prejudicial evidence either would have been admissible in separate trials or, to
the extent it would not have been, could be adequately compartmentalized among
defendants by means of limiting instructions. “The fact that evidence of other incidents
was admissible against some defendants and not others does not require separate trials.
[Citation.]” (People v. Goodall (1982) 131 Cal.App.3d 129, 141.) The court also
reasonably could have concluded severance was not warranted by potentially antagonistic
defenses (see People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 [trial court abuses its
discretion in denying severance only where conflict between defendants alone will
demonstrate to jury that defendants are guilty]), by the relative dissimilarity of the
quantity and quality of the evidence implicating one defendant as compared to the others
(see id. at p. 151; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43), or by
prejudicial association (see Letner and Tobin, supra, at p. 152 [prejudicial association
96.
justifying severance occurs where evidence regarding one defendant might make it likely
jury would convict that defendant, and more likely find codefendant guilty based on
relationship between the defendants rather than upon evidence separately implicating
codefendant]).
One asserting prejudice in this situation must prove it; a bald assertion is not
enough. (People v. Kemp (1961) 55 Cal.2d 458, 477.) “[D]efendants are not entitled to
severance merely because they may have a better chance of acquittal in separate trials.
[Citations.]” (Zafiro v. United States, supra, 506 U.S. at p. 540.) We conclude the trial
court did not abuse its discretion by denying the severance motions.
However, we cannot reject, out of hand, Lee and Dixon’s claims that joinder
resulted in such unfairness as to violate due process. We recognize that jurors are
presumed to follow instructions limiting the purpose(s) for which evidence can be
considered or the defendant(s) against whom it can be considered. (People v. Coffman
and Marlow, supra, 34 Cal.4th at pp. 43-44.) Nevertheless, there can be no doubt in the
present case that these matters sometimes were complex.
“Prejudice cannot be understood in a vacuum. The touchstone of the court’s
analysis is the effect of joinder on the ability of the jury to render a fair and honest
verdict. Prejudice will exist if the jury is unable to assess the guilt or innocence of each
defendant on an individual and independent basis. ‘Rather, the ultimate question is
whether under all of the circumstances, it is within the capacity of the jurors to follow the
court’s admonitory instructions and, correspondingly whether they can collate and
appraise the independent evidence against each defendant solely upon the defendant’s
own acts, statements, and conduct.’ [Citation.]” (United States v. Tootick (9th Cir. 1991)
952 F.2d 1078, 1082 [discussing joinder and severance under Fed. Rules Crim.Proc.].)
As we cannot assess the fairness of trial without reviewing the trial record and analyzing
many of the other claims of error made by defendants on this appeal (see People v.
97.
Cleveland (2004) 32 Cal.4th 704, 726), we will revisit the issue of severance in our
discussion of cumulative prejudice, post.
C. Batson-Wheeler
Defendants challenge the trial court’s denial of their Batson-Wheeler75 motions,
which were predicated on the prosecution’s peremptory excusals of physically disabled
and African-American prospective jurors.76 The People say the challenged peremptory
strikes were constitutionally permissible.
“The purpose of peremptory challenges is to allow a party to exclude prospective
jurors who the party believes may be consciously or unconsciously biased against him or
her.” (People v. Jackson (1992) 10 Cal.App.4th 13, 17.) “There is a rebuttable
presumption that a peremptory challenge is being exercised properly, and the burden is
on the opposing party to demonstrate impermissible discrimination. [Citations.]”
(People v. Bonilla (2007) 41 Cal.4th 313, 341.)
Peremptory challenges may properly be used to remove prospective jurors
believed to entertain specific bias, i.e., bias regarding the particular case being tried or the
parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, “‘[a]
prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of
group bias — that is, bias against “members of an identifiable group distinguished on
racial, religious, ethnic, or similar grounds” — violates the right of a criminal defendant
to trial by a jury drawn from a representative cross-section of the community under
75 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler). Wheeler has been overruled in part by Johnson v. California
(2005) 545 U.S. 162 (Johnson).
76 Defendants are African-American. Although there is no indication any is hearing
impaired or otherwise physically disabled, a defendant and prospective juror(s) alleged to
have been wrongly excused need not be members of the same group in order for the
defendant to complain. (Powers v. Ohio (1991) 499 U.S. 400, 416.)
98.
article I, section 16 of the California Constitution. [Citations.] Such a practice also
violates the defendant’s right to equal protection under the Fourteenth Amendment to the
United States Constitution. [Citations.]’ [Citation.]” (People v. Bell (2007) 40 Cal.4th
582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-
277.)77
“The United States Supreme Court has … reaffirmed that Batson states the
procedure and standard to be used by trial courts when motions challenging peremptory
strikes are made. ‘First, the defendant must make out a prima facie case “by showing that
the totality of the relevant facts gives rise to an inference of discriminatory purpose.”
[Citations.] Second, once the defendant has made out a prima facie case, the “burden
shifts to the State to explain adequately the racial exclusion” by offering permissible
race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral
explanation is tendered, the trial court must then decide … whether the opponent of the
strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v.
Avila, supra, 38 Cal.4th at p. 541, quoting Johnson, supra, 545 U.S. at p. 168.) The
California Supreme Court has “endorsed the same three-part structure of proof for state
constitutional claims. [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 596; see
Wheeler, supra, 22 Cal.3d at pp. 280-282.)
With these principles in mind, we turn to the case before us.
77 Defendants raise a separate equal protection claim under the state Constitution.
“Our state constitutional guarantee of equal protection (Cal. Const., art. I, § 7) is
substantially equivalent to that contained in the United States Constitution (U.S. Const.,
14th Amend.), and our analysis of state and federal equal protection claims is
substantially the same. [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1211;
accord, People v. Leng (1999) 71 Cal.App.4th 1, 11; see People v. Taylor (2001) 93
Cal.App.4th 318, 322; In re Evans (1996) 49 Cal.App.4th 1263, 1270.) Accordingly,
defendants’ contention is subsumed within our existing discussion, and we do not
separately address it.
99.
1. Physical Disabilities
a. Background
1. H.D.
Prospective Juror H.D. was employed as a caterer. She was also a student at
Bakersfield Adult School, where she was halfway to getting her high school diploma and
was taking regular high school classes. In addition, she taught a parenting class at a
counseling center. She helped the director with parents who had lost their children,
especially through adoption. Her son was being raised by her sister. She had two
brothers in gangs, but had no contact with them. She had no prior jury service, no close
friends or relatives in law enforcement, and did not know anyone involved in the trial.
She did not believe there was anything about the nature of the case or charges that would
affect her ability to be fair and impartial. Her home had been burglarized about eight
months earlier, and she had pled no contest to misdemeanor disturbing the peace about
15 years earlier. She had never had an unpleasant experience with law enforcement. She
promised she could and would be fair to both sides in this case.
Because of her eyesight and hearing, H.D. did not watch much television or read
much of the paper, and so had not heard anything about this case other than what she had
heard in court. She had heard all the questions asked by the attorneys of, and answers
given by, her fellow prospective jurors.
H.D. initially could not hear the prosecutor, whose microphone may not have been
on at the start of the prosecution’s voir dire. When H.D. erroneously called the
prosecutor “sir” and then apologized, the prosecutor said, “There are a lot of them
here.”78 H.D. responded, “They’re handsome too.”
78 All three defense attorneys, and one of the two prosecutors, were male. The lead
prosecutor was female. (For the most part, we refer to “the prosecutor” as a single
entity.)
100.
H.D. was using a device to help her hear better, and she confirmed she had been
able to hear the proceedings.79 She was partially sighted, but could see the attorneys and
the wall behind them. She had trouble with small things and used a magnifier to read
small print. If she brought her magnifier, she would be able to read something like a
typewritten document. It would not be too difficult for her to read things in this case; she
was the kind of person, she told the prosecutor, who, whatever was given, would do her
work. She was very independent, too.
Outside the presence of the prospective jurors, the prosecutor related that she had
“some concerns” about H.D.’s mental abilities. The prosecutor felt some of H.D.’s
answers were somewhat appropriate, but that a lot were inappropriate. The prosecutor
wanted to ask additional questions, and it was agreed H.D. would be questioned in
chambers. During this further questioning, H.D. related that she had never been under a
conservatorship and did not have a payee for the SSI benefits she received due to her
eyesight. She was prohibited from having a driver’s license due to her eyesight, but
could get a ride or take the bus to court.
On a couple of occasions during this questioning, H.D. had to ask the prosecutor
to repeat a question. At one point, the prosecutor asked if H.D. remembered the previous
discussion of the People’s burden of proof in the case. H.D. answered affirmatively;
when asked what that burden was, H.D. answered, “I’m okay with that.” She then asked
the prosecutor to repeat the question, and this time responded, “I have no burden of
proof.” Once reminded of the People’s burden, H.D. said she had no problem with it.
The prosecutor then asked if H.D. remembered the discussion about past misconduct of
defendants, and that it could be used for specific purposes. When H.D. said yes, the
79 For best reception, the device had to be kept zeroed in on the other half of the
court’s apparatus for hearing-impaired jurors, which was situated above the judge’s head.
101.
prosecutor asked if she remembered what those purposes were. H.D. responded, “Only
on something that’s related to that and no other.”
The prosecutor then questioned H.D. about her comment that the defense attorneys
or the gentlemen at the table were handsome. Asked which ones she thought were good
looking, H.D. responded that they were all good looking. She also told Lee’s attorney he
had a good smile. When the lead prosecutor asked what about the male prosecutor, H.D.
stated that he had a beard. Asked who did, H.D. referred to Lee’s counsel and said it was
white. She thought about Christmastime when she saw it, because she thought he looked
like Santa Claus. Asked if that would cause her to favor his side, she said no. It was just
something nice on her part. It was a joke, and she did not feel she was rooting for either
side.
Questioning then passed to the defense. H.D. apparently could not hear counsel
for Dixon until he turned on his microphone. H.D. related that she had no problem
seeing him at counsel table, that she was born completely blind and partially deaf, and
that she had undergone many surgeries in her eyes and ears. When she went to school,
she had trouble learning because of her hearing and eyesight. She did not get hearing
aids until she was 19. They worked well, but it was difficult for her to hear in court with
just her hearing aid because of interference from the background sound. She could hear
everything with the court’s device, however. H.D. felt that in the jury room, she would
have no problem talking to the other jurors or listening to them. She felt she was on an
equal basis with them and wanted to be treated that way.
Defense counsel all expressly passed for cause, and the prosecutor did not
challenge for cause. The court found H.D. qualified to serve as a juror, stating: “I
listened to her. I watched her body language. And sure, she has some challenges, but
she’s been able to overcome those handicaps. I don’t know if I could have done as well
as she’s done.” It also observed that the judicial branch’s goals included fairness,
diversity, and access.
102.
The next peremptory challenge belonged to the People, and the prosecutor excused
H.D. Told by the court that she was excused, H.D. responded, “Who, me?” Counsel for
Johnson then asked to take up a matter at sidebar. When he asked if H.D. could stay for a
moment, a prospective juror said, “She can’t hear you.” The clerk said she would take
care of H.D.
After a brief conference, the court asked the prospective jurors, including H.D., to
leave the courtroom while it heard a motion. Outside their presence, it asked if counsel
for Johnson had any support for the notion that persons with visual and hearing
impairments were cognizable groups for purposes of the Batson-Wheeler motion he had
made at sidebar. Counsel responded that it was his understanding being blind or hearing
impaired were not appropriate grounds upon which to challenge a prospective juror, that
H.D. could overcome her impairments with certain aids, and that she could keep an open
mind.
The court expressed its feeling that H.D. was not a member of a cognizable group
for Batson-Wheeler purposes. The prosecutor stated that assuming a cognizable class
existed, no prima facie showing had been made that H.D. was excused because of her
physical disabilities. The prosecutor declined to offer reasons for excusing H.D. absent a
request by the court because she did not think a prima facie case had been shown, but she
stated for the record that after the sidebar was requested, H.D. was wandering around the
courtroom and tried to go in the back with the court and counsel. The court noted that
she did not have her hearing-impaired device with her. The prosecutor agreed, and
pointed out that she tried to go behind defendants, then toward an exit door, and another
juror had to catch her and bring her back in. The prosecutor asserted her confusion was
obvious, and that if someone merely does not know what is happening, that person does
not try to go back into the judge’s chambers.
The court invited counsel to address whether a prima facie case of systematic
exclusion had been shown. Counsel for Johnson argued that he saw no reason for
103.
excusing H.D. other than her special needs, as she did not show a preference for either
side. The court stated: “I don’t feel that she’s part of a cognizable group, but I can see
good arguments for why she should be in a cognizable group. [¶] But based on what
I’ve seen here, I don’t feel that a prima facie case of group bias has been established in
this case or evidence sufficient to permit me to draw an inference that discrimination has
occurred in this case.” Asked about the possibility counsel might find case law showing
she was part of a cognizable group, the court stated it was assuming she was a member of
a cognizable group, and was making that finding. Accordingly, it denied the Batson-
Wheeler motion for failure to show a prima facie case.
2. M.R.
Prospective Juror M.R., a former school teacher, had been retired for about
15 years. She had prior jury service in both criminal and civil cases. She knew of no
close friends or relatives in law enforcement, did not know anyone involved in the case,
and saw nothing about the nature of the case or charges that would affect her ability to be
fair and impartial. She had no knowledge of any pretrial publicity or the facts of this
case. She heard all the questions asked of her fellow prospective jurors and the answers
given; they brought nothing to mind that she wanted to discuss.
When the prosecutor asked in what county M.R. had taught, M.R. responded it
was in Los Angeles County. When the prosecutor asked if she was “from L.A.,” M.R.
responded, “Am I married?” When the question was repeated, M.R. began her answer by
calling the prosecutor “Dear.” A short time later, the prosecutor asked what brought
M.R. and her husband to Kern County. M.R. answered, “Fourteen years.” She
subsequently echoed several of the prosecutor’s questions, suggesting she did not hear
them well.80 Asked if she knew anything about gangs in Kern County or elsewhere,
80 For example, when the prosecutor asked, “What does he [M.R.’s son] do for a
living?” M.R. answered, “What does he do?”
104.
M.R. related that she had read a little bit about them in the paper, but not so much that
she knew about them. She did not think she had developed an opinion about them.
When the prosecutor then said jurors could not consider penalty or punishment when
deliberating, M.R. responded that she could not hear the prosecutor. A short time later,
she said she was having “a terrible time” hearing the prosecutor. She found it “a little
better” when the prosecutor spoke in the microphone “up close.”
The prosecutor and counsel for Johnson passed for cause, as did counsel for Dixon
after further questioning. Counsel for Lee moved around to ascertain where M.R. could
best hear him. M.R. said she did not think it would interfere with her ability to hear
everything if an attorney were to walk from the witness box to the projector and point to
something being projected without wearing a microphone. M.R. promised that she would
raise her hand every time she did not hear a question or answer. She also related that she
had a hearing device, but did not have the batteries needed for it at that time. She
promised to get them over the weekend. Offered use of the court’s hearing-impaired
device or to have the court bring batteries, M.R. declined, stating she would bring her
own hearing aid.
Counsel for Lee passed for cause. The next challenge was with the People; the
prosecutor excused M.R. No objection was raised, nor was the Batson-Wheeler motion
renewed.
b. Analysis
“In order to make a prima facie showing, ‘a litigant must raise the issue in a timely
fashion, make as complete a record as feasible, [and] establish that the persons excluded
are members of a cognizable class.’[81] [Citation.] The high court [has] explained that ‘a
81 We have been unable to find any case directly holding that the physically disabled
are a cognizable class for Batson and/or Wheeler purposes. In United States v. Watson
(D.C. Cir. 2007) 483 F.3d 828, 829-835, a case dealing with visually impaired
prospective jurors, the federal court determined that disability was not to be accorded
105.
defendant satisfies the requirements of Batson’s first step by producing evidence
sufficient to permit the trial judge to draw an inference that discrimination has occurred.’
[Citation.] ‘An “inference” is generally understood to be a “conclusion reached by
considering other facts and deducing a logical consequence from them.”’ [Citation.]”
(People v. Gray (2005) 37 Cal.4th 168, 186; Johnson, supra, 545 U.S. at pp. 168-170 &
fn. 4; Batson, supra, 476 U.S. at p. 96.)
“Though proof of a prima facie case may be made from any information in the
record available to the trial court, [the California Supreme Court has] mentioned ‘certain
types of evidence that will be relevant for this purpose. Thus the party may show that his
opponent has struck most or all of the members of the identified group from the venire, or
has used a disproportionate number of his peremptories against the group. He may also
demonstrate that the jurors in question share only this one characteristic — their
membership in the group — and that in all other respects they are as heterogeneous as the
community as a whole. Next, the showing may be supplemented when appropriate by
such circumstances as the failure of his opponent to engage these same jurors in more
than desultory voir dire, or indeed to ask them any questions at all. Lastly, … the
defendant need not be a member of the excluded group in order to complain of a violation
of the representative cross-section rule; yet if he is, and especially if in addition his
alleged victim is a member of the group to which the majority of the remaining jurors
belong, these facts may also be called to the court’s attention.’ [Citations.]” (People v.
Bell, supra, 40 Cal.4th at p. 597.)
heightened scrutiny for equal protection analysis. In People v. Green (Cty. Ct. 1990) 561
N.Y.S.2d 130, 131, 132-133, a lower court found a peremptory challenge intended to
eliminate a prospective juror solely because she could not hear, to violate New York’s
state constitution. The soundness of Green’s analysis was questioned in Lawler v.
MacDuff (Ill.Ct.App. 2002) 779 N.E.2d 311, 320. We assume, for purposes of our
analysis, that the physically disabled are a cognizable class.
106.
“When the trial court concludes that a defendant has failed to make a prima facie
case, we review the voir dire of the challenged jurors to determine whether the totality of
the relevant facts supports an inference of discrimination. [Citations.]” (People v.
Lancaster (2007) 41 Cal.4th 50, 74.) We find no such inference here.
The information elicited during voir dire established ample disability-neutral
reasons for excusing H.D. (See People v. Bonilla, supra, 41 Cal.4th at p. 343.) For
instance, her lack of education made her a less-than-desirable juror for a complex case
such as this. She had brothers who were gang members and had been in and out of
prison, and she herself had a prior misdemeanor conviction. (See People v. Davis, supra,
46 Cal.4th at p. 584.) More importantly, a number of her answers were inappropriate,
and the prosecutor was not required to accept the explanation that H.D. was joking with
regard to her statements about defense counsel. In addition, the record supports the
prosecutor’s claim that H.D. was confused for reasons beyond her hearing impairment
when the sidebar conference was called, a claim the trial court was in the best position to
evaluate.82 In light of H.D.’s answers and behavior, we decline to equate the
prosecutor’s questioning her mental abilities, or peremptorily excusing her, with bias or
the stereotyping of people with disabilities.
Defendants say we should consider the prosecutor’s excusal of M.R. in
determining whether there was sufficient evidence to support an inference of
82 In order to make as full a record as possible in Batson-Wheeler proceedings, the
California Supreme Court has encouraged trial courts to solicit explanations for contested
peremptory challenges from prosecutors, even in the absence of a prima facie showing.
Although the prosecutor here was within her rights to decline to state her reasons unless
and until the court found a prima facie case, her voluntary decision to do so would not
have constituted an admission or concession that a prima facie case existed, and so would
not have converted a first-stage Batson-Wheeler case into a third-stage one. (People v.
Howard (2008) 42 Cal.4th 1000, 1020; People v. Zambrano (2007) 41 Cal.4th 1082,
1105, fn. 3, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22.)
107.
discriminatory intent. We decline to do so, because defendants did not renew their
motion following her excusal and so failed to preserve the issue for appeal. “[T]he trial
court’s finding is reviewed on the record as it stands at the time the Wheeler/Batson
ruling is made. If the defendant believes that subsequent events should be considered by
the trial court, a renewed objection is required to permit appellate consideration of these
subsequent developments.” (People v. Lenix (2008) 44 Cal.4th 602, 624; see also People
v. Hartsch (2010) 49 Cal.4th 472, 490, fn. 18; People v. Irvin (1996) 46 Cal.App.4th
1340, 1352.) Defendants claim any further objection would have been futile because it
would not have changed the trial court’s finding that people with disabilities are not a
cognizable group for Batson-Wheeler purposes. This assertion ignores the fact the trial
court, while expressing doubt that persons with physical disabilities constituted a
cognizable group, made an express finding that H.D. was indeed part of a cognizable
group but that no prima facie case had been shown. Under these circumstances, it would
hardly have been futile to renew a motion following the presentation of circumstances
defendants could have used as additional evidence in support of a prima facie showing.83
Were we to consider the prosecutor’s excusal of M.R., we would still find no
inference of discriminatory intent. “‘[E]ven the exclusion of a single prospective juror
may be the product of an improper group bias. As a practical matter, however, the
challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.’”
(People v. Bell, supra, 40 Cal.4th at p. 598.) Defendants say H.D. and M.R. were the
only remaining potential jurors with disabilities, but we do not know this to be true.
Moreover, we decline to take into account challenges for cause in determining whether
the prosecution removed all prospective jurors with disabilities from the panel, thereby
83 We do not find counsel ineffective for failing to renew the motion, because the
record does not affirmatively show counsel had no rational tactical purpose for the
omission. (People v. Jackson (1989) 49 Cal.3d 1170, 1202; see People v. Holt (1997) 15
Cal.4th 619, 657.)
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evidencing discriminatory intent, as defendants apparently would have us do: The
excusal of a prospective juror whose physical disabilities would interfere with jury
service simply does not raise an inference of discrimination, alone or in combination with
other circumstances. Similarly, the fact that a prospective juror was not subject to
exclusion for cause does not support an inference that the exercise of a peremptory
challenge against him or her was motivated by group bias. (People v. Cornwell (2005)
37 Cal.4th 50, 70, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th
at p. 421, fn. 22.)
Additionally, voir dire elicited disability-neutral reasons for excusing M.R. For
instance, any prosecutor might have been concerned about her not having developed any
opinion about gangs despite having lived in Los Angeles and Kern Counties. In addition,
questions remained about the extent of her hearing problem and its potential impact on
her abilities as a juror, since she neither got batteries for her own hearing aid despite
necessarily knowing she was coming to court for jury service, nor accepted the court’s
offer of the use of its device. Under the circumstances, the prosecutor was not required to
assume M.R. would be able adequately to hear everything, or that she would carry
through on her promise to raise her hand every time she could not.
The trial court did not err by finding no prima facie case of discrimination was
shown. Accordingly, having assumed for purposes of our analysis that the physically
disabled constitute a cognizable group for Batson-Wheeler purposes, we need not
determine whether that is indeed so.
2. Race
a. Background
Prospective Juror E.B. had been employed as a derrick hand on a drilling rig in the
oil fields for approximately three years. E.B. was single, had no prior jury service, and
had no close friends or relatives in law enforcement. Asked if there was any reason he
could not be fair and impartial, E.B. answered no, but, when the court noted he had
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paused, stated, “I just want to go back to work, pretty much.” E.B. explained that he
normally worked, and was paid for, a 12-hour tour, but this was decreased to eight hours
when he was on jury duty. Asked if he would be able to get by financially if he served on
the jury, he responded, “I don’t know. I got a lot of bills.”
The prosecutor questioned E.B. further about his financial situation and
ascertained that E.B. would be losing substantially more than a third of his paycheck if he
did not receive overtime pay for the extra four hours per tour. Asked if he could weather
that kind of pay cut if the trial went into January, E.B. answered, “I don’t know. I have to
see what my check is like Friday.” E.B. did not think he would be worrying about his
finances rather than giving his full attention to the case. He acknowledged, however, that
because his shift was four days on, four days off, there might be times when he would be
working two 12-hour days on the weekend.
E.B. was not familiar with MySpace or Facebook. He liked to watch sports on
television, and sometimes a show called “Wife Swap.” He did not really like to read, as
he read enough at work. Noting that E.B. appeared to be similar in age to defendants, the
prosecutor asked if he was concerned about any kind of sympathy he might have toward
them. E.B. responded that he did not have any sympathy. Asked about victims who
might be around his age, he said, “I don’t know them.”
The prosecutor then called E.B.’s attention to the prior discussion about the
standards used for evaluating witnesses, and asked if he had ever been in a situation at
work where he had to evaluate whether someone was telling him the truth. When
E.B. answered affirmatively, the prosecutor asked what sorts of situations. E.B.
answered, “Just make sure they did their job, because most of the time they lie to you
trying to just -- you have to go and check it.” E.B. explained that he was in charge of two
other people on the job. Asked what kind of responsibilities he would have in a situation
in which, for example, one of his employees was a couple of hours late and had obviously
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been drinking, E.B. said he would have no responsibilities, as he was just supposed to
make sure they did their job and to keep them busy.
The prosecutor then asked what type of responsibilities E.B. had if there were
problems with the people he supervised. This ensued:
“Q. Well, do you have any responsibilities for discipline, for
instance?
“A. If they talk too crazy or something to you crazy, just tell them to
meet you after work. [¶] … [¶]
“Q. Like to settle it in the parking lot kind of thing?
“A. Yeah. [¶] … [¶]
“Q. And what if someone that you’re supposed to tell them what to
do, what if they don’t do what they’re supposed to, what are you supposed
to do?
“A. Just cuss them out. Just let them know what’s up. They gotta
respect what your position is. If not, you just try to send them home.
“Q. Does that involve any paperwork? Do you have to fill out a --
you know, write some paper on them about some problem you have with
them?
“A. No, I don’t have to. Just keep yelling at them all day until you
make them quit.
“Q. Do you like that part of your job?
“A. Not really.”
E.B. subsequently confirmed that he believed he would be able to judge which
witnesses were telling the truth and which were lying. He was not familiar with the
state’s gang laws, did not pay attention to them, and did not watch or follow the news. It
did not cause him any concern when he heard there would be evidence in this case about
previous convictions; he did not think anything when he heard that. It did not bother him
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at all. The judge’s explanation of how that evidence would be evaluated and used
seemed fair.
When counsel for Dixon noted that E.B. spoke softly, E.B. responded that he was
nervous. He felt, however, that he would be able to express his opinions to the other
jurors during deliberations, as well as to listen to their opinions and change his if he
found they were right. He would also be able to hold on to his opinion if he felt he was
right.
Counsel for Lee questioned E.B. further about how he handled those he
supervised. This ensued:
“Q. And taking them down to the parking lot is a way to take them
apart and tell them what’s up. If they want to keep making that kind of
money they don’t really have a choice. They have to do what you want
them to do. Right?
“A. Yes.
“Q. Kind of like kicking them in the butt, so to speak. Kind of like
riding them during the day, like you said, right?
“A. Yes.
“Q. If you don’t want to do the job that’s up here, then maybe we
can find you some really dirty job and change your mind about being some
part of the team, that kind of thing?
“A. Yeah.
“Q. You didn’t mean you’d ask somebody to come out in the
parking lot so you could whoop them, right?
“A. Sometimes you have to do that. [¶] … [¶]
“Q. Who wins those things?
“A. You just don’t tell nobody.”
All counsel passed for cause. Later, however, the People peremptorily excused
E.B., prompting defendants to object to what they asserted was the systematic exclusion
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of African-Americans and minorities. Counsel for Johnson pointed to the excusal of J.C.,
an African-American male; C.A., a Hispanic-surnamed female; J.H., an African-
American male; and E.B., an African-American male. Counsel for Lee added that the
challenge to E.B. was the prosecutor’s 10th, and of the 10 challenged, three were
African-American. The court estimated that there were seven or eight African-American
prospective jurors, including one currently in the box (Juror No. 1336880). Counsel for
Lee argued that a comparison of the percentage of African-Americans in the venire with
the percentage of African-Americans stricken by the prosecution alone gave rise to at
least the inference required to show a prima facie case.
The prosecutor argued that no prima facie case had been shown, as the defense
had not met its burden of showing there was a discriminatory purpose in the excusing of
E.B. She noted that the People had excused people of all races from the jury, as had the
defense. Counsel for Johnson responded that of the prosecution’s 10 challenges, seven
had been exercised against minorities.
The court found the defense had established an inference that the persons named
by counsel for Johnson were challenged because of their group association of being
Hispanic or African-American, and it asked the prosecutor to explain the challenges.
When the prosecutor asked if she was to explain only with respect to E.B., the court
answered affirmatively, saying that was the challenge. The prosecutor then stated E.B.
was excused because the prosecution believed he was very young, had limited life
experience, was single, had no children, had no post-high school education, did not look
at the news and was unaware of the circumstances in the news with respect to the current
world, was uncomfortable and fidgeting while being questioned, mumbled, was very
nervous, was very immature in failing to check out the financial consequences to him of
jury duty, and most of all, solved workplace disputes in a completely inappropriate
manner. The prosecutor argued that violence in the workplace was inappropriate even in
the oil fields, and that E.B. was not ashamed of resorting to violence to resolve his
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disputes. The prosecutor also asserted that she felt E.B. was cavalier in some of his
answers about Dixon’s prior conviction, and she thought his style of dress — wearing a
black T-shirt with a large skull on the front in a murder case, and sagging pants — was
inappropriate and immature and showed a lack of respect for the system. The prosecutor
reiterated that this was a case involving people taking their disputes to the street in
retaliation, and E.B.’s manner of dealing with people at work showed him to have no
place on the jury. The prosecutor felt him to be a “very immature and mean” person.
Counsel for Lee argued that law enforcement and military academies used tactics
such as cursing and beating to instill discipline and prepare students for the dangers of the
job. He also argued that people dressed differently, and that clothing should not be the
hallmark of showing respect in the courtroom. Counsel also asked if the court saw
fidgeting. Counsel for Dixon argued that E.B. said he could sit on the jury financially,
and that this should be taken at face value. When counsel started to discuss the T-shirt,
the court stated it had not seen the garment and so would not rely on it. As for fidgeting,
counsel pointed out E.B. said he was nervous, and that other potential jurors were
nervous. Counsel also argued that E.B. was not as young as the prosecutors believed, but
rather was in his mid-20’s. Counsel further argued that just because E.B. could not
always be heard did not make him different from a number of other people. Counsel for
Johnson joined in the other defense comments, and argued E.B.’s body language did not
reflect an aggressive demeanor, and that E.B. was polite, attentive, and answered
appropriately. He further did not show aggression when interacting with other
prospective jurors.
The prosecutor responded that while he was talking to E.B., E.B. never stopped
moving from side to side in his seat. As for his financial situation, E.B. would not know
if there was a problem until he received his paycheck on Friday.84 The prosecutor argued
84 The motion was heard on Wednesday, December 3, 2008.
114.
that E.B. had bills to pay and responsibilities, yet had not taken the step of calling his
employer to find out what his paycheck would be, and that this was indicative of
immaturity. The prosecutor further pointed to E.B.’s manner of exercising his workplace
authority, specifically in terms of committing a crime and then covering it up.
After counsel for Lee responded, the court ruled:
“Find that the reasons given for the challenge exercised on [E.B.] are
group neutral. I find specifically that the prosecution was sincere in
offering their challenges based on demeanor of [E.B.] based upon his
young age, his immaturity, and indication of the type of way in which he
settles disputes or exercises control by the exercise of self-help mechanisms
in regards to co-employees on the drilling rig, his body language, his
movement in his seat in shifting of position. All I think are indicative,
especially the way in which he indicates he would discipline or handle
employees in the workplace.
“Maybe if this was in a restaurant or a bar setting or in a party
setting or in some social gathering, but the way in which he would handle
employees who were either under the influence or not performing to his
expectation indicate to me how a sincere … party such as the prosecution
could conclude that he is immature in the way in which he would exercise
discipline and control other co-employees. So the challenge is denied.”
b. Analysis
The trial court ruled for the defense in step one of the Batson-Wheeler analysis by
finding a prima facie case of discrimination with respect to African-Americans and
Hispanics.85 African-Americans are a cognizable group (People v. Alvarez, supra, 14
Cal.4th at p. 193), and we assume substantial evidence supports the court’s determination
(see People v. Silva (2001) 25 Cal.4th 345, 384; Alvarez, supra, at p. 197). Accordingly,
we move to step two.
85 Defendants do not claim the trial court erred by limiting the hearing to the
peremptory excusal of E.B. despite the broader finding with respect to a prima facie
showing. Accordingly, our analysis concerns only E.B.
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At step two, the prosecutor must come forward with a race-neutral explanation for
the challenged excusal. (People v. Silva, supra, 25 Cal.4th at p. 384.) “A neutral
explanation … means an explanation based on something other than the race of the juror.
At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race neutral.” (Hernandez v. New York (1991) 500 U.S. 352, 360
(plur. opn. of Kennedy, J.).) At this stage, the explanation need not be persuasive, or
even plausible. (Purkett v. Elem (1995) 514 U.S. 765, 767-768.) “‘The justification need
not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will
suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions,
gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]
Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a
legitimate reason is one that does not deny equal protection. [Citation.]” (People v.
Lenix, supra, 44 Cal.4th at p. 613, italics omitted.)
Whether the prosecutor has offered a race-neutral reason for his or her challenges
is a question of law subject to our independent review. (People v. Alvarez, supra, 14
Cal.4th at p. 198, fn. 9; Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692, 699.) As no
discriminatory intent was inherent in any of the prosecutor’s reasons, we conclude those
reasons were race neutral. (Hernandez v. New York, supra, 500 U.S. at p. 360 (plur. opn.
of Kennedy, J.).) Hence, the prosecution met its burden with respect to step two of the
Batson-Wheeler analysis.
Accordingly, we move to step three. At this stage of the analysis, the trial court
must decide whether the opponent of the peremptory strikes has proved purposeful racial
discrimination by a preponderance of the evidence. (Purkett v. Elem, supra, 514 U.S. at
p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) The persuasiveness of
the proffered justification now becomes relevant (Johnson, supra, 545 U.S. at p. 171), as
implausible or fantastic justifications will be found to be pretexts for purposeful
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discrimination (Purkett v. Elem, supra, 514 U.S. at p. 768). “What is required are
reasonably specific and neutral explanations that are related to the particular case being
tried.” (People v. Johnson (1989) 47 Cal.3d 1194, 1218.)
Once the prosecutor comes forward with such an explanation, the trial court must
then satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161,
167.) “In [this] process, the trial court must determine not only that a valid reason existed
but also that the reason actually prompted the prosecutor’s exercise of the particular
peremptory challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720.) “This demands
of the trial judge a sincere and reasoned attempt to evaluate the prosecutor’s explanation
in light of the circumstances of the case as then known, his knowledge of trial techniques,
and his observations of the manner in which the prosecutor has examined members of the
venire and has exercised challenges for cause or peremptorily, for ‘we rely on the good
judgment of the trial courts to distinguish bona fide reasons for such peremptories from
sham excuses belatedly contrived to avoid admitting acts of group discrimination.’
[Citation.]” (People v. Hall, supra, 35 Cal.3d at pp. 167-168; see also People v. Lomax
(2010) 49 Cal.4th 530, 570-571.) In undertaking this evaluation, the trial court need not
make affirmative inquiries, but must find the race-neutral explanations to be credible.
(People v. Hamilton (2009) 45 Cal.4th 863, 907.)
“When a trial court has made a sincere and reasoned effort to evaluate each of the
stated reasons for a challenge to a particular juror, we accord great deference to its ruling,
reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado
(2006) 38 Cal.4th 72, 104-105; accord, People v. Lenix, supra, 44 Cal.4th at p. 627; see
Batson, supra, 476 U.S. at p. 98, fn. 21; Paulino v. Harrison, supra, 542 F.3d at p. 699.)
Deference does not, of course, “imply abandonment or abdication of judicial review.”
(Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)
The record before us clearly establishes the trial court made a sincere and reasoned
effort to evaluate each of the prosecutors’ stated reasons for their peremptory challenge
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of E.B. Accordingly, application of the substantial evidence standard is appropriate.
Such evidence supports the trial court’s ruling; the court neither erred by accepting the
prosecutors’ explanations nor failed in its duty to examine those reasons for racial
discrimination.
The prosecutors’ nondemeanor-based reasons for excusing E.B. were both
inherently plausible and supported by the record. (See People v. Silva, supra, 25 Cal.4th
at p. 386.) Youth and a concomitant limited life experience are valid bases for excusal.
(People v. Gonzales (2008) 165 Cal.App.4th 620, 631; People v. Perez (1994) 29
Cal.App.4th 1313, 1328.) By parity of reasoning, so is immaturity. The prosecutors
were reasonably specific with respect to their concerns about E.B.’s workplace conduct,
and the willingness to engage in violence to enforce one’s authority on the job is
something that, in a prosecutor’s subjective and sincere estimation, may render the
prospective juror not the best type of individual to sit on the case being tried. (See
People v. Reynoso (2003) 31 Cal.4th 903, 924-925.)86
As for the demeanor-based explanations, particularly E.B.’s constant movement,
they are neither affirmatively contradicted by the record nor inherently improbable. (See
People v. Reynoso, supra, 31 Cal.4th at pp. 925-926; People v. Jordan (2006) 146
Cal.App.4th 232, 256.) In fact, E.B.’s movement was implicitly confirmed by the trial
86 Defendants say that even if not pretextual, E.B.’s conduct in resolving workplace
disputes was not rationally related to his ability to serve as a juror in this case, especially
where his conduct during voir dire was polite and appropriate, and he was unbiased and
stated he could listen to others during jury deliberations. We disagree. In our view, there
is a clear and rational relationship between the use of violence to resolve workplace
disputes or impose one’s authority and will in the workplace, and how one may act to
resolve disputes or impose one’s opinions in the jury room. Even if there need be no fear
the prospective juror would actually use violence in deliberations, the apparent inability
to use reasoning and persuasion to resolve disputes demonstrates an immaturity that is
rationally connected to his or her ability to serve. In addition, the present case involved a
form of “self-help” — gang members taking their disputes to the streets instead of
attempting to resolve them by other means.
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court. (Contrast Snyder v. Louisiana (2008) 552 U.S. 472, 479.) Generally speaking, a
prospective juror’s demeanor may properly be considered by a prosecutor in deciding
whether to exercise a peremptory challenge. (See, e.g., People v. Ward (2005) 36 Cal.4th
186, 202; People v. Turner (1994) 8 Cal.4th 137, 170-171, disapproved on another
ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Cummings (1993)
4 Cal.4th 1233, 1282.) The trial court here was in the best position to observe E.B., and
its acceptance of the prosecutors’ reasons is entitled to great deference. (People v.
Stanley (2006) 39 Cal.4th 913, 939.) Under the circumstances, the fact defense counsel
did not observe something, or interpreted it differently than the prosecutors, does not call
into question the credibility of the prosecutors’ stated reason. (People v. Jordan, supra,
146 Cal.App.4th at p. 255.) Moreover, the trial court was in the best position to observe
the prosecutors’ demeanors, and the manner in which they exercised their peremptory
challenges, in assessing the prosecutors’ credibility. (People v. Stanley, supra, 39 Cal.4th
at p. 939; see People v. Lomax, supra, 49 Cal.4th at pp. 570-571.)
Relying on Miller-El v. Dretke (2005) 545 U.S. 231, defendants put forth several
arguments in support of their assertion the prosecutors’ reasons for excusing E.B. were
pretexts for excusing him because he was African-American. First, defendants point out
that seven of the prosecution’s first 10 challenges were used against minorities, three of
whom were African-Americans. Three out of four African-Americans in the jury box
were excused peremptorily by the prosecution. Thus, defendants say, a great percentage
of African-Americans were removed by the prosecution, a fact that supports a strong
inference of purposeful discrimination on the basis of race. (See id. at pp. 240-241.)
Statistics cannot be considered in a vacuum. Here, although defendants were
themselves African-American, so too were most of their victims. Thus, this is not a case
in which the defendants were members of the excluded group, while their alleged victims
were members of the group to which the majority of the jurors belonged. (See People v.
Cleveland, supra, 32 Cal.4th at pp. 733-734.) In addition, at least one trial juror, Juror
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No. 1336880, was African-American. “‘While the fact that the jury included members of
a group allegedly discriminated against is not conclusive, it is an indication of good faith
in exercising peremptories, and an appropriate factor for the trial judge to consider in
ruling on a Wheeler objection.’ [Citation.]” (People v. Ward, supra, 36 Cal.4th at
p. 203; accord, People v. Lewis, supra, 43 Cal.4th at p. 480.)
In addition, the circumstances surrounding the excusals of the other two African-
American prospective jurors cannot be ignored. J.H. had a son serving life in prison for
what J.H. believed was a gang-related murder. He had served on two juries before and
felt he never knew when a lawyer was giving him all the facts or telling the truth. Asked
by the prosecutor if, were he in her position, he would think it good to have 12 jurors
with his state of mind, J.H. stated he could not be in her position and could not put
himself in her position. When the prosecutor questioned J.H. further about his prior jury
experience, this ensued:
“Q. Now, is there anything about that experience that would cause
you to --
“A. Absolutely not.
“Q. Are you feeling irritated with me right now?
“A. Absolutely not.
“Q. Are you sure? Because it’s time to be honest.
“A. Why do you ask me the same question over and over? If I lied
the first time, I’m going to lie the second time. I told you the truth the first
time. I’m going to do it again.
“[PROSECUTOR]: Your Honor, at this time I think I need to
challenge for cause.
“[J.H.]: Good.”
Following voir dire by defense counsel, the trial court denied the prosecutors’
challenge for cause. The next peremptory challenge was the People’s, and the prosecutor
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used it to excuse J.H. During the hearing on the Batson-Wheeler motion, the trial court
observed that J.H. and been “a little short” with the prosecutor.
The other African-American prospective juror who was peremptorily excused by
the People was J.C. In pertinent part, J.C. stated that, although he knew jurors were not
supposed to consider penalty or punishment, if he were a juror and were to return a guilty
verdict, it would be “kind of like morally hard” on him. He noted that defendants looked
to be about his age, and the jury’s decision “could potentially determine the rest of their
lives .…” Although J.C. felt he could listen to the evidence, keep an open mind, and
reach a fair and just verdict based on the evidence and the law, he admitted he was having
a hard time not putting himself in defendants’ position. Although he would try putting it
out of his mind, he felt it would be hard to not think, during deliberations, about what
would happen to defendants if convicted.
The prosecutor challenged for cause, but, as J.C. said he believed he could find
defendants guilty if the prosecution met its burden of proof and that he would follow the
law as the court instructed, the trial court denied the challenge. The prosecution then
accepted the panel containing J.C. (and Juror No. 1336880) four times. Only after using
its next two peremptory challenges against other prospective jurors, and having
defendants exercise various peremptory challenges, did the People excuse J.C. During
the hearing on the Batson-Wheeler motion, counsel for Lee represented that the defense
did not make such a motion with respect to J.C. because J.C. indicated he felt sympathy
toward defendants based on their ages.
In light of the foregoing, the bare statistics are misleading in this case, and do not
support an inference of purposeful discrimination based on race. Defendants say,
however, that the prosecution used a different script for questioning E.B. than it did for
other prospective jurors and included a trick question designed to elicit cause to strike an
African-American male and not discover how he would function as a juror, and that these
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circumstances were a strong indication of racial bias in questioning. (See Miller-El v.
Dretke, supra, 545 U.S. at pp. 255-262.)
Defendants point to the prosecutor asking E.B. if he had ever had to evaluate
someone’s credibility at work and then, rather than questioning E.B. about the process he
might use in that regard, instead asking how E.B. would handle a hypothetical situation.
When an objection to the question was sustained, the prosecutor asked what type of
responsibilities E.B. had if there were problems with the people he was responsible for
supervising, and if he was responsible for discipline. In light of E.B.’s previous answers
concerning such things as his finances, youth, and lack of education beyond high school,
and his demeanor, we find no trickery. Rather, the question was designed to probe E.B.’s
maturity and ability to work with other people, both of which were related to how he
would function as a juror. The record does not support an inference the prosecutor
anticipated E.B. would answer by admitting to the use of violence or in a way that would
generate cause to strike a young African-American male. (Compare Miller-El v. Dretke,
supra, 545 U.S. at pp. 261-262.)
As for allegedly disparate questioning, defendants point to the questions asked a
number of non-African-American jurors and prospective jurors. However, the majority
of these jurors were examined after denial of the Batson-Wheeler motion. Since we
review the trial court’s finding on the record as it stood at the time the Batson-Wheeler
ruling was made (People v. Lenix, supra, 44 Cal.4th at p. 624), we question defendants’
inclusion of jurors and prospective jurors who had not been the subject of voir dire at the
time the trial court denied the Batson-Wheeler motion. Nevertheless, we include them in
our analysis and accept defendants’ representation that those jurors and nonjurors were in
fact not African-American.
Defendants first point to Juror No. 1314332, who worked in the oil fields as a
compressor operator for a major oil company. When the prosecutor ascertained the juror
was the only one at the plant, this took place:
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“Q. You would not advocate violence out there in the oil fields,
would you?
“A. No.
“Q. You would agree that that’s not the right thing to do.
“A. No, it’s not.”
Defendants say this was clearly a reference to E.B. and not a sincere question
going to Juror No. 1314332’s suitability as a juror. While clearly engendered by E.B.’s
responses, we find the questions proper, especially in light of the argument of Lee’s
attorney at the time of the Batson-Wheeler motion concerning the training techniques
used by law enforcement and military academies.
The prosecutor asked prospective alternate juror B.R., a supervisor for an oil
company, if he had a “basic management philosophy” for dealing with problems with
employees. B.R. replied, “Get rid of them.” Asked if he considered himself a tough
boss, B.R. stated, “Well, I think that we are only accountable to each other for ourselves.”
Defendants say this answer puts E.B.’s response into perspective. Indeed: It
demonstrates that, while the oil fields may not be a workplace environment for sensitive
people, neither is it necessary or common to resort to violence in order to deal with
problem employees.
Defendants say the prosecution did not ask similar questions about workplace
conflict or discipline of G.H., Juror No. 1222064, B.M., Juror No. 1355968, M.B., or
G.F., all of whom were non-African-Americans with similar jobs. However, the record
supports the People’s response on appeal, namely that the prosecution’s questions were
tailored to address potential concerns for each prospective juror in light of that
individual’s previous answers. For instance, the prosecutor questioned G.H. at length
about how he would determine credibility, especially since he was a friend of one of the
law enforcement witnesses in this case. G.H. ultimately was excused pursuant to a
defense challenge for cause. The record also shows striking dissimilarities between E.B.
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and the individuals identified by defendants. For example, Juror No. 1222064 had not
worked in the oil fields in at least 12 years and, being retired, was clearly considerably
older than E.B. Similarly, B.M. had not worked in the oil business for 16 years. Juror
No. 1355968 was several jobs removed from contact with the oil fields, and even then
sold oil field equipment as opposed to working in the oil fields per se. M.B. was not a
supervisor, but rather worked in a job in which he had someone telling him what to do.
Prospective alternate juror G.F. was a lease operator who helped maintain production for
several hundred oil wells. Having lived in Kern County for 55 years, he was
considerably older than E.B., and the prosecutor ascertained that he did not supervise
people, but rather worked together with three other people, with G.F. usually being in the
office and the other three being out in the field. In light of the foregoing, the record does
not support defendants’ claim that the disparate questioning was a strong indication of
racial bias.
Defendants also say the prosecution did not ask questions about employee conflict
resolution or discipline during voir dire of similarly situated non-African-American
prospective jurors S.F., K.M., L.D., and T.C. However, S.F.’s employees were in sales
and marketing. K.M. had been employed for at least 31 years and had adult children. He
was clearly significantly older than E.B. L.D. did not work in the oil fields, was
significantly older than E.B., and was questioned by counsel for Johnson about making
credibility determinations. Similarly, T.C. did not work in the oil fields and, with a 16-
year-old son, was at least somewhat older than E.B. Given these differences, we again
find no indication of racial bias in questioning.
Last, defendants say the record reflects some sworn jurors shared characteristics
with E.B. that the prosecution listed as reasons for dismissing him. (See Miller-El v.
Dretke, supra, 545 U.S. at pp. 241-248.) We recognize that “[i]f a prosecutor’s proffered
reason for striking a black panelist applies just as well to an otherwise-similar nonblack
who is permitted to serve, that is evidence tending to prove purposeful discrimination to
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be considered at Batson’s third step. [Citation.]” (Id. at p. 241, italics added.)
Accordingly, we have undertaken the requisite comparative analysis (see People v. Lenix,
supra, 44 Cal.4th at pp. 607, 621-622), keeping in mind that “[t]wo panelists might give a
similar answer on a given point. Yet the risk posed by one panelist might be offset by
other answers, behavior, attitudes or experiences that make one juror, on balance, more or
less desirable. These realities, and the complexity of human nature, make a formulaic
comparison of isolated responses an exceptionally poor medium to overturn a trial court’s
factual finding.” (Id. at p. 624.)
“Viewing such comparative evidence in light of the totality of evidence relevant
on the claim, we conclude it does not demonstrate purposeful discrimination.” (People v.
Cruz (2008) 44 Cal.4th 636, 659.) Like E.B., Juror Nos. 1181469, 1227832, 1228043,
and 1355968 were single and/or had no children. However, Juror No. 1181469 was an
accountant who was older than E.B., having lived in Kern County for 35 years. The juror
had prior jury experience and read books or magazines that helped him with his job.
Juror No. 1227832 was considerably older than E.B., having retired in 1989 after
27 years in the Air Force. During that career, he was stationed all over the United States,
Europe, and Asia. He supervised numerous people during his career, and part of his
duties involved disciplinary actions. When he had to deal with someone he perceived
had a problem, the commander, not the juror, usually had the last word concerning what
would happen. Most of the time, the commander accepted the juror’s recommendation.
The juror had a lot of responsibility in evaluating the soldiers and figuring out the
appropriate thing to do, based on talking to them and other witnesses. Juror No. 1228043
was a public health nurse with prior jury experience. She sat on various boards. An
inference can be drawn that she was considerably older than E.B., since she had nieces in
their 30’s and had been a nurse for about 30 years. She tried to follow the news. Juror
No. 1355968 had prior jury experience. Given her lengthy employment history and the
fact she had a 36-year-old child, it is apparent she was significantly older than E.B.
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Juror Nos. 1286800, 1343211, 1477749, and 1336880 all stated that a prior
conviction would not have an impact on how they viewed the murder case, though they
do not appear to have said so in the same manner as E.B. That there may have been
“‘isolated and discrete similarities’” between their views on the subject and that of E.B.
does not, however, make them similarly situated for purposes of comparative analysis.
(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1019, fn. 15.) Defendants fail to
point to any other similarity between these jurors and E.B. in any respect contributing to
the prosecutors’ challenge. “The circumstance that the … jurors made a single comment
having similarity does not establish that the prosecutor[s’] reasons were pretextual or that
defendant[s] established purposeful discrimination under the facts of the present case.”
(People v. Schmeck (2005) 37 Cal.4th 240, 271, disapproved on another ground in People
v. McKinnon (2011) 52 Cal.4th 610, 637-638.)
“Advocates do not evaluate panelists based on a single answer. Likewise,
reviewing courts should not do so.” (People v. Lenix, supra, 44 Cal.4th at p. 631, fn.
omitted.) The seated jurors identified by defendants simply do not “demonstrate such a
striking similarity” to E.B. in any meaningful way that a finding of pretext is warranted.
(People v. Stevens (2007) 41 Cal.4th 182, 196.)
Our review of the record as a whole demonstrates that substantial evidence
supports the trial court’s conclusion the prosecutors’ peremptory excusal of E.B. was not
motivated by discriminatory intent. (See People v. Cruz, supra, 44 Cal.4th at p. 661.)
The Batson-Wheeler motion was properly denied.87
87 Even if we were to find that some part of the prosecutors’ assessment was not well
supported by the record, we would not conclude the trial court erred by not finding the
excusal was motivated by E.B.’s race. The primary reason the trial court accepted for
E.B.’s excusal — his manner of handling employees in the workplace — was amply
supported by the record. (See People v. Taylor (2009) 47 Cal.4th 850, 896.)
126.
II
TRIAL ISSUES
A. Evidentiary Rulings and Related Claims
Defendants make numerous claims of error concerning the trial court’s evidentiary
rulings and related matters. Because many of the issues involve determinations of
relevance and/or probative value versus prejudicial effect, we first state the general legal
principles concerning those subjects before turning to defendants’ specific contentions.
We also state the law applicable to ineffective assistance of counsel, since defendants
raise such claims in the event we find forfeiture of any substantive issue.
“‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) “‘While there is no universal test of relevancy, the general rule in
criminal cases might be stated as whether or not the evidence tends logically, naturally,
and by reasonable inference to establish any fact material for the prosecution or to
overcome any material matter sought to be proved by the defense. [Citation.] Evidence
is relevant when no matter how weak it may be, it tends to prove the issue before the
jury.’ [Citation.]” (People v. Freeman (1994) 8 Cal.4th 450, 491.)
While all relevant evidence is admissible except as otherwise provided by statute
(Evid. Code, § 351), “[n]o evidence is admissible except relevant evidence” (id., § 350).
We review for abuse of discretion a trial court’s rulings on relevance. (People v. Cole
(2004) 33 Cal.4th 1158, 1195.) That court is vested with wide discretion in determining
relevance, but has no discretion to admit irrelevant evidence. (People v. Alexander
(2010) 49 Cal.4th 846, 904.) “[D]iscretion is abused whenever the court exceeds the
bounds of reason, all of the circumstances being considered. [Citations.]” (People v.
Giminez (1975) 14 Cal.3d 68, 72.)
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“Under Evidence Code section 352, the probative value of the proffered evidence
must not be substantially outweighed by the probability that its admission would create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
[Citations.]” (People v. Cole, supra, 33 Cal.4th at p. 1195.) “‘The prejudice which
exclusion of evidence under Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant, highly probative
evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of
“prejudging” a person or cause on the basis of extraneous factors.’” (People v. Zapien
(1993) 4 Cal.4th 929, 958.) “Evidence is substantially more prejudicial than probative
[citation] if, broadly stated, it poses an intolerable ‘risk to the fairness of the proceedings
or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690,
724.)
“[T]he trial court enjoys broad discretion in assessing whether the probative value
of particular evidence is outweighed by concerns of undue prejudice, confusion or
consumption of time. [Citation.] Where, as here, a discretionary power is statutorily
vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal
except on a showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’
[Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
Finally, the burden of proving ineffective assistance of counsel is on the
defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a
conviction upon the ground of ineffective assistance of counsel under either the state or
federal Constitution, a defendant must establish (1) that defense counsel’s performance
fell below an objective standard of reasonableness, i.e., that counsel’s performance did
not meet the standard to be expected of a reasonably competent attorney, and (2) that
there is a reasonable probability that defendant would have obtained a more favorable
result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984)
466 U.S. 668, 687-694.)
1. Dixon’s Prior Bad Acts
Dixon contends the trial court committed federal constitutional error by admitting,
for any purpose but especially on the issue of identity, evidence of two shootings in
which he allegedly was involved in 2001. Lee joins in the argument. Lee acknowledges
the evidence was limited to Dixon, but says the limiting instructions given were not
effective. The People respond that the evidence was properly admitted for the purposes
specified by the trial court, but assuming otherwise, any error was harmless because
Dixon’s prior acts were properly before the jury on another issue.
a. Background
Dixon and the prosecution filed dueling motions in limine with respect to Dixon’s
prior bad acts. Dixon sought exclusion of any mention of his September 11, 2001,
voluntary manslaughter conviction, and to bifurcate trial on the prior conviction
enhancement allegations. Johnson and Lee joined in the motion. The People sought
admission of Dixon’s prior acts — the March 7, 2001, assault by shooting at several
individuals; and the April 8, 2001, voluntary manslaughter of Joseph Williams —
pursuant to Evidence Code section 1101, subdivision (b). The People maintained these
prior acts were relevant to prove motive, intent, common design, scheme, plan, and/or
identity, and had substantial probative value for purposes of Evidence Code section 352.
After argument, an Evidence Code section 402 hearing was held at which Senior
Officer Sherman testified. Sherman related that he had reviewed the police and probation
reports with respect to the March 7 and April 8, 2001, shootings. On March 7, 2001, two
African-American males, wearing dark clothing, were walking south on Kincaid Street,
which was in Eastside Crip territory. After they passed a specific house, they turned
around, walked back toward that address, produced firearms, and shot at several people in
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the front yard and porch area of the residence. They then fled. A witness observed that
one was limping; from his mannerisms, she recognized him as Dixon, whom she knew to
be a Country Boy Crip.
Sherman found it significant, in formulating his expert opinions, particularly on
motive and intent, that Dixon was a rival gang member who attempted to shoot other
gang members in another gang’s territory. In addition, it was a walk-up shooting.
On April 8, 2001, Joseph “Freeway” Williams, an Eastside Crip affiliate, was
attending a birthday party in the 1900 block of Lotus. Dixon was also at the party.
Williams went to his car to obtain some CD’s and take some pictures. Dixon, wearing a
powder blue sweatshirt with the hood pulled up and tied around his face to hide his facial
features, walked up, produced a firearm from underneath the sweatshirt, and shot
Williams multiple times at close range, killing him. Dixon then fled to a nearby
residence. When he was contacted there later, he was wearing different clothing. Nine-
millimeter shell casings found at the scene matched the shell casings found at the earlier
scene on Kincaid. Dixon was arrested, entered into a plea bargain for voluntary
manslaughter, was sentenced to 11 years in prison, and served six.88
Sherman considered it significant to his opinions that it was a walk-up shooting,
and that Dixon concealed his facial features with a sweatshirt, and that he used a firearm.
In essence, Sherman found this to be a signature crime. The shooting was motivated by
hatred of a rival gang.
With respect to motive, intent, and common scheme or plan, Sherman found the
2001 shootings significant with respect to the opinions he would be giving relative to the
gang information and the present charges. He particularly noted the style in which the
88 The prosecutor represented that charges concerning the March 7, 2001, incident
were dropped as part of the plea agreement.
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offenses were committed and the fact rival gang members were targeted. The locations
were also significant in terms of whether disrespect was being shown.
Sherman conceded that no one positively identified Dixon, and neither Lee nor
Johnson was identified as a suspect, in either shooting. Sherman also testified that walk-
up shootings now outweighed drive-up shootings in terms of which was the more
commonly seen type of gang-related shooting. Walk-ups were now the method of
choice, with gang members being told to do walk-ups so as not to inflame people with
innocent bystanders being struck. In Sherman’s experience, shootings involving African-
American gangs were either walk-ups or drive-bys. Sherman also found it not
uncommon, in his evaluation of gang-related shootings, to have identity concealed by
means of a hoodie or ball cap or do-rag.
Counsel for Dixon subsequently argued for exclusion on the grounds that Dixon
was 17 years old at the time of the 2001 shootings, he was never identified with respect to
those shootings although he pled, and approximately six years separated those shootings
from the current charges. In addition, counsel claimed trial would be prolonged by
several weeks because, if the 2001 shootings were admitted, he would have to try those
cases as well as the current one. Counsel pointed out that, if the evidence were excluded,
Sherman could still testify Dixon was a gang member based on his tattoos, and could also
testify Dixon had a felony conviction, without mentioning it was for manslaughter.
Counsel for Lee argued that, given Sherman’s testimony about the number of
walk-up shootings outweighing the number of drive-by shootings, and the fact it was
common for people involved in shootings to conceal their identities, the evidence should
not be admissible on the issue of identity. Counsel further argued the evidence was
unduly prejudicial to Lee, especially in light of the disparity in gang-related evidence
among defendants, and that an admonition would not be sufficient to prevent a spillover
effect. Counsel also argued that allowing the evidence would create an additional
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consumption of time. Counsel for Johnson joined in these comments, and argued that
introduction of the evidence would affect Johnson’s ability to have a fair trial.
The People responded by noting that the court had to separately analyze whether
the evidence could come in under Evidence Code section 1101, subdivision (b), and
whether Sherman could testify about the 2001 incidents as they related to his gang
opinions. The prosecutor argued the 2001 incidents were material, relevant, more
probative than prejudicial, and not merely cumulative.
After further argument, the court turned to whether the proffered evidence should
be admitted, under Evidence Code section 1101, subdivision (b), as to Dixon. The court
found the prior incidents material on the issues of intent, motive, identity, knowledge,
common plan, and modus operandi, and relevant to prove motive, intent, common plan,
design, or scheme, and identity.
Turning to the Evidence Code section 352 analysis, the court found relevance
because the prior walk-up shootings were characteristic for gang purposes, and, the court
stated, “also it’s relevant because it shows someone who was willing to commit violent
crimes or murder because of a dislike of a person from a different gang, or people that
occupy residences in the defendant’s non gang territory, rival’s territory, if you will.”
The court found the probative value increased because evidence of the prior incidents had
a source independent from evidence of the charged offenses, and it further found no
remoteness. The court reasoned the jury would learn of Dixon’s gang affiliation
independent of evidence of the prior shootings, and found the evidence of the uncharged
acts no stronger or more inflammatory than the current charges. Accordingly, it found
substantial probative value that outweighed any prejudicial effect. The court stated this
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finding was based, in part, on the fact the limiting instructions could guide the jury
concerning against whom they were to consider the evidence.89
During trial, the prosecution called a number of witnesses concerning the 2001
shootings. The first was Otha Ford, who was with Joseph Williams when Williams was
shot on April 8, 2001. Partway through direct examination, counsel for Lee and Johnson
both raised relevance objections with respect to their clients. After asking the date of the
shooting and being told it occurred in 2001, the trial court overruled the objections.
When the prosecutor asked his next question, counsel for Lee again objected on relevance
grounds. The court asked the prosecutor to clarify the relevance to the individual
defendant, whereupon the prosecutor reminded the court of the earlier motions, and that
this evidence concerned Dixon’s prior offenses. The court then sustained the objection.
When Lee’s counsel asked for a limiting instruction or explanation to the jury, the court
asked the prosecutor, “This is evidence that you’re saying only goes and applies to Mr.
Dixon only, correct?” When the prosecutor confirmed that was correct, the court told the
jury: “That will be the order of the Court. [¶] My understanding, ladies and gentlemen,
is this evidence is only offered, as I understand it, by the prosecution in regard to
Defendant Mr. Dixon only.”
The next witness concerning the 2001 shootings was Byron Allen. At the outset
of his testimony, Lee’s attorney asked for, and received, an admonition that jurors could
only consider the testimony as to Dixon.
The following day, a stipulation between the People and Dixon was read to the
jury. In it, they agreed that on August 13, 2001, Dixon pled no contest to the voluntary
manslaughter of Joseph Williams. The parties further stipulated that the no contest plea
was properly deemed to be a guilty plea under the law, Dixon was sentenced to prison,
89 As a result of the court’s ruling, counsel for Dixon withdrew his request for
bifurcation of the prior conviction allegations.
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his sentence was for six years, and he was discharged from prison on or about March 4,
2007. The court informed the jury that the facts contained in the stipulation must be
accepted as conclusively proven, and that the stipulation had to do only with Dixon and
not the other two defendants.
The prosecutor then called Bakersfield Police Officer Grove, whose testimony
pertained to the Williams shooting. At the outset of his testimony, counsel for Lee
objected on relevance grounds, and the court confirmed with the prosecutor that the
evidence was being offered only against Dixon.
During a subsequent discussion of whether counsel for Dixon could present
evidence that Dixon was not involved in the prior shootings despite the no contest plea,
counsel for Lee reiterated his objection to admission of the other crimes evidence.
Counsel noted the court itself was momentarily confused concerning what shooting was
being discussed, and he expressed concern about spillover prejudice once the People
established that Lee had been friends with Dixon for some time. Counsel reiterated that
there were insufficient similarities between the prior acts and present offenses so as to
prove identity in the present case, and that the People did not need the prior acts evidence
to establish motive. Counsel for Johnson joined in the comments. The prosecutor
responded in part that the evidence was going to come in anyway, because it went to the
gang issue, which in turn related to the entire case. After further argument, the court
determined that if another cautionary instruction was given that limited the evidence to
Dixon, then the probative value would outweigh any prejudicial impact. Accordingly,
the court directed the prosecutor to inform the court, when a witness was called, if the
testimony was being offered solely against Dixon, at which point the court would
admonish the jury accordingly.
The prosecution’s next witness concerning the events of 2001 was Officer
Carruesco. At the outset of his testimony, the prosecutor informed the court that the
testimony was being offered only as to Dixon. The court told the jury: “And ladies and
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gentlemen, we gave you an earlier instruction that during the trial oftentimes evidence
comes in for a limited purpose, and this is one of those occasions, and we ask you to
follow that jury instruction that we have read to you and we will read again at the end of
the case.” The jury was reminded, in conjunction with the testimony of the prosecution’s
next two witnesses to the 2001 events, that the evidence was limited to Dixon.
The People then called Sergeant Jehle to testify as a gang expert with respect to
the 2001 shootings.90 In part, Jehle described police contacts with, arrests of, and
incidents involving Dixon that took place between 1998 and April 9, 2001. Midway
through Jehle’s testimony, counsel for Lee objected to a photograph on relevance and
Evidence Code section 352 grounds with respect to Lee. Counsel for Johnson joined.
When the court asked the prosecutor whether the evidence was coming in solely in regard
to Dixon, the prosecutor responded, “This photograph is, yes, your Honor.” The court
then admonished the jury accordingly, whereupon counsel for Lee clarified that Jehle’s
testimony was also for that purpose. The court confirmed that understanding with the
prosecutor.
Jehle ultimately opined that on April 8, 2001, Williams was an active member of
the Eastside Crips criminal street gang, and that in March and April 2001, Dixon was an
active member of the Country Boy Crips criminal street gang. By means of hypothetical
questions, Jehle further opined that the March and April 2001 shootings were committed
for the benefit of, at the direction of, or in association with the Country Boy Crips
criminal street gang. At the behest of Lee’s attorney, the court clarified that the
hypotheticals related solely to Dixon.
90 Much of Jehle’s testimony concerning the history of the Eastside and Country Boy
Crips and gangs in general was repeated by Senior Officer Sherman when he testified as
a gang expert concerning the charged offenses.
135.
The prosecutor called Supervising Criminalist Gregory Laskowski to testify with
respect both to evidence collected in conjunction with the current charges, and also with
respect to evidence collected in conjunction with the 2001 shootings. The prosecutor
clarified which evidence related only to Dixon.
Laskowski was the final witness called by the prosecution with respect to the 2001
shootings. The subject was briefly broached by various parties during the examination of
Dupree Jackson. As previously described, Sherman discussed the shootings in
conjunction with his gang testimony, and Dixon took the stand and denied involvement in
the shootings.
During summation, the prosecutor argued to the jury that the way the Williams
killing was committed was very similar to the McNew Court shootings, in that both were
gang motivated, both were walk-up shootings, both took place in gang territory, the
victims in both were in the front yard, the shooter in both was wearing a hooded
sweatshirt, the shooter in both shot the victims several times at point-blank range, the
intended victims in both were Stroller Boy Eastside Crips, the shooter in both ran back
the way he had come after the shootings, and there was a clothing change as part of the
scheme in both.91 The prosecutor argued the prior acts could be used to determine
Dixon’s identity, intent, motive, and common plan and scheme with respect to the
McNew Court shootings, but warned that the evidence could not be used to show Dixon
was a bad person or the type likely to commit crimes. The prosecutor also discussed the
relevance of the prior crimes to the gang issues and the prior conviction allegations.
Dixon’s attorney countered that the shootings were six years apart, there are a lot of
walk-up shootings and shootings that involve the wearing of a hoodie, and there were
differences between the crimes.
91 Insofar as the Williams shooting is concerned, this appears to be a reference to the
fact that, when contacted shortly afterward, Dixon was not wearing a hooded sweatshirt.
136.
In pertinent part, the trial court instructed the jury, pursuant to CALCRIM
No. 303: “During the trial certain evidence was admitted for a limited purpose. You may
consider that evidence only for that purpose and for no other. [¶] I instructed you during
the trial that certain evidence was admitted only against certain defendants. You must
not consider that evidence against any other defendant.” Specifically with respect to the
evidence admitted pursuant to Evidence Code section 1101, subdivision (b), jurors were
told, pursuant to CALCRIM No. 375:
“The People presented evidence that the defendant Mr. Joseph Kevin
Dixon allegedly committed the offenses of voluntary manslaughter and/or
shooting at an inhabited dwelling house, both of which are alleged to have
occurred in 2001 that were not charged in this case. You may consider this
evidence only if the People have proved by a preponderance of the
evidence that the defendant, in fact, committed the uncharged offenses.
Proof by a preponderance of evidence is a different burden of proof than
proof beyond a reasonable doubt.
“A fact is proved by a preponderance of evidence if you conclude
that it is more likely than not that the fact is true. If the People have not
met this burden, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged offenses
you may, but are not required to, consider that evidence for the limited
purpose of deciding whether or not the defendant was the person who
committed the offenses alleged in this case or the defendant acted with the
intent to kill or the defendant had a motive to commit the offenses alleged
in this case or the defendant had a plan or scheme to commit the offenses
alleged in this case.
“In evaluating this evidence, consider the similarity or lack of
similarity between the uncharged offenses and the charged offenses. Do
not consider this evidence for any other purpose other than the credibility of
defendant Mr. Joseph Dixon. Do not conclude from this evidence that the
defendant has a bad character or is disposed to commit crime.
“If you conclude that said defendant committed the uncharged
offenses, that conclusion is only one factor to consider along with all of the
other evidence. It is not sufficient by itself to prove that the defendant is
guilty of the crimes charged or that the enhancements or allegations have
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been proved. The People must still prove each charge, enhancement, and
allegation beyond a reasonable doubt.”
b. Analysis
Evidence Code section 1101 provides, in pertinent part:
“(a) Except as provided [in statutes not involved here], evidence of a
person’s character or a trait of his or her character (whether in the form of
an opinion, evidence of reputation, or evidence of specific instances of his
or her conduct) is inadmissible when offered to prove his or her conduct on
a specified occasion.
“(b) Nothing in this section prohibits the admission of evidence that
a person committed a crime, … when relevant to prove some fact (such as
motive, … intent, … plan, … [or] identity …) other than his or her
disposition to commit such an act.”
“Evidence of uncharged crimes is admissible to prove identity, common design or
plan, or intent only if the charged and uncharged crimes are sufficiently similar to support
a rational inference of identity, common design or plan, or intent. [Citation.] On appeal,
the trial court’s determination of this issue, being essentially a determination of
relevance, is reviewed for abuse of discretion. [Citations.]” (People v. Kipp (1998) 18
Cal.4th 349, 369.)
“‘The admissibility of other crimes evidence depends on (1) the materiality of the
facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts,
and (3) the existence of any rule or policy requiring exclusion of the evidence.’
[Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 22.) “‘Because substantial
prejudice is inherent in the case of uncharged offenses, such evidence is admissible only
if it has substantial probative value.’ [Citation.]” (Id. at p. 23.)
“When the prosecution seeks to prove the defendant’s identity as the perpetrator of
the charged offense with evidence he had committed uncharged offenses, the
admissibility of evidence of the uncharged offenses turns on proof that the charged and
uncharged offenses share sufficient distinctive common features to raise an inference of
identity.” (People v. Lindberg, supra, 45 Cal.4th at p. 23.) “The greatest degree of
138.
similarity is required for evidence of uncharged misconduct to be relevant to prove
identity. For identity to be established, the uncharged misconduct and the charged
offense must share common features that are sufficiently distinctive so as to support the
inference that the same person committed both acts. [Citation.] ‘The pattern and
characteristics of the crimes must be so unusual and distinctive as to be like a signature.’
[Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 403, italics added.)
The requisite degree of similarity was not established in the present case. The
inference of identity “need not depend on one or more unique or nearly unique common
features; features of substantial but lesser distinctiveness may yield a distinctive
combination when considered together. [Citation.]” (People v. Miller (1990) 50 Cal.3d
954, 987.) Nevertheless, “‘“[t]he marks common to the charged and uncharged offenses,
considered singly or in combination, [must] logically operate to set the charged and
uncharged offenses apart from other crimes of the same general variety and, in so doing,
tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the
charged offenses.” [Citation.]’ [Citation.]” (Ibid.)
A walk-up shooting of a gang member (or someone associated with or believed to
be a gang member), perpetrated in gang territory by an African-American male wearing a
hooded sweatshirt, may be sufficiently distinctive to identify the shooter as a gang
member — perhaps even as a Country Boy Crip — but, especially in light of expert
testimony that walk-up shootings are now more common than drive-by shootings, it is not
sufficiently distinctive to identify the shooter as a specific gang member. (See People v.
Balcom (1994) 7 Cal.4th 414, 424-425 [where uncharged act relevant to show identity,
“highly unusual and distinctive nature” of charged and uncharged offenses “virtually
eliminates” possibility anyone but defendant committed charged offense].) Accordingly,
the trial court erred in admitting evidence of the 2001 shootings on the issue of, and
instructing jurors they could consider the evidence for the purpose of determining,
whether Dixon perpetrated charged offenses. (See, e.g., People v. Rivera (1985) 41
139.
Cal.3d 388, 392-393 [similarities that both crimes occurred on Friday night at
approximately 11:30 p.m., took place at convenience markets on street corners in Rialto
outside of which two or three people were seen standing before the crimes, involved three
perpetrators and getaway vehicles, and for which defendant presented alibi defense, not
sufficiently unique or distinctive so as to indicate defendant perpetrated both crimes],
disapproved on another ground in People v. Lessie (2010) 47 Cal.4th 1152, 1168, fn. 10.)
A lesser degree of similarity is required to prove the existence of a common
scheme or plan. (People v. Lindberg, supra, 45 Cal.4th at p. 23.) “Evidence of a
common design or plan … is not used to prove the defendant’s intent or identity but
rather to prove that the defendant engaged in the conduct alleged to constitute the charged
offense.” (People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. omitted.) “[I]n establishing a
common design or plan, evidence of uncharged misconduct must demonstrate ‘not
merely a similarity in the results, but such a concurrence of common features that the
various acts are naturally to be explained as caused by a general plan of which they are
the individual manifestations.’ [Citation.]” (Id. at p. 402.) “To establish the existence of
a common design or plan, the common features must indicate the existence of a plan
rather than a series of similar spontaneous acts, but the plan thus revealed need not be
distinctive or unusual.… [E]vidence that the defendant has committed uncharged
criminal acts that are similar to the charged offense may be relevant if these acts
demonstrate circumstantially that the defendant committed the charged offense pursuant
to the same design or plan he or she used in committing the uncharged acts. Unlike
evidence of uncharged acts used to prove identity, the plan need not be unusual or
distinctive; it need only exist to support the inference that the defendant employed that
plan in committing the charged offense. [Citation.]” (Id. at p. 403.)
We have been unable to locate any case in which the inference of a common
scheme or plan has been found to be proper based on the presence of so few, and such
mundane, common features, especially when those features appear to be common to the
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type of crime at issue. (Contrast, e.g., People v. Foster (2010) 50 Cal.4th 1301, 1329;
People v. Carter (2005) 36 Cal.4th 1114, 1148-1149; People v. Balcom, supra, 7 Cal.4th
at p. 424; People v. Ewoldt, supra, 7 Cal.4th at pp. 394-398, 403 & cases cited therein.)
In our view, the common features in the case before us are insufficient to indicate the
existence of a scheme or plan rather than a series of similar spontaneous acts.
Accordingly, the trial court erred in admitting evidence of the 2001 shootings on the issue
of, and instructing jurors they could consider the evidence for the purpose of determining,
whether Dixon had a plan or scheme to commit the charged offenses.
“The least degree of similarity is required to establish relevance on the issue of
intent. [Citation.] For this purpose, the uncharged crimes need only be ‘sufficiently
similar [to the charged offenses] to support the inference that the defendant “‘probably
harbor[ed] the same intent in each instance.’ [Citations.]”’ [Citation.]” (People v. Kipp,
supra, 18 Cal.4th at p. 371.) “‘In proving intent, the act is conceded or assumed; what is
sought is the state of mind that accompanied it.’ [Citation.]” (People v. Ewoldt, supra, 7
Cal.4th at p. 394, fn. 2.)
We find ample similarity between the charged and uncharged offenses so as to
render the 2001 shootings relevant with respect to intent. The same is true with respect to
motive. Moreover, “the probativeness of other-crimes evidence on the issue of motive
does not necessarily depend on similarities between the charged and uncharged crimes,
so long as the offenses have a direct logical nexus. [Citations.]” (People v. Demetrulias
(2006) 39 Cal.4th 1, 15.) Here, the logical nexus is hatred of rival gang members; the
motive is, in turn, relevant to show intent to kill and to benefit the perpetrator’s gang, as
well as premeditation. (See ibid.)
Our inquiry does not end here, however. “Although we have concluded that
evidence of [Dixon’s] uncharged criminal conduct is relevant to establish [intent and
motive], in order to be admissible such evidence ‘must not contravene other policies
limiting admission, such as those contained in Evidence Code section 352. [Citations.]’
141.
[Citation.] We thus proceed to examine whether the probative value of the evidence of
[Dixon’s] uncharged offenses is ‘substantially outweighed by the probability that its
admission [would] … create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.’ [Citation.]” (People v. Balcom, supra, 7 Cal.4th at
pp. 426-427.)
“Evidence of uncharged offenses ‘is so prejudicial that its admission requires
extremely careful analysis. [Citations.]’ [Citations.]” (People v. Ewoldt, supra, 7
Cal.4th at p. 404.) “‘Evidence is prejudicial within the meaning of Evidence Code
section 352 if it “‘uniquely tends to evoke an emotional bias against a party as an
individual’” [citation] or if it would cause the jury to “‘“prejudg[e]” a person or cause on
the basis of extraneous factors’” [citation].’ [Citation.]” (People v. Foster, supra, 50
Cal.4th at p. 1331.) “‘As Wigmore notes, admission of this evidence produces an “over-
strong tendency to believe the defendant guilty of the charge merely because he is a
likely person to do such acts.” [Citation.] It breeds a “tendency to condemn, not because
he is believed guilty of the present charge, but because he has escaped unpunished from
other offences.…” [Citation.] Moreover, “the jury might be unable to identify with a
defendant of offensive character, and hence tend to disbelieve the evidence in his favor.”
[Citation.]’ [Citation.] Due to these inherent risks, ‘uncharged offenses are admissible
only if they have substantial probative value.’ [Citations.]” (Ibid.)
In light of the risks, “admission of other crimes evidence cannot be justified
merely by asserting an admissible purpose. Such evidence may only be admitted if it
‘(a) “tends logically, naturally and by reasonable inference” to prove the issue upon
which it is offered; (b) is offered upon an issue which will ultimately prove to be material
to the People’s case; and (c) is not merely cumulative with respect to other evidence
which the People may use to prove the same issue.’ [Citation.]” (People v. Guerrero
(1976) 16 Cal.3d 719, 724.)
142.
Here, Dixon’s plea of not guilty and denial of the special allegations put in issue
all elements of the charged offenses and alleged enhancements. (People v. Steele (2002)
27 Cal.4th 1230, 1243.) Although he sought to limit the admissibility of the other crimes
evidence by stipulating to certain issues, the People were not required to accept the
proffered stipulations (People v. Scott (2011) 52 Cal.4th 452, 471), but rather were
entitled to prove their case (Steele, supra, at p. 1243).
Nevertheless, motive and intent were not seriously contested with respect to the
charged offenses themselves. There was no real question but that whoever shot the
victims did so with an intent to kill and premeditation, and was motivated by hatred of
rival gang members. (See People v. Ewoldt, supra, 7 Cal.4th at p. 406; People v. Bigelow
(1984) 37 Cal.3d 731, 748.) This being the case, the evidence of the 2001 shootings did
not have substantial probative value that outweighed its inherent prejudice. (See People
v. Lopez (2011) 198 Cal.App.4th 698, 715.) This is especially so in light of the
prejudicial impact of the other-crimes evidence. That evidence consisted not merely of a
property crime or even an assault, but a homicide and a shooting that could easily have
resulted in a homicide. Only the homicide resulted in a criminal conviction and prison
term; although it appears charges arising from the March 2001 shooting were dismissed
as part of the plea agreement with respect to the homicide, jurors may well have felt
Dixon was not punished for the nonfatal shooting. Moreover, despite the fact Dixon’s
legal guilt of the homicide had been conclusively determined by his manslaughter
conviction, because he never pled to the March 2001 shooting and testified he did not
actually commit the homicide, the jury’s attention necessarily was diverted to a
determination whether Dixon committed the uncharged offenses. (Compare People v.
Balcom, supra, 7 Cal.4th at p. 427.)
“Simply put, evidence of uncharged acts cannot be used to prove something that
other evidence showed was beyond dispute; the prejudicial effect of the evidence of the
uncharged acts outweighs its probative value to prove intent [and motive] as it is
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cumulative regarding [those] issue[s]. [Citations.]” (People v. Lopez, supra, 198
Cal.App.4th at p. 715.) Accordingly, we hold that the trial court abused its discretion by
admitting evidence of the 2001 shootings, and allowing the jury to consider it, for any
purpose with respect to the substantive offenses of the charged murders and attempted
murders.
The People say any error was harmless because even if Dixon’s prior offenses
were inadmissible under Evidence Code section 1101, they nevertheless were admissible
with respect to, in part, the gang charge and enhancements. We agree the prior offenses
were admissible for those purposes. (See People v. Tran (2011) 51 Cal.4th 1040, 1046-
1047, 1048; People v. Williams (2009) 170 Cal.App.4th 587, 612-613.) We disagree,
however, that admissibility with respect to one purpose renders harmless an error in
allowing evidence to be considered for another, improper purpose. We presume jurors
follow limiting instructions (People v. Guerra (2006) 37 Cal.4th 1067, 1115, disapproved
on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151; but see People v.
Gibson (1976) 56 Cal.App.3d 119, 130), and so would not have considered the uncharged
offenses in determining, for example, Dixon’s identity as one of the perpetrators of the
McNew Court shootings had a proper limiting instruction been given.
We caution prosecutors against over proving their cases and urge trial courts
carefully to assess especially inflammatory evidence to determine whether it is
unnecessarily cumulative. (See People v. Tran, supra, 51 Cal.4th at p. 1049; People v.
Williams, supra, 170 Cal.App.4th at pp. 610-611.) Nevertheless, we do not believe
admission of the other-crimes evidence, standing alone, gave rise to a deprivation of
Dixon’s right to a fair trial such that the error must be assessed under the harmless-
beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). (Compare People v. Foster, supra, 50 Cal.4th at p. 1335 & People v.
Williams, supra, 170 Cal.App.4th at pp. 612-613 with People v. Albarran (2007) 149
Cal.App.4th 214, 227-232.) Assessing such errors under the standard of People v.
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Watson (1956) 46 Cal.2d 818, 836 (Watson), as is appropriate (People v. Malone (1988)
47 Cal.3d 1, 22), we find no cause for reversal: It is not reasonably probable a result
more favorable to Dixon would have resulted absent the errors.
In reaching this conclusion, we reject the notion that CALCRIM No. 375, as given
by the trial court, was constitutionally defective because it permitted jurors to draw
irrational inferences from the other-crimes evidence. (See Yates v. Evatt (1991) 500 U.S.
391, 402, fn. 7, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62,
72, fn. 4; Francis v. Franklin (1985) 471 U.S. 307, 314-315; People v. Castro (1985) 38
Cal.3d 301, 313.) The court instructed the jury in accordance with its evidentiary rulings.
That its rulings were erroneous under state law does not somehow transform the resulting
instructional error into error under the federal Constitution. Although the jury should not
have been permitted to consider the other-crimes evidence for nongang-related purposes,
the inferences permitted by the instruction were not irrational. Accordingly, the
instruction was not constitutionally deficient. (See People v. Moore (2011) 51 Cal.4th
1104, 1130-1133.)
We further conclude the trial court’s instructions and the prosecutor’s statements
made it clear to jurors that they could not use the evidence of the 2001 shootings against
anyone but Dixon with respect to the substantive charges. Lee has no cause to complain
about Sherman’s consideration of the prior crimes in forming his opinions concerning the
charged offenses.
2. McNew Court Video
Johnson contends the trial court erred by admitting a video recording of the
McNew Court area made one year after the shootings. Johnson says there was no
foundation laid that the video accurately reflected the amount of light actually available
at the time of the shootings or that the video camera was able to replicate those conditions
had they existed. He further says the limiting instruction given by the court eliminated
any relevance the video might have had, leaving only the prejudicial effect of the
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inaccurate tape. Dixon and Lee join. The People say Lee forfeited the issue by
withdrawing his objection to the evidence at trial, no abuse of discretion occurred, and
any error was harmless.
a. Background
The People’s theory was that the McNew Court homicides constituted first degree
murder because they were premeditated and perpetrated by means of lying in wait. To
help prove this theory, witnesses were questioned about lighting conditions and the
falling of darkness in conjunction with when the shootings occurred. For instance, Albert
Darrett testified that when he was talking to Anthony Lyons through his vehicle window,
“[i]t was light, but it was getting dark.” He saw two people walking on the opposite side
of the street, maybe halfway down the block west of his location. When he saw these
two — the shooters — approach, “[i]t was a little light, but it was getting dark.” He
believed his vehicle’s headlights, which came on automatically, were on. Othelon Lyons
told Senior Deputy Little that he saw one of the shooters run southbound and disappear
into the dark. Othelon gave a description of what one of the perpetrators was wearing,
but said he could not see anything in the way of facial hair. Asked if it was fair to say it
was “kind of dark out there,” Othelon answered that it was. When Little noted there were
some lights for the driveway, Othelon responded, “Ah, you can’t see, I mean — I mean it
was — it was still kind of like daylight, but you know, the dark clothes and how black …
how dark they was, I couldn’t even see no facial hairs or nothing.” (Ellipsis in original.)
Mark Riehle, an evidence technician with the Kern County Sheriff’s Office, was
asked to research the time of sunset on April 19, 2007. To this end, he searched the
Internet and found a website that allowed the user to research the times of sunrises,
sunsets, and twilights of any date desired. He learned that sunset is when the sun goes
below the horizon. Civil twilight occurs when the sun is six degrees below the horizon.
It is the limit at which twilight illumination is sufficient, under good weather conditions,
for terrestrial objects to be clearly distinguished. The horizon is clearly defined, and the
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brightest stars are visible under good atmospheric conditions, in the absence of moonlight
or other illumination. After the end of civil twilight, artificial illumination is normally
required to carry out ordinary outdoor activities. A person can still see during the period
of time between sunset and civil twilight. On April 19, 2007, sunset was at 7:31 p.m.,
while twilight was at 7:57 p.m. On April 18, 2008, sunset was at 7:30 p.m., and twilight
was at 7:57 p.m.
Riehle was asked to shoot a video of McNew Court and Feliz Drive on April 18,
2008, in the daytime. He was also directed to shoot video just before 8:00 p.m. at the
residence on McNew Court at which the shootings occurred. He began recording the
nighttime portion of the video at 7:45 p.m., and continued recording until 7:55 p.m., at
which point it was too dark to really see anything. Riehle recorded using a mini-digital
videotape, then transferred it to a DVD to make it easier to use. People’s exhibit 98 was
the DVD created from the mini-digital videotape.
When Riehle recorded the nighttime portion of the video, he “bumped up the
gain,” enabling the camera to see low light levels better by bringing more light into the
camera than normal. After he bumped up the gain, Riehle looked through the viewfinder
to see how bright it was, and then used his eyes to look down the street. To him, it
looked as close as it could be on the viewfinder to what his eyes were seeing.
Counsel for Dixon objected to the video being played for the jury. Counsel for
Lee joined. The trial court overruled the objections, saying defense counsel could cross-
examine. The prosecutor then proceeded to play the daytime portion of the video, which
showed the environs of the shooting location on McNew Court, as well as portions of
Feliz Drive.
The video then switched to the nighttime portion, which began at 7:45 p.m. in
front of the residence on McNew Court at which the clothing and cell phone were found,
looking east toward the location of the shootings. There was a moon in the video; Riehle
was unable to say whether the moon was of the same illumination the year before.
147.
Counsel for Johnson and Dixon objected to this portion of the video on relevance
grounds and based on variances between how an artificial lens interprets light compared
to the human eye. When the court asked Riehle if the image shown on the DVD was the
image he saw with his naked eye, Riehle responded that the video image was darker than
what the naked eye sees. When counsel for Dixon and Lee then objected on lack of
foundation/accuracy grounds, the trial court took up the issue outside the presence of the
jury.
Prior to the hearing, counsel for Lee filed a brief in support of his motion to
exclude the videotape pursuant to Evidence Code sections 210 and 352. He argued that if
the People’s position was that the tape was relevant to demonstrate the scene at
nighttime, then the lighting conditions had to replicate what was present on the night of
the shooting. Counsel pointed out that on April 19, 2007, there was a waxing crescent
moon with only 8 percent of the moon visible, plus reportable haze reducing visibility
that night. On April 18, 2008, in contrast, 97 percent of the moon was shining and the
sky was clear. Counsel requested that if the court permitted the jury to view the
nighttime video, it admonish jurors that the video was not taken under substantially the
same or similar lighting conditions as the night of the crimes, jurors could not consider
the lighting conditions in the video when evaluating any eyewitness’s testimony related
to his or her ability to see or describe the perpetrators, and jurors could only use the video
to orient themselves to the crime scene and surrounding buildings, streets, and other
structures.
At the hearing, the trial court entertained argument, then ruled the daytime portion
of the video was admissible.92 Turning to the nighttime portion of the video, Riehle
testified that he taped in front of the residence where the clothes and cell phone were
92 As defendants do not challenge this portion of the trial court’s ruling, we do not
address it further.
148.
found for less than 30 seconds starting at 7:45 p.m., then turned off the videotape and
began filming again at 7:55 p.m. at the address at which the shootings occurred. Between
7:45 and 7:55 p.m., he could see with his naked eye that it grew noticeably darker.
Riehle explained that a video camera interprets light differently than the human
eye. A video cannot see low light as well as the human eye, but, in his opinion, the
camera “was doing the best it could” and “was giving a fairly accurate representation
with what it could see.”
Riehle believed there was cloud cover on April 19, 2007, but no fog. There was
no cloud cover or fog on the night he shot the video. The parties agreed the video
showed a full moon, while the moon was not full on the date of the shootings.
Asked by the court whether the purpose of the video was to demonstrate the
lighting conditions under which witnesses viewed events, the prosecutor stated there was
no attempt at reenactment, because conditions could not be duplicated. She argued,
however, that the video was relevant to demonstrate that darkness came quickly, which
tended to show premeditation and deliberation in that the shooters waited for the cover of
darkness in order to be able to make their escape. She asserted it was reasonable to argue
they were waiting and watching because of the presence of the clothes in the direction
from which they came. The prosecutor conceded the People could not say whether the
video depicted the degree of darkness that existed at the time of the shootings, but argued
the video corroborated the research that showed twilight fell at that moment, and things
got much darker. Whatever the amount of moonlight, it still would have been the darkest
moment, with things changing significantly in the minutes before 7:57 p.m., the time of
the shooting.
Counsel for Lee stated that as long as the jury was admonished not to use the
video for evaluating lighting conditions on the night of the shooting, he was “fine with”
the video. Counsel for Johnson objected to introduction of the video, however, primarily
because of the evidence already presented by eyewitnesses concerning the lighting
149.
conditions, and because since the video recording was darker than actual conditions, it
would create reasons for speculation and presumption.
The trial court ruled the video was admissible to show the jury a reasonable
representation of the change in darkness between 7:45 and 7:55 p.m. As long as jurors
were appropriately admonished that it was not being used to show lighting conditions, the
probative value was not outweighed by any prejudicial impact. Defense counsel
subsequently all agreed the court could read the admonition presented to it by the People.
Accordingly, the court informed the jury: “Ladies and gentlemen, you’re about to review
a DVD taken in the evening of April 18th, 2008. This video was not taken under the
identical lighting conditions as of the night of the crime of April 19th, 2007. The purpose
of the film is not to demonstrate the exact lighting conditions under which the witnesses
were able to view the events of the crime and may not be viewed as such. The film is
being admitted for the limited purpose of showing the level and degree when darkness
fell between the times of 7:45 P.M. and 7:55 P.M. You are not to consider it for any
other purpose.”
Riehle then testified that he started the video at 7:45 p.m. and videotaped for a
short time to show the conditions from the location where the clothes and cell phone were
found, looking east toward Cottonwood Road and the location of the shootings. He then
walked east toward the location of the shootings, waited until approximately 7:55 p.m.,
and then took several shots from different angles between 7:55 and approximately
7:57 p.m. in front of and in the driveway of that residence. Riehle noticed that it was
visibly getting darker between 7:45 and 7:55 p.m., but then it seemed to get even darker
rather quickly between 7:55 and 7:57 p.m.
Riehle related that he was not asked to replicate the conditions that existed on
April 19, 2007, and was not asked to consider moon conditions or cloud cover. At
7:45 p.m., what he saw through the viewfinder was very similar to what he saw with his
eye. At 7:55 p.m. and shortly thereafter, his eye was able to see better than what could be
150.
seen in the video. The video was a little bit darker than what the eye could see, and by
7:57 p.m., it was substantially different. Riehle explained that video does not interpret
light the same as the human eye.
The video was played for the jury with Riehle narrating. Riehle testified that he
did not show the video to any witnesses of the McNew Court shooting to ask if the
lighting conditions were similar.
During her argument to the jury, the prosecutor differentiated between sunset and
twilight, with the latter being “when it really gets dark .…” Twilight on April 19, 2007,
fell at 7:57 p.m. She then stated: “Now, the video is not trying to show you the specific
level of darkness because we could not do an actual experiment because the moon’s
different and the lighting and everything, but what it does demonstrate is when the onset
of darkness fell, and it came very, very quickly, right at 7:57, and that is indicative of
showing lying in wait, for things to get very dark so the victims wouldn’t recognize them,
premeditation, and deliberation. The shooters were watching and waiting.”
b. Analysis
Lee forfeited his claims of error by withdrawing his objection to the video in the
trial court. (See People v. Riel (2000) 22 Cal.4th 1153, 1194.) All defendants forfeited
any challenges to the wording of the limiting instruction, since the admonishment was a
joint creation and all counsel agreed the court could read it to the jury.
In any event, defendants’ claims lack merit.93 “In ruling upon the admissibility of
a videotape, a trial court must determine whether: (1) the videotape is a reasonable
representation of that which it is alleged to portray; and (2) the use of the videotape
would assist the jurors in their determination of the facts of the case or serve to mislead
them. [Citation.] Within these limits, ‘“the physical conditions which existed at the time
93 In light of this, we need not determine whether any forfeiture was the result of
deficient performance by counsel.
151.
the event in question occurred need not be duplicated with precision nor is it required that
no change has occurred between the happening of the event and the time the [videotape]
is taken. [Citation.]”’ [Citation.]” (Rodrigues, supra, 8 Cal.4th at p. 1114.)
“When, as here, the relevance of evidence depends on the existence of a
preliminary fact, the proffered evidence is inadmissible unless the trial court finds there is
sufficient evidence to sustain a finding of the existence of the preliminary fact.
[Citation.] That is, the trial court must determine whether the evidence is sufficient for a
trier of fact to reasonably find the existence of the preliminary fact by a preponderance of
the evidence. [Citation.] ‘The court should exclude the proffered evidence only if the
“showing of preliminary facts is too weak to support a favorable determination by the
jury.”’ [Citation.] A trial court’s decision as to whether the foundational evidence is
sufficient is reviewed for abuse of discretion. [Citation.]” (People v. Guerra, supra, 37
Cal.4th at p. 1120.)
Rodrigues is instructive. In that case, the police made a videotape the day after a
murder with the help of the victims’ neighbor. The video showed the outside of the
neighbor’s apartment, a nearby stairway, and a view from her bedroom. It included a
scene in which a White man in a white shirt came down the stairs in daylight, stopped
and looked directly toward the neighbor’s apartment, and then ran off in the direction the
assailants had run. The videotape was admitted at trial. (Rodrigues, supra, 8 Cal.4th at
pp. 1112-1113.)
On appeal, the defendant claimed the video should have been excluded, because
the prosecution failed to lay a foundation showing the accuracy of particular scenes as
reenactments of what the neighbor saw on the night of the murder. The defendant
claimed (1) the scenes were shot in broad daylight, while the actual events took place in
the middle of the night and were illuminated only by an artificial light above the stairs;
(2) the scene showed one White male wearing a white shirt, whereas the neighbor
testified she saw two males, one Hispanic and one Black or “‘dark,’” wearing dark
152.
clothing; and (3) while one scene correctly showed the neighbor’s vantage point from
inside her apartment looking out the bedroom window, another scene was inaccurate in
that respect. The defendant claimed the inaccuracies prejudiced him by creating a
misleading impression of what the neighbor saw, and by transforming her purportedly
“‘shaky’” identification of him into a persuasive image. (Rodrigues, supra, 8 Cal.4th at
pp. 1113-1114.)
The California Supreme Court found no abuse of discretion in the video’s
admission. It observed that the video was offered as demonstrative evidence to show
jurors the relative locations of various structures and appurtenances, as well as the
neighbor’s vantage point when she saw the assailants flee the scene. Once the neighbor
confirmed in her testimony that the video accurately showed her location, the trial court
could correctly conclude the video was a reasonable representation of the premises and
the neighbor’s vantage point, and that it would aid jurors in their determination of the
facts of the case despite the inaccuracies. (Rodrigues, supra, 8 Cal.4th at pp. 1114-1115.)
The high court noted that the video was not offered for the purpose of showing lighting
conditions on the night in question; hence, the difference in lighting conditions was not
significant. (Id. at p. 1115.) Moreover, the inaccuracies did not make the video
misleading “as to the purposes for which it was offered,” and were either obvious to the
jurors or were specifically brought to their attention. (Ibid.) The court concluded:
“Under circumstances such as these, we must assume that the jurors were intelligent
people and that they understood and took into account the differences identified by
defendant on appeal. [Citation.] Admission of the videotape did not constitute error,
prejudicial or otherwise.” (Id. at pp. 1115-1116.)
Defendants say Rodrigues does not support admission of the McNew Court video,
because the McNew Court video was not offered to show permanent fixtures, but rather a
change in the light. Because no reasonable distinction can be drawn between the “‘level
and degree of darkness,’” for which purpose defendants say the instruction permitted the
153.
jury to consider the video, and lighting conditions at the scene, defendants argue the
video should have been excluded under the authority of People v. Boyd (1990) 222
Cal.App.3d 541 (Boyd) and People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez).
In Boyd, the defendants sought to introduce a film that purported to reproduce
lighting conditions at the crime scene, in an attempt to show that a prosecution witness
could not have seen events clearly enough to identify the perpetrators. The
cinematographer who made the film testified that he went to the site several times to take
light meter readings, waited until the moon was full to film, and consulted technicians
with the company that manufactured the film and followed their recommendations
concerning film speed and type of film. Even so, he conceded that the angle of the moon
was not the same when he filmed as on the night of the murder, he did not position a
truck with its headlights on or reproduce the reflection of light from another vehicle, and
was unsure whether the foliage on a tree at the site and resulting pattern of shadows were
the same. (Boyd, supra, 222 Cal.App.3d at pp. 565, 566.)
After viewing the film, the trial court excluded it. The court found the
foundational requirements for admission were not met, as it believed the human eye
could see more than the film showed, and no witness testified the film accurately
represented the lighting conditions on the night of the crime. (Boyd, supra, 222
Cal.App.3d at p. 565.) The Court of Appeal found no abuse of discretion. Since the
purpose of the film was to demonstrate to the jury the lighting conditions under which
witnesses viewed the crime, that court observed, the differences in conditions between
the time of the events and time the film was made “assumed great significance.” (Id. at
p. 566.) Accordingly, the trial court reasonably concluded the lighting conditions shown
on the film were not sufficiently similar to the lighting conditions on the night of the
crime. (Ibid.)
In Gonzalez, the defendant offered a videotape solely to show lighting conditions
at the time of a shooting. A defense expert testified to the minimum amount of light
154.
necessary for a video camera to record, and that the human eye can see with even less
light. The witness also testified that the human eye can see things better in the dark than
a video camera, regardless of the level of illumination. In light of this testimony and
other differences between the videotape and the actual lighting conditions at the time of
the crime, the trial court excluded the evidence. (Gonzalez, supra, 38 Cal.4th at p. 952.)
The California Supreme Court found no error. It observed that, in order to be
admissible, a video recording must be authenticated by testimony or other evidence that it
accurately depicts what it purports to show. (Gonzalez, supra, 38 Cal.4th at p. 952.)
Because the video did not portray that for which it was offered, namely the actual lighting
conditions at the time of the crime, the trial court acted within its discretion in excluding
the video. (Id. at p. 953.)
In both Boyd and Gonzalez, the video recording was offered to show actual
lighting conditions. Such was not the situation in the present case, and we reject the
notion that there is no reasonable distinction between “the level and degree when
darkness fell,” for which purpose the jury was permitted to consider the evidence, and the
“exact lighting conditions under which the witnesses were able to view the events of the
crime,” for which the jury was not. While we acknowledge that, unlike in Rodrigues,
here none of the eyewitnesses to the events at McNew Court confirmed the accuracy of
what was depicted in the video, we conclude that omission was not fatal to admission of
the evidence given the purpose for which it was offered, Riehle’s testimony, and the
limiting instruction.
Although more recent than most of the briefing in this case and so not cited by any
party, we find People v. Jones (2011) 51 Cal.4th 346 helpful. In that case, the defendant
sought admission of two videotapes of the crime scene taken one and two years after
events, in order to impeach a witness’s testimony. When the prosecutor cited Boyd in
support of his objection that a camera does not show what the eye can see, the defendant
countered that he was not offering the tapes to show the lighting conditions at the time of
155.
the crime, but to show the amount of natural light available then and thereby impeach the
witness’s testimony that he could see due to natural light. Because the witness had
testified that a light was on next door to the crime scene, the trial court questioned how
someone could determine the source of the light that allowed him or her to see. The court
opined that the relevance of the videos would be to illustrate what the witness could or
could not see and, after watching the tapes, the court stated its belief that the
videographers could see things the cameras did not show. Accordingly, it concluded the
videos would deceive the jury, and so excluded them. It made clear, however, that the
witnesses could testify about what they could see. (Jones, at pp. 373-375.)
Relying on Gonzalez, Rodrigues, and Boyd, the California Supreme Court upheld
the trial court’s ruling. (People v. Jones, supra, 51 Cal.4th at p. 375.) It stated: “As the
trial court observed, a witness will know whether and what he could see, based on
whatever source of light exists, but would not ordinarily distinguish how much of the
actual lighting was due to natural light and how much to artificial light. Because the
record shows that artificial light existed at the time of the crime, the trial court could, in
its discretion, reasonably conclude that trying to isolate one portion of the available light
could serve only to confuse, not assist, the jury.” (Id. at p. 376.) The high court further
rejected the defendant’s suggestion, based on a number of cases, that there is a double
standard in favor of the prosecution such that videotapes are excluded only when
defendants offer them. The court stated: “[N]othing in [the cited cases] supports
admission of the videotape here. Rather, videotapes are admissible within the court’s
discretion when they assist the jury, and they are excludable within the court’s discretion
when they do not assist the jury. Here, the trial court reasonably exercised its discretion
to exclude the tapes. In other cases, … the court reasonably exercised its discretion to
admit tapes.” (Ibid.)
In our view, the trial court here reasonably could have exercised its discretion to
admit or to exclude the video. Because the court’s decision to admit the video did not fall
156.
outside the bounds of reason under the circumstances (see People v. Giminez, supra, 14
Cal.3d at p. 72), there was no error. The video had at least some probative value despite
differences between the night of the shootings and the night the film was made, and
between what the human eye and the camera could see. Since those differences were
made clear to the jury through testimony, and the limited purpose for which the video
considered was made clear through the trial court’s admonition and the prosecutor’s
argument to the jury, it had little, if any, prejudicial effect. The limiting instruction did
not, as defendants claim, eliminate the video’s relevance; moreover, the inferences the
prosecutor sought to draw from the evidence were not speculative. (See People v.
Babbitt (1988) 45 Cal.3d 660, 682 [evidence producing only speculative inferences is
irrelevant].) That she could have argued premeditation and lying in wait based on
witness testimony and the physical evidence found at the scene, does not mean the video
was merely cumulative. (See People v. Harrison (2005) 35 Cal.4th 208, 234.)
3. Sara Agustin’s Testimony
Lee and Dixon raise claims of error with respect to admission of certain portions
of Sara Agustin’s testimony. Dixon, joined by Lee, says the trial court’s erroneous
admission of Agustin’s testimony concerning Johnson’s statements inculpating his
codefendants, violated their rights to due process and a fundamentally fair trial. The
People say the testimony was properly admitted against all three defendants and,
assuming some error under state law, there was no due process violation. Lee, joined by
Dixon, faults the trial court for permitting Agustin to testify that she had discussed Lee’s
gang role and activities with Lee’s girlfriend. The People say this evidence was properly
admitted solely against Johnson. We address each claim in turn.
a. Johnson’s statements inculpating codefendants
1. Background
The People moved, in limine, to admit statements of Johnson and Dixon against
all three defendants as declarations against penal interest pursuant to Evidence Code
157.
section 1230. In pertinent part, the People pointed to statements made by Johnson to
Agustin concerning the incidents in which Lee’s car and Lee were shot, and the charged
shootings. Dixon and Lee moved to exclude anything Johnson allegedly told Agustin
relating to either of them, asserting declarations against penal interest could be admitted
only against the declarant, and that the proffered evidence was inadmissible under the
federal Constitution.
The prosecutor excerpted, from Agustin’s grand jury testimony and law
enforcement interviews, each statement proposed for use at trial. Following a lengthy
argument, the court made rulings concerning the various categories of statements.
Agustin’s testimony is set out in the statement of facts, ante. We recount here the main
statements to which Dixon and Lee now object, and the trial court’s related rulings.94
 Johnson told Agustin that Dixon and Lee were Country Boy Crips. (This
was admitted against Johnson as an admission, and against Dixon and Lee under the
coconspirator exception to the hearsay rule.)
 Lee discussed with Johnson, in Agustin’s presence, Lee’s car getting shot.
Lee said he and Johnson went to a location on Pacheco Road to buy some marijuana, and
they were shot at by some individuals. Lee’s black vehicle was shot many times. He and
Johnson were both angry, and Johnson said they needed to go back and retaliate.
Johnson and Lee discussed how they needed to retaliate. Lee said he submitted a damage
claim to his insurance company, but regretted doing so because the insurance company
94 Because the People appropriately do not claim forfeiture based on lack of or
insufficient objection, for the most part we do not include any objections and rulings
made when Agustin actually testified to the statements. Counsel for Lee and Dixon
unsuccessfully renewed their objections and motions to exclude midway through
Agustin’s direct examination. They were granted a continuing objection to the evidence.
Our analysis with respect to any other statements made by Johnson to Agustin
implicating Lee and/or Dixon is the same as with respect to the statements we identify
here.
158.
required a police report, and that was how the police department found out about the
shooting. (These statements were admitted, during in limine motions, against Johnson
and Lee as declarations against interest. At the time Agustin testified, they were also
admitted against Dixon with respect to counts nine (conspiracy) and eleven (active
participation in a criminal street gang).)
 Lee came to Agustin’s house with his arm bandaged. Speaking to Agustin
and Johnson, he said he and Johnson went back to retaliate for the initial shooting, and
parked off Pacheco Road so their vehicle would not be spotted. Johnson said they then
started walking toward the location where they thought the individuals lived. Lee said as
they were walking, they spotted a vehicle driving toward them. In it were the individuals
who had shot Lee’s vehicle. These people now began to shoot toward Lee and Johnson.
Johnson said that he pulled out his gun and went to fire, but it jammed. He and Lee then
ran in different directions. Lee said he jumped over a fence and it broke. Agustin
already knew Lee had been shot, because Johnson had told her the same story about what
had happened when he said he wanted to go with Agustin to visit Lee at the hospital.
(These statements were admitted, during in limine motions, against Johnson and Lee as
declarations against interest. At the time Agustin testified, they were also admitted
against Dixon with respect to counts nine and eleven.)
 Johnson gave Agustin some clothes to destroy. He said that a couple of
days earlier, he and Lee had driven to a location off of Monterey Street, by the canal.
Lee was driving and parked in an alley. Johnson got out of the vehicle, put on a mask,
walked to the front of a residence where a couple of individuals were sitting, walked up
to one of them, and began shooting. Johnson said that Lee wanted to go and retaliate for
the shooting on Pacheco Road, but he could not shoot the gun himself because of his
injuries, so Johnson had to shoot on his behalf. (These statements were admitted against
Johnson and Lee as declarations against interest.)
159.
 Johnson and Agustin were lying in bed. Johnson told her that he, Dixon,
and Lee had driven to a certain location. They had parked the car where they could
watch a particular vehicle. Dixon and Lee stayed in the car, while Johnson got out,
approached, and started shooting inside the vehicle. He could not see inside, but thought
someone was there. (These statements were admitted against all three defendants as
declarations against interest.)
 Agustin overheard a phone call Johnson got from Dixon. Johnson said
Dixon was very upset at him because he had left the clothing that he was wearing at the
shooting, and inside the coat pocket was Dixon’s cell phone. The police had found the
items and were harassing Dixon. (These statements were admitted against all three
defendants as declarations against interest.)
 Agustin saw Johnson, Dixon, Lee, and Goo sitting on the floor at Dreenie’s
house, with a bunch of money and some marijuana. All four were talking about how they
had robbed Reese; they were splitting the money among themselves. (These statements
were variously admitted against all three defendants as admissions, declarations against
interest, adoptive admissions, and coconspirator statements.)
 Johnson told Agustin that he and Dixon found out where the father of the
person who shot Johnson’s friend lived. Johnson and Dixon drove to the location, which
was up in the bluffs, got out of the car, and started walking toward the house. When a
vehicle approached and the individuals inside made eye contact with them, Johnson and
Dixon got scared and pretended they were tying their shoes. (These statements were
admitted against all three defendants as declarations against interest.)95
95 Although Agustin testified at trial that she did not recall Johnson saying Lee was
with Dixon and him, the assumption during the in limine hearing was that she would
include Lee, based on her grand jury testimony.
160.
 Johnson drove Agustin to an intersection on Real Road and showed her a
camera on the signal light. He said he had done a drive-by shooting at that intersection
the previous Saturday. He said Lee was driving, Dixon was in the passenger seat, and
Johnson was in the back seat. Johnson said he saw an individual walking on the
sidewalk, and he stuck his head out of the car and fired. He was concerned that the
camera may have recorded the incident. (These statements were admitted against all
three defendants as declarations against interest.)
 Johnson took Lee and Dixon to see the camera on the light post. Agustin
was with them. Johnson said that if the camera was actually recording, it would be bad
because it would show that Lee was driving, the vehicle and the license plate, and that
Dixon was in the front seat. Dixon responded that if it was going to show that, it was
also going to show when Johnson put his head out of the window and started firing.
(These statements were variously admitted against all three defendants as declarations
against interest, admissions, and adoptive admissions.)
Agustin testified under a grant of immunity. During her 11-month relationship
with Johnson, she smoked marijuana just about every day, but to her knowledge suffered
no memory loss as a result. Senior Officer Sherman testified that it is not uncommon,
within the gang culture, for a shooter to brag about shooting, though he likely would not
brag about shooting an innocent victim. A shooter would not brag about doing a shooting
he did not actually do; to take credit for something someone else did would be perceived
as disrespect.
The trial court instructed the jury that Agustin was a potential accomplice to
conspiracy to violate section 186.22, subdivision (a), as charged in count nine, and
section 186.22, subdivision (a)(1), as charged in count eleven.
2. Analysis
At trial, Lee and Dixon asserted in part that admission of the challenged evidence
violated their confrontation rights under the Sixth Amendment to the United States
161.
Constitution, because they were unable to cross-examine the declarant, Johnson. They
now acknowledge that the statements at issue were not testimonial. (Davis v. Washington
(2006) 547 U.S. 813, 822, 826-827 (Davis); Crawford v. Washington (2004) 541 U.S. 36,
51-54 (Crawford).) “Only [testimonial statements] cause the declarant to be a ‘witness’
within the meaning of the Confrontation Clause. [Citation.] It is the testimonial
character of the statement that separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”
(Davis, at p. 821.) “Accordingly, after Davis, the determination of whether the admission
of a hearsay statement violates a defendant’s rights under the confrontation clause turns
on whether the statement is testimonial. If the statement is testimonial, it must be
excluded unless the declarant is unavailable as a witness and the defendant had a prior
opportunity to cross-examine the declarant. If the statement is not testimonial, it does not
implicate the confrontation clause, and the issue is simply whether the statement is
admissible under state law as an exception to the hearsay rule.” (People v. Garcia (2008)
168 Cal.App.4th 261, 291; see People v. Cage (2007) 40 Cal.4th 965, 981 & fn. 10, 984.)
In light of the foregoing, on appeal Lee and Dixon abandon their Sixth
Amendment argument. Instead, they focus on their claims the evidence was (1) not
admissible under the Evidence Code, and (2) so grossly unreliable that its admission
denied them their rights to due process and a fair trial.
The statements Johnson made to Agustin outside the presence of Lee and/or Dixon
primarily were admitted as declarations against interest. Pursuant to Evidence Code
section 1230, “Evidence of a statement by a declarant having sufficient knowledge of the
subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and the statement, when made, … so far subjected him to the risk of … criminal
liability, … that a reasonable man in his position would not have made the statement
unless he believed it to be true.”
162.
The first requirement — unavailability of the declarant — was clearly satisfied.
Having chosen to exercise his Fifth Amendment privilege not to testify, Johnson was
unavailable. (People v. Cudjo (1993) 6 Cal.4th 585, 607; People v. Fuentes (1998) 61
Cal.App.4th 956, 961-962.)
The second and third requirements — that the statement must have been against
the declarant’s penal interest and must have been sufficiently reliable to warrant
admission despite its hearsay character (People v. Cudjo, supra, 6 Cal.4th at p. 607) —
are interrelated. If a statement “‘is truly against interest within the meaning of Evidence
Code section 1230,’” it “‘is sufficiently trustworthy to be admissible ….’” (People v.
Geier (2007) 41 Cal.4th 555, 584; see People v. Fuentes, supra, 61 Cal.App.4th at
pp. 966-967.) Because declarations against penal interest sometimes contain self-serving
and unreliable information (People v. Duarte (2000) 24 Cal.4th 603, 611), Evidence
Code section 1230 does not apply “to evidence of any statement or portion of a statement
not itself specifically disserving to the interests of the declarant.” (People v. Leach
(1975) 15 Cal.3d 419, 441, fn. omitted.) Thus, the statute does not apply to “‘collateral
assertions’” within a declaration against penal interest (Duarte, supra, at p. 612);
moreover, “a hearsay statement ‘which is in part inculpatory and in part exculpatory (e.g.,
one which admits some complicity but places the major responsibility on others) does not
meet the test of trustworthiness and is thus inadmissible.’ [Citations.]” (Ibid.)
To determine whether a particular statement is trustworthy, “a trial court ‘may
take into account not just the words but the circumstances under which they were uttered,
the possible motivation of the declarant, and the declarant’s relationship to the
defendant.’ [Citation.]” (People v. Cudjo, supra, 6 Cal.4th at p. 607.) This is because
“even when a hearsay statement runs generally against the declarant’s penal interest and
redaction has excised exculpatory portions, the statement may, in light of circumstances,
lack sufficient indicia of trustworthiness to qualify for admission. [Citations.]” (People
v. Duarte, supra, 24 Cal.4th at p. 614.) Accordingly, “assessing trustworthiness
163.
‘“requires the court to apply to the peculiar facts of the individual case a broad and deep
acquaintance with the ways human beings actually conduct themselves in the
circumstances material under the exception.”’ [Citation.]” (Ibid.)
The test of whether a statement is one against penal interest “is an objective one
— would the statement subject its declarant to criminal liability such that a reasonable
person would not have made the statement without believing it true. [Citations.]”
(People v. Jackson (1991) 235 Cal.App.3d 1670, 1678, fn. omitted.) We review a trial
court’s determinations whether a statement was against the declarant’s penal interest and
whether it was trustworthy for abuse of discretion. (People v. Lawley (2002) 27 Cal.4th
102, 153; People v. Gordon (1990) 50 Cal.3d 1223, 1250-1253, overruled on another
ground in People v. Edwards, supra, 54 Cal.3d at p. 835; People v. Greenberger (1997)
58 Cal.App.4th 298, 335 (Greenberger).)96
96 There is some disagreement concerning the appropriate standard of review of a
trial court’s ruling on the trustworthiness issue. Citing Lilly v. Virginia (1999) 527 U.S.
116 (plur. opn. of Stevens, J.) (Lilly), some courts have conducted de novo review. (See,
e.g., People v. Cervantes (2004) 118 Cal.App.4th 162, 174-175 & cases cited therein.)
However, the Lilly court expressly stated it accepted the state court’s determination that
the declarant’s statements were reliable for purposes of state hearsay law. (Lilly, supra,
at p. 136 (plur. opn. of Stevens, J.).) It applied the standard of independent review with
respect to whether the government’s proffered guarantees of trustworthiness satisfied the
demands of the confrontation clause. (Id. at p. 137.) In so doing, Lilly undertook the pre-
Crawford confrontation clause analysis required by Ohio v. Roberts (1980) 448 U.S. 56,
66 (Roberts), viz., “that the veracity of hearsay statements is sufficiently dependable to
allow the untested [by cross-examination] admission of such statements against an
accused when (1) ‘the evidence falls within a firmly rooted hearsay exception’ or (2) it
contains ‘particularized guarantees of trustworthiness’ such that adversarial testing would
be expected to add little, if anything, to the statements’ reliability. [Citation.]” (Lilly,
supra, at pp. 124-125 (plur. opn. of Stevens, J.).) With Crawford and Davis, however,
Roberts has been overruled for all purposes. (People v. Cage, supra, 40 Cal.4th at p. 981,
fn. 10.) We thus adhere to the abuse-of-discretion standard, although our conclusion
regarding admissibility would be the same in the present case under de novo review.
164.
Johnson’s statements implicated him in murder and attempted murder. Clearly, on
their face they were against his penal interest. (People v. Cudjo, supra, 6 Cal.4th at
p. 607.) This is true even of those portions that inculpated Dixon and Lee. Under the
circumstances related by the statements, inclusion of their participation was specifically
disserving to Johnson’s interest by implicating him in a conspiracy, and in retaliatory
shootings that were premeditated and inferentially gang related; and it was not
exculpatory, self-serving, or collateral. (Compare People v. Samuels (2005) 36 Cal.4th
96, 120-121 with People v. Lawley, supra, 27 Cal.4th at pp. 152-154.)
The statements also met the trustworthiness requirement. “In addition to the
‘reasonable assurance’ of the veracity that ordinarily flows from a person’s interest in not
being criminally implicated [citation], the circumstances surrounding [Johnson’s]
statements confirm their reliability.” (People v. Arceo (2011) 195 Cal.App.4th 556, 577.)
“[T]he least reliable circumstance is one in which the declarant has been arrested and
attempts to improve his situation with the police by deflecting criminal responsibility
onto others…. However, the most reliable circumstance is one in which the conversation
occurs between friends in a noncoercive setting that fosters uninhibited disclosures.
[Citations.]” (Greenberger, supra, 58 Cal.App.4th at p. 335.) Here, the statements were
made by Johnson to his lover, on one occasion while the two lay in bed.
It is true that Agustin’s recitation of what she recalled Johnson telling her was, in
certain respects, at odds with other evidence presented at trial. This was not fatal to
admission of the challenged evidence, however. When evidence is offered under a
hearsay exception, the trial court must determine, as a preliminary fact, that the declarant
made the statement as represented. (People v. Cudjo, supra, 6 Cal.4th at p. 608.) This
determination “is governed by the substantial evidence rule. The trial court is to
determine only whether there is evidence sufficient to sustain a finding that the statement
was made. [Citation.] As with other facts, the direct testimony of a single witness is
sufficient to support a finding unless the testimony is physically impossible or its falsity
165.
is apparent ‘without resorting to inferences or deductions.’ [Citations.][97] Except in
these rare instances of demonstrable falsity, doubts about the credibility of the in-court
witness should be left for the jury’s resolution; such doubts do not afford a ground for
refusing to admit evidence under the hearsay exception for statements against penal
interest. [Citations.]” (Id. at pp. 608-609.)
The discrepancies here are such only when Johnson’s reported statements are
compared with other evidence presented at trial. Even under pre-Crawford analysis,
however, the question is whether hearsay evidence “‘possess[es] indicia of reliability by
virtue of its inherent trustworthiness, not by reference to other evidence at trial.’
[Citation.]” (Lilly, supra, 527 U.S. at p. 138 (plur. opn. of Stevens, J.), italics added.)
Here, the discrepancies did not negate all possibility that, if Johnson claimed to be
involved in the various shootings, he was telling the truth. (See People v. Cudjo, supra, 6
Cal.4th at pp. 607-608.) Rather, the trial court (and, ultimately, the jury) reasonably
could have concluded Johnson did indeed tell Agustin what happened, but she
misunderstood or misrecollected some of the details. (See id. at p. 607.)
Because Johnson’s statements qualified as declarations against interest and
satisfied the trustworthiness requirement, they were properly admitted against Dixon and
Lee. This is so regardless of whether Dixon and Lee were present when the statements
were made. (See, e.g., People v. Samuels, supra, 36 Cal.4th at pp. 120-121; People v.
Arceo, supra, 195 Cal.App.4th at pp. 563, 576-578; People v. Cervantes, supra, 118
Cal.App.4th at pp. 166-167, 174-177; Greenberger, supra, 58 Cal.App.4th at pp. 326,
336-337.) The trial court did not err in admitting the evidence.
97 The trial court ruled Agustin was a potential accomplice only with respect to the
counts that charged active participation in, or conspiracy to actively participate in, a gang.
Defendants do not now challenge this ruling. As a result, her testimony did not
potentially require corroboration with respect to the counts that charged the various
shootings.
166.
The trial court similarly did not err in concluding that certain of the statements
made by Johnson to Lee and/or Dixon in Agustin’s presence were admissible as adoptive
admissions.98 Pursuant to Evidence Code section 1221, “Evidence of a statement offered
against a party is not made inadmissible by the hearsay rule if the statement is one of
which the party, with knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.”
“There are only two requirements for the introduction of adoptive admissions:
‘(1) the party must have knowledge of the content of another’s hearsay statement, and
(2) having such knowledge, the party must have used words or conduct indicating his
adoption of, or his belief in, the truth of such hearsay statement.’ [Citation.] ‘[A] typical
example … is the accusatory statement to a criminal defendant made by a person other
than a police officer, and defendant’s conduct of silence, or his words or equivocal and
evasive replies in response. With knowledge of the accusation, the defendant’s conduct
of silence or his words in the nature of evasive or equivocal replies lead reasonably to the
inference that he believes the accusatory statement to be true.’ [Citation.]” (People v.
Silva (1988) 45 Cal.3d 604, 623-624, italics omitted.) “For the adoptive admission
exception to the hearsay rule to apply, no ‘direct accusation in so many words’ is
necessary. [Citation.] Rather, it is enough that the evidence showed that the defendant
participated in a private conversation in which the crime was discussed and the
circumstances offered him the opportunity to deny responsibility or otherwise dissociate
98 Dixon suggests he did not receive constitutionally required notice to litigate
adoptive admissions as a theory of admissibility, but we disagree. The record clearly
shows this theory of admissibility was addressed by the court and counsel at trial. We do
not hold evidence was admissible as an adoptive admission if the trial court did not so
find (see, e.g., People v. Lucas (1995) 12 Cal.4th 415, 462; People v. Alcala (1992) 4
Cal.4th 742, 795-796; but see People v. Brown (2004) 33 Cal.4th 892, 901), but rather
conclude the trial court properly determined that some of the challenged evidence was
admissible under this exception to the hearsay rule.
167.
himself from the crime, but that he did not do so. [Citation.]” (People v. Davis (2005) 36
Cal.4th 510, 539.)
There can be little doubt that Johnson’s conversations with Lee, Dixon, or both, as
recounted by Agustin, resulted in adoptive admissions on the part of the nondeclarant
defendant(s). (See People v. Fauber, supra, 2 Cal.4th at pp. 851-853.)99 To the extent
indicia of reliability were required even though the statements were not testimonial (see
People v. Sully (1991) 53 Cal.3d 1195, 1232-1233 [pre-Davis confrontation clause
analysis]), they were sufficient for the reasons discussed with respect to the declarations
against penal interest, ante.
Admission of the various statements as declarations against penal interest and/or
adoptive admissions was not an abuse of discretion under state law, whether as hearsay
exceptions or under Evidence Code section 352. (See People v. Geier, supra, 41 Cal.4th
at p. 585.) As the statements were nontestimonial, their admission did not violate the
confrontation clause. Moreover, their admission did not violate due process or render the
trial fundamentally unfair. Any unreliability in Agustin’s recollection and recitation of
the statements was amply brought to the jury’s attention through cross-examination. (See
People v. Gutierrez (2009) 45 Cal.4th 789, 813.)
In light of the foregoing, we need not determine whether any of the statements
were also properly admitted under the exception to the hearsay rule for coconspirator
statements. (Evid. Code, § 1223.) Assuming evidence was erroneously admitted under
that exception (for instance, in the case of statements concerning the Reese robbery,
because the conspiracy had ended), the error was harmless under any standard. There
was ample evidence, aside from Johnson’s identification of Lee and Dixon as Country
99 Defendants implicitly concede their own statements, if found by the jury to have
been made as testified to by Agustin, constituted admissions under Evidence Code
section 1220.
168.
Boy Crips, that the pair were gang members; the Pacheco Road shootings were not
charged against any defendant, and Dixon was not charged with the shooting at Monterey
and Inyo; and evidence of what was said concerning the Reese robbery was properly
admitted under other hearsay exceptions.
b. Discussions with Lee’s girlfriend
1. Background
Agustin testified about Johnson’s gang activities and what he told her about his
position in the Country Boy Crips. She testified that Lee was his best friend, and
described where Lee lived and meeting his family at Lee’s home. Asked if she had ever
met any of Lee’s girlfriends, Agustin said she had met one. This ensued:
“Q. [by the prosecutor] And did [Lee] refer to her in any certain
way?
“A. He never called -- said -- he said it wasn’t his girlfriend. He
hadn’t given her that title yet.
“Q. So you saw him with a woman that he was involved in like a
dating relationship with. Is that correct?
“A. Correct.
“Q. But he told you that he hadn’t given her the title of girlfriend.
“A. That is correct. [¶] And his girlfriend -- and that girl also told
me the same thing, that she had not earned that title yet. [¶] … [¶]
“Q. She was pregnant with his child, correct?
“A. Yes, that is correct.
“[COUNSEL FOR LEE]: Objection; relevance.
“THE COURT: Response?
“[PROSECUTOR]: This woman has significant relevance in this
case. I’ll make an offer of proof that it’s --
“THE COURT: I’m going to overrule the objection.”
169.
Agustin then testified she did not remember this woman’s name. She also testified
Lee had a son whose mother she had never met.
Agustin subsequently testified that Lee was not as open with her about his gang
activities as Johnson was; however, Lee would talk about his gang activities with Johnson
in the house on Encina Street within earshot of Agustin. Asked if she ever discussed
Lee’s gang activities with the girl to whom Lee had not given the title of girlfriend,
Agustin replied affirmatively. When the prosecutor asked when, counsel for Johnson
objected “as to hearsay as to a conversation with some third party that’s not identified for
any relevant purposes.” Counsel for Dixon and Lee both joined. The prosecutor asserted
it was relevant because it went “to the fact that she was told that she better not talk to his
girlfriend by Corey Johnson about gang activities.” The trial court overruled the
objection.
Lee’s attorney immediately objected on grounds of unreliable and untrustworthy
hearsay, improper declaration against penal interest, improper use of a coconspirator’s
statement, no proper and lawful exception to the hearsay rule, and as denying Lee’s rights
under the Sixth and Fourteenth Amendments. Dixon joined. The prosecutor represented
that she was not offering this particular statement for the truth of the matter, just that
there was a discussion about gang activities and for what happened after. The court
overruled the objection and admitted the evidence “for the limited purpose to explain
what may have transpired after this discussion.”
Agustin then testified that she had the discussion with the person she considered
Lee’s girlfriend, although he never claimed her to be a girlfriend. The court clarified that
the woman was carrying Lee’s child. The prosecutor then elicited that Agustin had a
discussion with this woman about Lee’s role and activities in the gang, and that shortly
after that discussion, Agustin heard from Johnson about it. Johnson told Agustin that she
talked too much.
170.
Counsel for Lee renewed his objection, this time with respect to Johnson’s
statements. Counsel for Dixon joined. The prosecutor represented that the evidence was
coming in for a limited purpose. She further asserted it was not offered for the truth of
the matter and was an admission by Johnson. The court admitted it for that purpose, but
limited it to Johnson. Agustin then testified that Johnson told her she talked too much
and that Lee did not let his girlfriend know anything, so Agustin should not say anything.
During her argument to the jury, the prosecutor discussed the evidence showing
Lee to be a member of the Country Boy Crips. Included were four individuals the
prosecutor termed Lee’s women, whom, she said, played an important role in this case in
one way or the other. In pertinent part, the prosecutor stated: “Saleta Roseburr was the
one that hadn’t earned the title of girlfriend yet even though she was pregnant with his
child. She was also -- that’s Saleta Roseburr, the hostess at Denny’s, and Adrian
Bonner’s friend.” (Italics added.)
2. Analysis
Saleta Roseburr’s relationship with Lee was relevant because of her connection,
however inadvertent, to what happened to Adrian Bonner. It thus was proper for the
prosecutor to seek to show the nature of that relationship. Since Lee told Agustin that
Roseburr was not his girlfriend, the fact Roseburr was pregnant with Lee’s child was
relevant to explain Agustin’s belief Roseburr was his girlfriend.100
There is also some relevance to Johnson’s reaction to Agustin’s discussion of
Lee’s gang activities with Roseburr. Johnson’s active participation in a criminal street
gang was clearly an issue in dispute. Johnson’s actions prohibiting Agustin from
discussing Lee’s gang activities with Lee’s girlfriend demonstrates Johnson’s
100 Lee asserts his trial attorney objected to Agustin’s testimony about Roseburr not
having earned the title of girlfriend. He is incorrect. Counsel objected to the additional
testimony about her being pregnant with Lee’s child.
171.
participation and active involvement in the gang in that it shows him trying to maintain
the clandestine nature of the gang’s activities.
Lee and Dixon do not claim the evidence was prejudicial of itself, and we concur.
Lee’s treatment of Roseburr paled in comparison to other evidence that was admitted, and
the testimony about Agustin’s conversation with Roseburr was, at most, merely
cumulative of the gang evidence. (See People v. Mayfield (1997) 14 Cal.4th 668, 751.)
4. Lee’s Statement to Johnson
Lee claims the trial court erred by admitting a statement Lee made to Johnson
during a break in Agustin’s testimony. Lee further requests that we review the sealed
transcripts of the in camera Pitchess101 hearing held in connection with this issue. Dixon
joins in the claim and the request. The People contend the statement was properly
admitted, and have no objection to our reviewing the Pitchess material.
a. Background
On January 23, 2009, partway through Agustin’s testimony, counsel for Lee
informed the court that, according to a report dated 4:25 p.m. the preceding day, one of
the transporting deputies overheard Lee tell Johnson with respect to Agustin, “you should
have called me and we both should have beaten her ass together.” As the People sought
to use this evidence, Lee brought a Pitchess motion with respect to the two deputies
involved, and requested personnel records in the form of complaints, investigations, or
reports related to falsehoods and truthfulness of the deputies. After an in camera hearing
during which the court reviewed the deputies’ confidential files, the court found no
documents meeting the request.
Counsel for Lee then objected to admission of the evidence. While the issue of
admissibility was pending, counsel for Lee cross-examined Agustin on whether she ever
told Lee how Johnson was treating her. She responded that she mentioned to Lee that
101 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
172.
Johnson was hitting her, and asked him, since he was Johnson’s best friend, to talk to
Johnson so Johnson would not continue abusing her.
At the hearing on admissibility of Lee’s statement to Johnson, the prosecutor
asserted the statement was an admission because it admitted a substantial friendship
existed between Lee and Johnson, and argued the cross-examination of Agustin added
further relevance. The prosecutor agreed with the court that it showed Lee and Johnson
were confederates who would act together to help each other out.
Counsel for Johnson argued the evidence was prejudicial and did not show a
mutual conversation, but rather simply a smart-aleck comment. Counsel for Dixon
asserted Dixon had nothing to do with it, that it could not have been made in furtherance
of a conspiracy because any conspiracy had ended, and that it was prejudicial to Dixon
and should be excluded under Evidence Code section 352. Counsel for Lee joined in the
comments of counsel for Johnson. The prosecutor responded that the statement was a
relevant postconspiratorial action and that it indicated the actual relationship that existed
during the course of the conspiracy. The prosecutor did not deny there was already
testimony that Johnson and Lee were best friends, but argued the statement showed the
two were best friends who would be willing to beat someone together to prevent that
person from exercising a right. In a written brief, the People asserted the statement
should be admitted against Lee only, as an admission. They claimed it was relevant to
show the true nature of the relationship between Lee and Johnson, from Lee’s
perspective, at the time of the events described by Agustin, and to show that Lee’s
behavior was consistent with membership in a criminal street gang.
After further argument, the court ruled the statement could come in as an
admission by Lee relative to the nature of the relationship he had with Johnson, and
relative to the nature of behavior consistent with membership in a criminal street gang.
The court directed that an appropriate limiting instruction be prepared.
173.
The prosecution subsequently called Deputy Maxwell as a witness. The court
confirmed, in the jury’s presence, that the testimony was coming in only with regard to
Lee. Maxwell proceeded to testify that on January 22, 2009, he was assigned to transport
Johnson and Lee to court and then back to their housing units. Agustin was on the
witness stand that afternoon. As Maxwell and Deputy Curiel took Johnson and Lee out
of the courtroom and into the back hallway, Maxwell heard Lee tell Johnson, “You
should have called me and we both should have beaten her ass together.” Johnson did
not respond.
During argument to the jury, the prosecutor stated: “Also during the trial we had a
bailiff that overheard some information when Defendant Lee was being taken out after
court one day and it was after one of those days that Sara Agustin testified about the
domestic violence that was very upsetting to her about what [Johnson] did to her, and Lee
said to Johnson after one of those days you should have called me. We should have
beaten her ass together. Which shows the nature of the relationship between Corey
Johnson and David Lee and a propensity for them to be together and do crimes together.”
In his argument, counsel for Lee pointed out that Lee had sat in court for days, listening
to evidence go before a jury of violent conduct by two codefendants that had nothing to
do with him, and that he made an offhand remark out of frustration. Counsel questioned
the remark’s relevance to the charges. The prosecutor responded that the statement was
important because at this late date, Lee was still seeking Johnson’s approval and to show
he was with Johnson, and that this showed consciousness of guilt.
b. Analysis
1. Pitchess Motion
As noted above, the trial court granted an in camera hearing on Lee’s Pitchess
motion, and found no documents to be disclosed. Lee, joined by Dixon, asks this court to
review the sealed transcripts and document from the in camera proceedings to determine
if the trial court made an adequate record for review and whether any information should
174.
have been disclosed. (See People v. Prince, supra, 40 Cal.4th at pp. 1285-1286; People
v. Mooc (2001) 26 Cal.4th 1216, 1228-1230; People v. Guevara (2007) 148 Cal.App.4th
62, 67-69.) We have reviewed the sealed materials, and conclude the trial court followed
proper procedures. We find no error in its ruling.
2. Admission of Lee’s Statement
Lee and Dixon implicitly concede Lee’s statement to Johnson about Agustin was
admissible against Lee under Evidence Code section 1220. (See People v. Carpenter
(1999) 21 Cal.4th 1016, 1049.) The question is whether the statement was relevant, since
only relevant evidence is admissible. (Evid. Code, § 350.)
“[The] definition of relevant evidence is manifestly broad. Evidence is relevant
when no matter how weak it is it tends to prove a disputed issue. [Citation.] Evidence
may be relevant even though it is cumulative; thus, the only ban on cumulative evidence
is found in Evidence Code section 352. [Citation.]” (In re Romeo C. (1995) 33
Cal.App.4th 1838, 1843; accord, People v. Scheid (1997) 16 Cal.4th 1, 16; People v.
Freeman, supra, 8 Cal.4th at p. 491.)
The prosecution’s theory of the case was that the charged offenses involved
concerted action and, in some instances, conspiracy. The nature of Lee’s relationship
with Johnson was relevant to this theory. Lee’s statement in turn was relevant to
establish the true nature of the relationship at the time of the crimes. It reasonably tended
to show he and Johnson were more than mere associates or friends, but rather had such a
close relationship that Johnson could have called on Lee for assistance in dealing with a
girlfriend who was causing problems.102 In addition, and in light of the gang expert’s
testimony, the trial court also acted within its broad discretion in concluding the
102 We reject the notion these inferences are merely speculative and so cannot be
deemed relevant. (Contrast People v. Allen (1976) 65 Cal.App.3d 426, 434, disapproved
on another ground in People v. Green (1980) 27 Cal.3d 1, 39, fn. 25.)
175.
statement was relevant to show behavior consistent with gang membership. Because the
statement was directed to a prior time, any threat it implicitly contained did not need to
have been conveyed to Agustin for the statement to be probative.
Lee and Dixon say the only uses of the statement were to suggest Lee was the type
of person who might beat someone up, and that he and Johnson had the type of
relationship in which they would engage in violence, both of which purposes violated
subdivision (a) of Evidence Code section 1101.103 Assuming an objection under this
section was adequately stated (see People v. Holloway (2004) 33 Cal.4th 96, 128), we
disagree that the only uses to be made of the evidence were impermissible ones.
Although the evidence might have been used by jurors to draw a forbidden inference, this
is not a sufficient basis upon which to conclude the trial court abused its discretion in
admitting the statement. (See People v. Alvarez, supra, 14 Cal.4th at pp. 215-216.)104
Lee and Dixon argue Lee was simply venting his frustration when he uttered the
statement, and that it showed his mental state at that time, not at the time of the crimes.
Although the statement could be so interpreted, as counsel for Lee argued, this was not
the only reasonable interpretation, nor, under the totality of the circumstances, was it
necessarily the most reasonable one. In any event, the appropriate interpretation was for
the jury.
103 Evidence Code section 1101, subdivision (a) states the general rule that “evidence
of a person’s character or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occasion.”
104 We recognize the prosecutor included a propensity purpose for the evidence in
argument to the jury. As previously noted, however, the propriety of the admission of
evidence does not depend on counsel’s later argument to the jury. (People v. Harrison,
supra, 35 Cal.4th at p. 230.) Moreover, the jurors here were never instructed that they
could use the evidence improperly, but rather were told statements of the attorneys were
not evidence.
176.
Finally, Lee and Dixon say the evidence should have been excluded because any
minimal probative value was greatly outweighed by the prejudicial effect.105 Again, we
disagree.
Jackson testified that Lee hung out with Johnson, while Agustin testified the two
were best friends. Because the defense vehemently attacked Jackson’s and Agustin’s
credibility and the statement went further toward illustrating the true nature of Lee and
Johnson’s relationship, Lee’s statement was not merely cumulative of other evidence.
Similarly, the statement was not merely cumulative of other gang evidence.
Lee and Dixon say the evidence was prejudicial, especially when coupled with the
evidence of Johnson’s abuse of Agustin. Although admission of the statement did pose
some risk of undue prejudice to Lee (see People v. Garceau (1993) 6 Cal.4th 140, 178,
overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118), we
conclude the evidence’s probative value was sufficiently great to outweigh any
prejudicial effect. We reiterate: “‘“The ‘prejudice’ referred to in Evidence Code
section 352 applies to evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on the issues. In applying
[Evidence Code] section 352, ‘prejudicial’ is not synonymous with ‘damaging.’”’
[Citation.] Evidence need not be excluded under this provision unless it ‘poses an
intolerable “‘risk to the fairness of the proceedings or the reliability of the outcome.’”’
[Citation.]” (People v. Alexander, supra, 49 Cal.4th at p. 905, italics added.)
Here, there was no evidence Lee was ever actually physically abusive toward
Agustin. In fact, she testified Lee was not present on any of the occasions Johnson
abused her, and that Lee never threatened her and she was not afraid of him. This
105 We reject the People’s claim that no Evidence Code section 352 objection was
made at trial. Although counsel for Lee did not specifically mention that statute, the trial
court and prosecution were sufficiently alerted to the issue by the objections and
arguments actually made. (See People v. Clark (1992) 3 Cal.4th 41, 124.)
177.
testimony — concerning, as it did, what in fact took place, as opposed to the challenged
evidence, which did not — had a strong tendency to alleviate any prejudicial linking of
Lee to the physical abuse perpetrated by Johnson. Moreover, insofar as Lee’s statement
was probative of behavior consistent with gang membership, jurors were cautioned that
they could not use evidence of gang activity to conclude a defendant was a person of bad
character or had a disposition to commit crime.
In light of the foregoing, this case stands in sharp contrast to People v. Leon
(2001) 91 Cal.App.4th 812, which is cited by Lee. There, the prosecutor was permitted
to present the testimony of a court interpreter that, while the child who was the alleged
victim of a sexual assault by the defendant was testifying, the defendant was opening and
closing his fingers over the crotch area of his pants. The interpreter did not know if the
defendant was touching his penis and did not see an erection, and the defendant never
opened his pants. Nevertheless, the prosecutor was permitted to argue to the jury that the
defendant was masturbating while the victim was testifying. (Id. at pp. 815-816.) The
Court of Appeal reversed, finding the ambiguous evidence and inflammatory argument to
have confused the issues and inflamed the jury. (Id. at pp. 816-817.)
The circumstances — and the potential for prejudice — are demonstrably different
in the present case. The trial court did not abuse its discretion by admitting Lee’s
statement solely against him.
5. Dupree Jackson’s Testimony
Defendants claim the trial court committed prejudicial error with respect to the
admission of Dupree Jackson’s testimony. First, Dixon says the court erred by denying
him a hearing on the issue of intentional charging delay in conjunction with his motion to
exclude Jackson’s testimony on the ground he was acting as a police agent. Johnson and
Lee join. The People say the trial court properly rejected the substantive claim as a
matter of law; hence, no additional hearing was constitutionally required. Second, Lee
says the trial court erred by permitting Jackson to testify, without sufficient foundation,
178.
regarding cell phone practices of gang members in walk-up shootings. Johnson and
Dixon join. The People say ample foundation was laid, but, if error occurred, it was
harmless in light of the gang expert’s duplicative opinion testimony.
Jackson’s testimony is set out at length in the statement of facts, ante. We address
defendants’ claims in turn.
a. Massiah106
1. Background
Prior to trial, Dixon moved to exclude testimony by Jackson about what Dixon
told him while they were in jail together, on the ground Jackson was an agent of the
government at the time. In their response, the People represented that Dixon and Lee
were celled together from August 25 to August 29, 2007, but that no one intentionally
placed them together in connection with this case, and Jackson was under no directive to
speak to Dixon about this case. Because Dixon was not in custody on this case, as he was
not arrested in connection with it until October 1, 2007, the People argued, there was no
Sixth Amendment violation.
At the hearing on the motion, the prosecutor presented a certified copy of the
felony complaint in this case, showing it was not filed until October 2, 2007. She related
that on August 24, 2007, Dixon and Lee were arrested on charges of vehicle pursuit and
possession of an assault rifle. The next day, Jackson was arrested on a parole violation.
Before he was taken to the jail, he had an interview with the Bakersfield Police
Department in which he implicated Johnson in the McNew Court, and Real Road and
Planz, shootings. Detective Darbee told Jackson to think about whether he would be
willing to testify in this case and, when Jackson expressed some concerns, Darbee told
Jackson he would talk to him about it in a few days. Four days later, on August 29,
Darbee brought Jackson to the police department again. In the meantime, however,
106 Massiah v. United States (1964) 377 U.S. 201.
179.
unbeknown to the police department or the detectives involved from the sheriff’s
department, Dixon and Jackson were placed in the same cell, and Dixon spoke to Jackson
about this case. On August 29, Jackson was again interviewed by the police department
and asked if he would be willing to testify. During this interview, he revealed what
Dixon had told him while they were celled together. That same day, Dixon was moved
out of the cell.
The prosecutor asserted that no one involved with this case asked for Dixon and
Jackson to be celled together, and she offered to present testimony on that point.
Moreover, she argued, even if they were intentionally housed together, that fact would be
irrelevant under the law, because Dixon was not in custody on this case.
Counsel for Dixon represented that Jackson would be brought out to see his parole
officer and talk to a police officer, then would be sent back in to get more information,
and brought out again. Counsel argued he was an informant, and an agent of the police
department. Counsel acknowledged that Dixon was in custody on another charge, but
pointed out he was a suspect in this case because law enforcement had already
interviewed him in April about the McNew Court shootings, plus officers had already
interviewed Agustin. Counsel asked the court to assume a scenario in which a suspect
was charged with something else, and then the authorities decided to hold off filing the
indictment or complaint in order to send in agents to elicit information. Counsel asserted
that just because the authorities were holding off filing should not deprive his client of his
Fifth or Sixth Amendment rights.
The court found no Sixth Amendment violation. Accordingly, it ruled the
statements were admissible.107 Jackson subsequently testified concerning the
107 Lee challenged admission of Jackson’s testimony on statutory grounds, because of
money and assistance Jackson had been given. That issue is not raised on appeal.
180.
circumstances under which he and Dixon were celled together, and statements Dixon
made to him about some of the offenses charged in this case.
2. Analysis
The California Supreme Court has stated:
“The Sixth Amendment [to the United States Constitution] provides
that ‘in all criminal prosecutions, the accused shall enjoy the right … to
have the assistance of counsel for his defense.’
“In Massiah[, supra,] 377 U.S. 201, and its progeny, the United
States Supreme Court held that ‘the government’ — whether federal or
state — ‘may not use an undercover agent to circumvent the Sixth
Amendment right to counsel once’ that right has attached. [Citation.] After
attachment, ‘the Sixth Amendment prevents the government from
interfering with the accused’s right to counsel.’ [Citation.] Before
attachment, by contrast, the constitutional provision is not implicated.
[Citation.]
“The Sixth Amendment right to counsel ‘does not attach until a
prosecution is commenced, that is, “‘at or after the initiation of adversary
judicial criminal proceedings — whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.’”’
[Citations.] It is not enough, for example, that the defendant has become
the focus of the underlying criminal investigation. [Citations.]
“The Sixth Amendment right to counsel, the United States Supreme
Court has … declared, is ‘offense specific.’ [Citation.] That is to say, it
attaches to offenses as to which adversary judicial criminal proceedings
have been initiated — and to such offenses alone. [Citation.]” (People v.
Clair (1992) 2 Cal.4th 629, 657; see also McNeil v. Wisconsin (1991) 501
U.S. 171, 175; Illinois v. Perkins (1990) 496 U.S. 292, 299-300; United
States v. Gouveia (1984) 467 U.S. 180, 187-188; United States v. Henry
(1980) 447 U.S. 264, 270.)
The trial court here implicitly found Dixon’s Sixth Amendment right to counsel
had not attached as to the offenses charged in this case. We examine this conclusion
independently, while scrutinizing underlying findings for substantial evidence. (People
v. Clair, supra, 2 Cal.4th at p. 657.) So reviewed, the trial court’s determination is
correct. Indeed, no other conclusion can be drawn from the record.
181.
Dixon says, however, that the trial court erred in accepting the prosecutor’s view
that no hearing on intentional charging delay was required. In reality, the record shows
the prosecutor never expressed such a view. Rather, her argument was that because
Dixon’s Sixth Amendment right to counsel had not attached, whether Jackson was
merely listening to Dixon or actively eliciting information from him was irrelevant, and
so no hearing needed to be held to make that determination. (See United States v. Henry,
supra, 447 U.S. at pp. 271-272 & fn. 9 [distinguishing, in case involving postindictment
communications, between informant who is passive listener and one who deliberately
elicits information].)
We assume, for purposes of our analysis, that intentional and unnecessary delay by
the government in bringing charges can implicate a defendant’s Sixth Amendment right
to counsel. (See Flittie v. Solem (8th Cir. 1985) 775 F.2d 933, 943; State v. McNeil (Wis.
1990) 454 N.W.2d 742, 749-750; but see People v. Webb, supra, 6 Cal.4th at pp. 527-
528.) In the present case, however, counsel for Dixon merely asked the court to assume a
scenario in which there was such delay. Defense counsel neither asserted that intentional
delay occurred (or even may have occurred) in the present case, nor asked for a hearing
on that issue. On the record before us, the court was under no duty to hold such a hearing
absent a request. Accordingly, although defendants clearly raised a substantive Massiah
claim, they cannot predicate error on the trial court’s denial of the motion without
holding a hearing. (See People v. Wilson (2005) 36 Cal.4th 309, 347-348; cf. People v.
Hoyos (2007) 41 Cal.4th 872, 897-898, overruled on another ground in People v.
McKinnon, supra, 52 Cal.4th at pp. 637-643; People v. Hughes (2002) 27 Cal.4th 287,
325-326.) The court did not err by finding no Sixth Amendment violation, and
defendants are entitled to neither reversal nor remand for a hearing on delay.108
108 Because the record is insufficient to allow us to determine whether unnecessary
and intentional delay could have been established such that Jackson’s testimony should
have been excluded, we cannot assess whether defense counsel were ineffective in failing
182.
b. Testimony Concerning Cell Phone Practices
1. Background
During the course of his testimony, Jackson explained that during walk-up
shootings, sometimes people remain in the car. Such a person would be the driver, whose
role would be to take the shooters to the rival gang territory and, after the shooting, get
them quickly back to their own “hood.” Asked if there was ever communication between
the driver and those who get out of the car to do the shooting, Jackson replied
affirmatively. When counsel for Lee objected that the testimony lacked foundation, the
court confirmed with Jackson that the answer was based on Jackson’s personal
experience.
Counsel for Lee then took Jackson on voir dire. Jackson testified that he had
never done a shooting, but he had been the driver in a gang shooting and, when he was
the driver, had communicated with the people who were out to do the shooting. Jackson
did not know the name of the victim in the incident in which he participated and could
not recall when it happened. The court found that Jackson’s lack of recollection went to
weight rather than admissibility, and allowed the testimony.
The prosecutor then elicited, without objection, that Jackson had also talked to
other people who had participated in such shootings, and that they had told him about
what they did. Based on what he had been told and what he had seen, Jackson testified
that the driver would communicate with the shooter on a cell phone. The kind of
information exchanged would be where someone was and what he was doing, to have the
car started by the time the shooter got back, and the like. The trial court granted the
defense continuing objections on foundation and speculation grounds, but overruled those
objections.
to request a hearing or whether defendants were prejudiced thereby. Accordingly, we
reject defendants’ alternative claims of ineffective assistance of counsel.
183.
On cross-examination by counsel for Lee, Jackson testified that on the occasion he
was the driver, the two who did the shooting ran back to the car and did not call him on
the cell phone. On another occasion, however, he was called to come to the scene to pick
up someone who had done a shooting.
Senior Officer Sherman subsequently testified that during walk-up shootings,
communication with other members of the gang is usually done by phone. There must be
communication; if things go wrong and one of the perpetrators has to take off or is
caught, he has to be able to communicate with the other parties involved. The person
with the vehicle is not just going to sit there and wait. He has to be told to go to another
location or leave, because otherwise he is sitting in rival gang territory and is a potential
target both for rival gang members and for the police. Sherman related that if law
enforcement comes into an area because of a shooting, they do not immediately go to the
crime scene, but scope out the area, looking for vehicles and people who are out of place.
2. Analysis
“Subject to [Evidence Code] Section 801 [concerning opinion testimony of expert
witnesses], the testimony of a witness concerning a particular matter is inadmissible
unless he has personal knowledge of the matter. Against the objection of a party, such
personal knowledge must be shown before the witness may testify concerning the
matter.” (Evid. Code, § 702, subd. (a).) Any admissible evidence, including the
witness’s own testimony, may be used to show the requisite personal knowledge. (Id.,
subd. (b).) Although the testimony must be excluded unless there is evidence sufficient
to sustain a finding that the witness has such knowledge, a court may exclude testimony
for lack of personal knowledge only if no jury reasonably could find the witness has such
knowledge. (People v. Anderson (2001) 25 Cal.4th 543, 573.)
“A lay witness may testify to an opinion if it is rationally based on the witness’s
perception and if it is helpful to a clear understanding of his testimony. (Evid. Code,
§ 800.)” (People v. Farnam (2002) 28 Cal.4th 107, 153.) “‘[P]erception’” is “the
184.
process of acquiring knowledge ‘through one’s senses’ [citation], i.e., by personal
observation.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1306, fn. omitted.) Thus,
“[f]or a nonexpert to be competent to give an opinion … he must be testifying about facts
that he has personally observed ….” (Manney v. Housing Authority (1947) 79
Cal.App.2d 453, 459.)
In contrast, “California law permits a person with ‘special knowledge, skill,
experience, training, or education’ in a particular field to qualify as an expert witness
(Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under
Evidence Code section 801, expert opinion testimony is admissible only if the subject
matter of the testimony is ‘sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.’ (Id., subd. (a).)” (People v. Gardeley (1996) 14
Cal.4th 605, 617 (Gardeley).) “Evidence Code section 801 limits expert opinion
testimony to an opinion that is ‘[b]ased on matter … perceived by or personally known to
the witness or made known to [the witness] at or before the hearing, whether or not
admissible, that is of a type that reasonably may be relied upon by an expert in forming
an opinion upon the subject to which [the expert] testimony relates .…’ (Id., subd. (b).)”
(Ibid.)
“Expert testimony may … be premised on material that is not admitted into
evidence so long as it is material of a type that is reasonably relied upon by experts in the
particular field in forming their opinions. [Citations.]” (Gardeley, supra, 14 Cal.4th at
p. 618.) Although material that forms the basis of an expert’s opinion testimony must be
reliable, once that threshold requirement is satisfied, matter that is ordinarily inadmissible
— including hearsay — can form the proper basis for an expert witness’s opinion
testimony. (Id. at pp. 618-619.)
A trial court’s decision whether to admit lay opinion or the testimony of an expert,
as well as its ruling on the question of an expert’s qualifications, are reviewed for abuse
of discretion. (People v. Lindberg, supra, 45 Cal.4th at p. 45; People v. Wallace (2008)
185.
44 Cal.4th 1032, 1062-1063; People v. Mixon (1982) 129 Cal.App.3d 118, 127; see
People v. Medina (1990) 51 Cal.3d 870, 887, affd. sub nom. Medina v. California (1992)
505 U.S. 437.)
The parties proceed from the premise that Jackson was testifying as a lay witness.
To the contrary, we believe his testimony concerning gangs and the Country Boy Crips in
general was that of an expert. His uncontradicted testimony showed he had been a
member of the Country Boy Crips for years, and had been around and observed gang
activity since his childhood. This certainly gave him “special knowledge” and
“experience” on the subject to which his testimony related, as is required by Evidence
Code section 720, subdivision (a) in order to qualify someone as an expert, and the fact
such knowledge and experience were shown by his own testimony is of no import (see
id., subd. (b)). That he was being proffered as an expert on the subject was made clear
when, in response to a relevance objection raised to questions about what he saw as a
child, the prosecutor responded, “He became a gang member and he’s going to testify
about expertise in gangs.” Although somewhat awkwardly phrased, the trial court
overruled the objection. The defense’s recognition that he was testifying as an expert at
least on some subjects is shown by the fact no hearsay objection was interposed when he
testified he had talked to people who were involved in shootings and they told him about
what they did. Such an objection would not have been futile had Jackson not been
testifying as an expert, and the subsequent objection on foundation grounds simply
indicates defense counsel felt the foundation was insufficient even where an expert was
concerned.109
109 Although the better practice would have been for the prosecutor to offer him, and
the trial court to rule he was qualified to testify, as an expert witness in the jury’s
presence, it does not appear this occurred with any of the parties’ experts. Thus, the fact
there was no formal or express acknowledgement that Jackson was testifying as an expert
does not suggest he was not so testifying.
186.
Since Jackson was testifying as an expert witness pursuant to Evidence Code
section 801, Evidence Code section 702’s requirement of personal knowledge, and
Evidence Code section 800’s limitations on lay opinion testimony, did not apply. (See
People v. Smith (2005) 35 Cal.4th 334, 363.) The subject of his testimony was a proper
one for expert testimony (see Gardeley, supra, 14 Cal.4th at p. 617), and we conclude the
foundation with respect to cell phone practices was adequate to allow admission of the
testimony (see id. at p. 620).
Were we to find error, however, we would conclude it is not reasonably probable a
result more favorable to defendants would have been reached in its absence (see People
v. Prieto (2003) 30 Cal.4th 226, 247 [applying Watson standard to erroneous admission
of expert testimony]; People v. Brown (1985) 40 Cal.3d 512, 535 [same re: inadequate
foundation], revd. on another ground by California v. Brown (1987) 479 U.S. 538), and
that admission of the evidence did not render the trial so fundamentally unfair as to
violate due process (Randolph v. People of the State of Cal. (9th Cir. 2004) 380 F.3d
1133, 1147 [violation of state evidence rules is insufficient to constitute due process
violation]). The challenged testimony was based at least to some extent on what Jackson
personally had perceived, Sherman testified concerning cell phone use in walk-up gang
shootings, and the People presented evidence concerning the activity of specific cell
phones around the time and in the vicinity of the McNew Court shootings.
6. Shannon Fowler’s Car
Lee contends the trial court erred by admitting evidence that Shannon Fowler
owned a burgundy 2006 Toyota Corolla around the time of the Real Road and Planz
shooting. Lee says the evidence was irrelevant because, aside from its color, this car did
not match the descriptions given by eyewitnesses to the shooting of the car used therein.
Lee says admission of the evidence violated his right to a fair trial, because the evidence
served to confuse the jury and create the illusion Fowler’s car was used in the shooting,
which in turn explained away the absence of evidence linking defendants to the suspect
187.
car. Johnson and Dixon join. The People say Lee’s claim is based on a “selective view
of the prosecution’s case,” and that the evidence was properly admitted.
a. Background
On March 21, 2007, Officer Shaff went to Lee’s house to investigate the shooting
of Lee’s vehicle. Shaff did not recall seeing a burgundy or red car in the garage or
immediate area. During the course of his investigation in this case, Senior Deputy Little
did not come across any red or burgundy vehicles that were registered to Lee.
Adrian Bonner testified that on the afternoon he was shot, he saw Lee in a
burgundy car as he was leaving the parking lot of the Taco Bell where he had eaten. The
car Lee was driving was a small, four-door burgundy Suzuki or Hyundai Elantra. Bonner
clarified that he was not saying for sure it was that kind of car; he was just trying to give
an example of what the car looked like. It had rounded edges and a boxy roof. It was
reddish burgundy. It was not brand new, but was a newer model, which to Bonner meant
2001 and more recent. It possibly could have been a 2005 automobile. It had newer
license plates. Bonner was able to see into the car; only Lee was inside.
Approximately 15 to 20 minutes later, when Bonner was stopped for a red light at
Real Road and Planz, he was shot. Out of the corner of his eye, he saw a burgundy
vehicle passing on the passenger side of his vehicle. He could not see anyone inside,
because the vehicle was driving away. He did not know if it was the same car he had
seen Lee driving earlier, although he got a good look at the color and believed it was the
same as the car Lee had been driving.
Bonner recalled telling the grand jury that it was a burgundy car and he could not
see how many people were inside because the windows were tinted. At trial, however, he
testified that he may have thought the windows were tinted because of how dark it was
188.
getting, how far away the car was, and the direction it was going. He thought there may
have been a shadow making the window look tinted.110
Christopher Calloway witnessed the Bonner shooting. He described the car from
which the shots were fired as a burgundy color, maybe a newer model Ford Taurus. To
him, newer model meant the later 1990’s or early 2000’s. He believed the car was
“[s]omething of [the] nature” of a Ford Taurus. The car looked more rounded, not more
boxy and edgy. The paint was not new or old, but instead was in “[w]ell-kept shape.”
Ruben Gonzaga also witnessed the shooting. He considered the car “mostly a
cherry red,” possibly a Chevrolet.
Talia Zarate was another witness to the shooting. She testified the car from which
the shots were fired was a small four-door vehicle, and like a maroon or cranberry color.
She did not remember the type, and did not recall telling officers that it looked to be a
late 1990’s Ford Taurus.
Bryan Kunzmann also saw the shooting. He described the car at trial as either a
dark red or burgundy color, late model, and like a Ford Taurus or with that kind of
rounded body style. It had four doors.
During the time Agustin was with Johnson, she saw Lee in various automobiles.
His own vehicle was black. He told her that he rented vehicles. The one she saw him in
the most was a powder blue Magnum. She never saw Lee drive a red vehicle.
On August 23, 2007, Senior Officer Findley responded to an apartment complex in
the 200 block of Eye Street upon learning that the Nissan involved in a pursuit had been
reported stolen from that address. Parked in the lot at the back of the apartment complex
about 8:30 that night was a red car. Findley took photographs of the area that included
110 Bonner admitted that the first time he said the window’s darkness may have been
caused by a change of light and not tinting was at trial.
189.
the car. He was not aware of a photograph of the car ever being shown to Bonner or any
of the witnesses to Bonner’s shooting.
Jackson testified that he had only seen Lee in two different cars. One was a
brownish or goldish Lexus with tinted windows. The other was a red car. Jackson saw
Lee in the red car around June, in the three-month period Jackson was out of custody. It
was a newer — possibly 2003 to 2005 — red compact car, like a Toyota or something
similar. He did not know the model. It was a shiny red, although not a bright red. Lee
told Jackson he had rented the car. On August 23, 2007, Jackson saw Dixon and Bus Loc
in a red car that looked like a Toyota. He thought it was the same car he had previously
seen parked behind some apartments on Eye Street. It looked like the same car he had
seen Lee driving two or three times.
Shannon Fowler testified that in August 2007, she lived in an apartment on Eye
Street. She had a burgundy Toyota Corolla. Over defense objection that the car was
irrelevant because it had never been identified by anyone as being involved in any
shootings, Fowler testified that the car was a four-door 2006 model, and that she believed
it was the only red car that belonged to the occupants of the apartments at the time. She
had control of the only set of keys, but let her brothers drive the car whenever they
wanted. Fowler got the car at the end of 2006, and had it for almost a year. It did not
have tinted windows. At some point after August 2007, it was repossessed.
Over defense objection, Fowler identified photographs as being of her car, which
she co-owned with her boyfriend, who was incarcerated at the time.111 The photographs
111 Counsel for Johnson asked for an offer of proof as to what witness would identify
the car as being one involved in any shooting. Asked to respond, the prosecutor stated:
“Your Honor, Dupree Jackson -- I don’t really want to go into this in front of this
witness. I think this is unfair and I think the evidence is obvious.” The court then
overruled the defense objections. We cannot help but note that the prosecutor tended to
respond to relevance objections by stating her belief that the evidence in question was
relevant. Since it was the court’s duty to make the necessary rulings, it would have been
190.
depicted the vehicle as it looked in August 2007. The photographs were admitted over
defense objection. Fowler identified them as having been taken at the Orange County
Police Department in connection with her prior boyfriend’s case.
Fowler acknowledged being acquainted with Lee, but denied ever having a
romantic relationship with him. He never telephoned her from jail, and she never gave
him a ride in her red car. His clothes were never in her car. To impeach Fowler, the
prosecutor played a recorded telephone call made from Lee, who was in jail, to a person
whose voice Sherman recognized as being that of Fowler. In the course of the
conversation (which made it apparent Fowler and Lee had an intimate relationship),
Fowler mentioned Lee’s brother getting Lee’s clothes from her car.
Detective Heredia was involved in attempting to locate the red car that was used in
the shooting of Adrian Bonner. On January 14, 2009, he received information regarding
Fowler, and then interviewed her. As a result, he contacted the Orange County Sheriff’s
Department, got the license number of a vehicle that belonged to her, and eventually
obtained photographs of the vehicle that were taken in 2007. Heredia ran a DMV
registration check on the license number, and learned Fowler was one of the registered
owners of the car from February 8, 2007, to February 8, 2008. Heredia learned the car
had been assigned a new license plate on April 24, 2008, and he learned the name of the
new owner. Heredia located the car on January 16, 2009, at an address in Bakersfield.
The car had tinted windows and a fin in the back, which it did not have in the Orange
County photographs. Over relevancy objections, photographs of the car as it appeared
when Heredia found it were admitted into evidence. Heredia was unable to say how the
car appeared on April 11, 2007. He neither showed photographs of the car to the
witnesses to the Bonner shooting nor directed anyone to do so.
preferable for it to do so on a basis other than the prosecutor’s determination of
relevance.
191.
Adrian Bonner was recalled to the stand, and testified that he was fairly familiar
with makes and models of cars, and thought Lee was in a burgundy Suzuki Forenza when
Bonner saw him about 20 minutes before the shooting. At the prosecutor’s request,
Bonner had looked on the Internet for photographs of Suzuki Forenzas. He found some,
and confirmed they were consistent with the car he saw. On cross-examination, Bonner
testified that he could “pretty much” tell the difference between a Suzuki Forenza and a
Toyota.
Shown photographs of the car that Heredia had taken on January 16, 2009, defense
witness Kevin Griffith testified it was not the car he saw involved in the shooting on
August 11, 2007, nor was it the one he saw later that night. Griffith’s best recollection of
the car involved in the shooting was that it was like a red Nissan Sentra. The paint on the
hood of the trunk was kind of bleached out or oxidized by the sun. The car looked “fairly
newer” to him, but he could not tell the age by looking at it.
In her argument to the jury, the prosecutor showed side-by-side photographs of
Fowler’s car before it was sold and a Suzuki Forenza. The prosecutor argued that at a
glance, the two cars were almost identical, and she pointed out that Kunzmann said the
car involved was a Toyota Corolla.112 She further told jurors that Heredia found the car
during the course of trial, which was why photographs of it were not shown to the various
witnesses. Without objection, she asserted: “[A]nd Martin Heredia tracked down that
car and found out that that is the red car that they used to shoot Adrian Bonner in.”
(Italics added.) Defense counsel countered by arguing it was not the same car and there
was no evidence linking Fowler’s car to the one used in the shooting.
b. Analysis
As previously stated, “‘Evidence is relevant when no matter how weak it may be,
it tends to prove the issue before the jury.’ [Citation.]” (People v. Freeman, supra, 8
112 This was a reference to the description Kunzmann gave in his 911 call.
192.
Cal.4th at p. 491.) Defendants cite People v. Cox (2003) 30 Cal.4th 916 (Cox),
disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at page 421,
footnote 22, as support for their claim evidence that Fowler’s car was irrelevant. We find
Cox dispositive and supportive of the trial court’s ruling.
In Cox, a witness testified that she and the defendant often went camping, and that
the defendant had handcuffs, guns, and a knife in his car. When the prosecutor sought to
ask her how many guns, the defense objected on relevance grounds arguing that, because
the witness would testify that the defendant stabbed the victims, there was no evidence
guns were used. The trial court sustained the objection on Evidence Code section 352
grounds. It later reversed its ruling, however, reasoning that because the cause of death
was not known, the prosecution should be allowed to show the defendant had instruments
that would allow him to overpower and kill his victims. (Cox, supra, 30 Cal.4th at
p. 955.)
On appeal, the defendant contended the introduction of the three guns found
during the search of his car was prejudicial error, because the guns were never shown to
have any connection with the commission of the charged offenses. (Cox, supra, 30
Cal.4th at p. 955.) The California Supreme Court rejected the argument, stating:
“In People v. Riser (1956) 47 Cal.2d 566 [(Riser), disapproved on
other grounds in People v. Morse (1964) 60 Cal.2d 631, 639, fn. 5, 652 &
fn. 17 & People v. Chapman (1959) 52 Cal.2d 95, 98], the defendant
murdered two people during a robbery. The killing was committed with a
Smith and Wesson .38-caliber Special revolver. The gun was never
recovered. [Riser, at p. 573.] Riser was found with three holsters, one of
which could hold a .38-caliber Smith and Wesson Special revolver. Riser
also possessed a Colt .38-caliber revolver, which could not have been the
murder weapon. (Id. at p. 577.) We stated the rule of admissibility as
follows: ‘When the specific type of weapon used to commit a homicide is
not known, it may be permissible to admit into evidence weapons found in
the defendant’s possession some time after the crime that could have been
the weapons employed. There need be no conclusive demonstration that
the weapon in defendant’s possession was the murder weapon. [Citations.]
When the prosecution relies, however, on a specific type of weapon, it is
193.
error to admit evidence that other weapons were found in his possession,
for such evidence tends to show, not that he committed the crime, but only
that he is the sort of person who carries deadly weapons. [Citations.]’
[Citation.] Because the murder weapon was known, we ruled that the
admission of the Colt .38-caliber revolver was error, but such error was not
prejudicial. [Citation.]
“Here, it is not known how the three victims were killed. Although
the prosecutor argued that the evidence pointed to a stabbing, such
argument did not preclude the reasonable possibility that one or all three of
the victims had been shot. [Citation.]
“Moreover, given [other evidence], it is also reasonable to infer that
defendant, who had unfettered access to three weapons, may have used the
same to get [victims] into his car and keep them in his car during the drive
to the location of their murder. [¶] … [¶]
“Here, the guns were relevant either as possible murder weapons, or
as weapons that could have been used to coerce the victims into defendant’s
car or otherwise subdue them, ‘in furtherance of the criminal plan’ to kill
them. There was no error in admitting the guns in evidence.” (Cox, supra,
30 Cal.4th at pp. 955-957, italics added.)
Defendants highlight the italicized portion of Riser. In Riser, however, the
prosecution’s own witness established that the bullets found at the scene of the crime
were fired from a Smith and Wesson .38 Special revolver, and not from either the
Colt .38 or the P38 that the trial court admitted into evidence. (Riser, supra, 47 Cal.2d at
p. 577.) The high court’s statement about the prosecution relying on a specific type of
weapon must be read in light of those facts. Where the evidence is not conclusive, as in
Cox, the prosecutor’s argument of a specific theory does not fall within the Riser holding,
because “[t]he trier of fact is not limited by any hierarchy of theories selected by the
prosecution.” (People v. Manson (1976) 61 Cal.App.3d 102, 207, cited with approval in
Cox, supra, 30 Cal.4th at p. 956.)
People v. Farnam, supra, 28 Cal.4th 107, illustrates our reasoning in this regard.
In that case, the defendant was arrested, and a knife found in his possession, about two
months after the homicide. When the prosecution sought admission of the knife to show
194.
it could have been the tool used to cut telephone cords at and gain entry into the victim’s
house, the defendant objected on relevance, due process, and Evidence Code section 352
grounds, arguing no connection between the knife and the crimes could be established.
The trial court overruled the objection, and a criminalist then testified that, although the
knife could not be conclusively identified as having been used, it could have been used.
(People v. Farnam, supra, 28 Cal.4th at p. 156.)
On appeal, the defendant claimed the trial court abused its discretion and denied
him due process by admitting the knife and related testimony, since the knife was
irrelevant and its improper introduction led jurors to infer he was the murderer simply
because he possessed a similar knife two months after the homicide. (People v. Farnam,
supra, 28 Cal.4th at p. 156.) The California Supreme Court rejected the claim, finding
that evidence the defendant possessed a knife two months after the crimes, coupled with
evidence the perpetrator used a sharp instrument consistent with the knife, tended to
establish the defendant was the perpetrator. The court observed that the fact many people
may also have possessed such a knife might diminish the strength of the evidence, but did
not make it irrelevant. (Id. at pp. 156-157; see also People v. Freeman, supra, 8 Cal.4th
at p. 491113.) That the prosecution could not conclusively connect the knife to the crime
scene did not matter, because the knife could have been the one used. (Farnam, at
p. 157.) Furthermore, admission of the knife was not error under Evidence Code
section 352, because, in light of the criminalist’s testimony, the trial court reasonably
could have concluded the jury would not be confused or misled. (Farnam, at p. 157.)
Thus, the court concluded, “although the probative value of the knife was not that strong,
the danger of confusion, speculation, or prejudice was minimal. We find no abuse of
113 In People v. Freeman, supra, 8 Cal.4th at pages 490-492, the state high court
rejected the argument that evidence of a garbage bag found in the defendant’s car shortly
after a robbery was irrelevant because no one identified it as having been used in the
robbery, and numerous people must possess such common items in their cars.
195.
discretion and no deprivation of defendant’s due process rights.” (Ibid.) This was so
even though the criminalist testified that, in his opinion, any other sharp, single-bladed
object, including a scalpel, kitchen knife, or scissors blade, could have cut the objects at
the crime scene. (Id. at p. 157, fn. 26.)
In the present case, Bonner and the eyewitnesses to his shooting gave a variety of
descriptions of the car involved. Although none of the descriptions or other evidence
established that Fowler’s car was used, neither did they eliminate that possibility.
Because the evidence did not establish the specific type of car used, Riser is not
controlling.
The evidence showed more than that Lee merely was acquainted with someone
who had a burgundy car. Rather, a reasonable inference could be drawn that he had an
intimate relationship, during the relevant timeframe, with the owner of such a car, and
that she let other people use her vehicle. Under the circumstances, evidence concerning
Fowler’s car was relevant, as it had some tendency in reason to show Lee had access to a
car that may have been the one used in the shooting, and thus that he was involved in the
crime. Although the probative value of the evidence was not great since no one could
identify Fowler’s car as the car used in the shooting, there was no danger the evidence
would be used as improper character or disposition evidence, as is a possibility where
possession of weapons is involved. (See People v. Barnwell (2007) 41 Cal.4th 1038,
1055-1056; People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393.) Moreover, in
light of the various descriptions of the car involved and the fact Griffith said Fowler’s car
was not the one used, there was, contrary to defendants’ argument, little danger of
confusion, speculation, or prejudice.
It is true the prosecutor went too far in arguing Heredia found out Fowler’s car
was the one used in the shooting. Heredia’s testimony suggested nothing of the sort.
This did not affect the evidence’s admissibility, however. (People v. Harrison, supra, 35
Cal.4th at p. 230.) Defendants did not object to the prosecutor’s assertion, but reasonably
196.
countered her argument with argument emphasizing the lack of evidence linking
Fowler’s car to the shooting. Admission of the evidence neither constituted error under
state law nor a deprivation of defendants’ rights to due process and a fair trial.
7. Gang Experts’ Testimonies
The testimonies of the gang experts are set out in the statement of facts, ante.
Defendants now challenge portions of the testimonies’ content, as well as the sufficiency.
a. Lee’s Tattoo
Lee challenges the admission of evidence concerning his tattoo. He says the
prosecution’s gang experts should not have been permitted to testify he had a tattoo, or
that it was a gang tattoo and indicated Lee’s involvement in shootings or criminal
activity. Lee further contends introduction of his purported admissions regarding the
tattoo violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and his constitutional
right against self-incrimination. Dixon joins both arguments. The People say the trial
court did not err in admitting the evidence, and, assuming Miranda was implicated, any
error was harmless beyond a reasonable doubt.
1. Background
Lee moved, in limine, to preclude any mention of his tattoo without an Evidence
Code section 402 hearing to determine its relevance and admissibility. At the hearing,
Senior Deputy Sherman testified, in pertinent part, to his qualifications as an expert on
gangs in general and the Country Boy Crips in particular. He testified that tattoos show a
gang member’s allegiance to the person’s gang and specific set within the gang.
Common tattoos for Country Boy Crips are “CBC” for “Country Boy Crips,” “NC” for
“Notorious Country,” “W” and “L” for “Watts and Lotus,” and “Madd Blocc.” Country
Boy Crip members may also have tattoos such as “ESK” for “East Side Killer,” “WSK”
for “West Side Killer,” or “BK” for “Blood Killer.” Johnson and Dixon both had
multiple tattoos along those lines.
197.
Lee had one tattoo on his forearm. It depicted a firearm with four apparent bullet
holes and some cartridges. The tattoo was significant to Sherman in a gang context
because Lee’s moniker was Gunner. Although Sherman often saw tattoos of guns on
gang members, such a tattoo was not common among Country Boy Crips. Sherman had
never seen a semiautomatic handgun tattooed on another Country Boy Crip. As for the
number of cartridges (four or five, in Lee’s case), Sherman had noticed on other people
with such tattoos that they could be significant in regard to how many shootings the
person had done and how many times the person had been shot.114 Sherman had read
reports concerning Lee’s activities and was unable to find such a nexus here. He agreed
that Lee had none of the common Country Boy Crip tattoos such as were seen on Johnson
and Dixon.
Counsel for Lee asked that Sherman’s opinion with respect to Lee’s tattoo be
precluded on foundation and relevance grounds, and as prejudicial under Evidence Code
section 352. The prosecutor then elicited testimony from Sherman concerning Lee’s
MySpace page. Sherman opined that the fact Lee had a MySpace page with “Gunner”
written on it showed a correlation between Lee’s moniker and the tattoo. Having a gun
tattooed on an arm was consistent with being a gang member, especially when the
person’s moniker was Gunner. The court overruled the objections.
Later, Bakersfield Police Officer Williamson testified about his contact with Lee
after Lee’s car was shot. Outside the jury’s presence, the prosecutor informed the court
that Williamson had arrested Lee on outstanding warrants, and had seen Lee’s tattoo
during booking and had spoken to him about it. The prosecutor represented that the
incident was something Sherman was going to use as part of his evaluation of Lee from a
gang standpoint, and that Williamson could establish Lee had the tattoo in March 2007.
114 Sherman could not recall who told him about the possible significance of the
number of bullets, or when or where he had talked to that person.
198.
When counsel for Lee asked if Lee had been read his rights first, the trial court decided to
hold an additional Evidence Code section 402 hearing.
Williamson testified at the hearing that on March 21, 2007, his first contact with
Lee was at the Myrtle Street residence, where he was responding to a call of Lee’s
vehicle being shot. He did not see Lee’s tattoo at that time. Lee had an active
misdemeanor warrant or warrants, and Williamson participated in transporting him to jail
and booking him. Williamson saw the tattoo while Lee was being booked. Williamson
told Lee he liked it. Lee looked kind of perplexed, as if he did not know exactly what
Williamson meant. Williamson asked if Lee fancied himself as a shooter. Lee looked
over at Williamson and smiled a bit. Williamson said it was all right; Williamson was,
too. Williamson then counted the bullet strikes, said that was a lot, and asked if it was
shootings or kills. At that point, Lee looked straight ahead and did not say anything.
Williamson explained that, in order to identify the person, identification of tattoos
typically is part of the general booking process. He did not advise Lee of his rights at any
point. He did not feel it was necessary in order to talk to Lee about his tattoo.
Williamson was not investigating anything concerning the warrant pursuant to which Lee
was being booked, and did not ask questions about that matter. At the time, Williamson
was in the gang unit. Although he was not aware then of the address on Deanna Way and
its significance, he had received training that tattoos of firearms were significant and that,
while common on Hispanic gang members and seen on Caucasian gang members, they
were not often seen on African-American gang members. While a firearm alone may not
have drawn his interest, there is a significance when bullet strikes, hash marks, or rounds
of ammunition stacked up on each other are considered in relation to the firearm.
Williamson did not have any knowledge of Lee at the time. By observing and
asking about the tattoo, however, he was “absolutely” gathering intelligence for the gang
unit, and he felt it might be pertinent in the future. Accordingly, Williamson immediately
told his partner, who was writing a report, what he had seen so it could be documented.
199.
Williamson acknowledged he did not have to ask Lee questions about the tattoo in order
to have Lee booked into the jail.
The prosecutor argued Williamson was just gathering basic information, and that,
since the warrant was for charges of reckless driving, resisting arrest, and not having
insurance, Lee was not in custody for purposes of Miranda because the questions asked
of him were not related to the charges on which he was in custody. Moreover, the
questions were not designed to elicit any information concerning those charges.
The court ruled Miranda had not attached because Lee was not questioned
regarding the matters for which he was being booked. Accordingly, and in light of the
gang-related charge and enhancements and the fact Williamson had some gang expertise,
it permitted the prosecution to question Williamson on the subject in front of the jury.
In the jury’s presence, Williamson testified that on March 21, 2007, after Lee’s car
was shot, Williamson took Lee into custody on a misdemeanor warrant and transported
him to the downtown jail. While Lee was being booked, Williamson observed a tattoo of
a pistol with four bullet strikes on Lee’s forearm. There was also a tattoo of a stack of
five bullets on the outside of the forearm. Williamson said to Lee, “that’s bitchin’.” Lee
looked over at Williamson and gave him a perplexed, confused look. Williamson
clarified he meant the pistol, asked if Lee fancied himself as a shooter, and said he did,
too. Lee kind of smiled at him. Williamson then counted the bullet strikes, said “Wow,”
and asked if they stood for shootings or kills. At that point, Lee turned and faced straight
ahead with a solemn, unemotional look on his face, and nothing further was said.115
Williamson testified that through his training and experience, he had learned that
tattoos of firearms on individuals indicated they fancied themselves as shooters. Seeing
the firearm with the bullet strikes piqued his interest. Firearm tattoos are common on
Caucasian and Hispanic gang members, but are uncommon on African-American gang
115 Lee’s objections on hearsay and Miranda grounds were overruled.
200.
members. A firearm by itself is not as significant as a firearm with marks or bullets or
bullet strikes next to it, as the additional marks usually signify events. Williamson was
unable to name any other individual he had seen with a firearm tattoo. Williamson
personally had no evidence that evening that Lee was an African-American gang
member. He did not read Lee his rights before talking to him because Lee was not under
arrest for a related offense. Engaging in conversation about tattoos is not required in
order to book someone at the jail, although the observation of tattoos during the booking
process is important for identification purposes. Before Williamson saw the tattoo, he
had been told someone thought Lee was a gang member, which made the tattoo very
interesting.
Williamson explained that a gang officer’s primary method for gathering
intelligence is to contact people on the street and talk to them. Williamson personally
always tried to look at tattoos while doing this, because they typically represent
affiliations, significant events in the person’s life, and the like. Seeing how the tattoos
change or are improved over time can be an indication that the person continues to
participate in the gang lifestyle. Often, Williamson asks the person what the tattoos
mean. This is a standard operational technique used by all officers for gathering
intelligence that might be used later, even years down the road.
The subject of tattoos arose again when Sherman testified. In discussing
photographs of various gang tattoos, Sherman talked about one depicting someone’s hand
holding a revolver. Sherman explained that it was unusual to see tattoos of firearms on
Black males, although many Hispanics had them. Nevertheless, the photograph was of
an African-American male who was not one of the defendants.
With respect specifically to Lee’s tattoo, Sherman testified it was the only tattoo
Lee had that was of interest as far as gang indicia were concerned. The gun itself might
or might not be significant. Correlated with the bullet strikes around it, however, it
appeared to Sherman to be a gang-related tattoo, with the bullet strikes referencing
201.
something. Sherman had seen them before on other individuals, who had told him they
signified being shot at or being shot, and were a mark of honor, in essence, for doing
something criminal. Lee’s moniker of Gunner was significant in terms of its correlation
with the firearm and bullet strikes. In addition, in Sherman’s experience, a lot of
monikers have something to do with a trait of the person. For instance, if a gang member
does crazy things all the time, his moniker might be “Psycho.” As a result, the moniker
Gunner tended to suggest to Sherman that the person was an active gunman or that that
was the trait he had been given.
Sherman took Lee’s tattoo into consideration in opining Lee was an active
member of the Country Boy Crips between March 1 and August 22, 2007. Sherman also
based his opinion on Lee’s police contacts, MySpace page, and letters and rap lyrics in
Lee’s possession.
In argument to the jury, the prosecutor discussed the incident in which Lee’s car
was shot. She mentioned that this was when the exchange took place about Lee’s tattoo,
and that Williamson and Sherman both said it was one thing to have a gun tattoo, but the
bullet strikes made this tattoo more significant in a gang context. In arguing defendants
were all gang members, the prosecutor noted Lee had the moniker Gunner, a gang tattoo,
gang contacts and arrests by law enforcement, photographs of him flashing gang signs
and with other documented Country Boy Crips, telephone contacts with documented
Country Boy Crips, letters from his brother acknowledging the gang lifestyle, rap lyrics
with gang references, the gang references on his MySpace page, his admission to Agustin
that he was a Country Boy Crip, and Jackson’s testimony that he was a Country Boy
Crip.
2. Analysis
a. Significance and Meaning of the Tattoo
Lee and Dixon say Lee’s tattoo was irrelevant, because it could not be tied to the
assertion bullet strikes were related to criminal activity, or to anything having to do with
202.
Country Boy Crips or Lee’s activities. They also say there was insufficient foundation
for testimony the tattoo supported expert opinion Lee was a Country Boy Crip and the
bullet strikes correlated with involvement in shootings or criminal activity. Finally, they
argue that even if relevant, evidence concerning the tattoo was more prejudicial than
probative under Evidence Code section 352.
“Evidence possessing any tendency in reason to prove or disprove any disputed
material fact is relevant. [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 711,
italics added.) Evidence leading only to speculative inferences is, however, irrelevant.
(Ibid.) That Lee’s tattoo was of a type commonly seen on gang members, albeit Hispanic
and Caucasian ones, had at least some tendency in reason to prove the tattoo was gang
related, which in turn had some tendency in reason to prove Lee was a gang member. It
did not have to be dispositive of the disputed fact in order to be admissible. (People v.
Richardson (2008) 43 Cal.4th 959, 1002.) As demonstrated by the photograph Sherman
displayed to the jury, firearm tattoos were not unknown in African-American gangs;
moreover, even if not in itself indicative of Lee’s membership in the Country Boy Crips,
the tattoo corresponded to Lee’s moniker Gunner. Considered in light of the other
evidence of Lee’s membership in the Country Boy Crips, including his police contacts,
references on his MySpace page, and references in the letters from his brother and rap
lyrics, evidence of the tattoo was not rendered irrelevant simply because it did not link
him directly with, or was not a tattoo commonly seen on members of, the Country Boy
Crips.
Nor was there insufficient foundation for the expert testimony related to the tattoo.
“‘We are required to uphold the trial judge’s ruling on the question of an expert’s
qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be
found only where “‘the evidence shows that a witness clearly lacks qualification as an
expert….’” [Citation.]’ [Citation.]” (People v. Wallace, supra, 44 Cal.4th at pp. 1062-
203.
1063.) Here, the trial court did not abuse its discretion by finding that Sherman and, to a
lesser degree, Williamson, had expertise in gangs.
“‘A properly qualified expert may offer an opinion relating to a subject that is
beyond common experience, if that expert’s opinion will assist the trier of fact.
[Citation.] Even so, the expert opinion may not be based on assumptions of fact that are
without evidentiary support or based on factors that are speculative or conjectural, for
then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.]’
[Citation.] [¶] ‘“[A]n expert’s opinion rendered without a reasoned explanation of why
the underlying facts lead to the ultimate conclusion has no evidentiary value because an
expert opinion is worth no more than the reasons and facts on which it is based.
[Citations.]” [Citation.]’ [Citation.]” (Brown v. Ransweiler (2009) 171 Cal.App.4th
516, 529-530; accord, People v. Richardson, supra, 43 Cal.4th at p. 1008.)
In forming an opinion, “a gang expert may rely upon conversations with gang
members, on his or her personal investigations of gang-related crimes, and on
information obtained from colleagues and other law enforcement agencies. [Citations.]”
(People v. Hill (2011) 191 Cal.App.4th 1104, 1121-1122.) Sherman testified at length to
his qualifications and the sources of his information. The testimony provided a basis
from which the jury reasonably could conclude the tattoo at least was related to Lee’s
moniker, which in turn was indicative of his gang membership. (See Gardeley, supra, 14
Cal.4th at p. 620.) Lack of specificity in terms of the source(s) of the information
affected the testimony’s weight rather than its admissibility, and was amply probed
during cross-examination. (See People ex rel. Dept. of Transportation v. Clauser/Wells
Partnership (2002) 95 Cal.App.4th 1066, 1085-1086.)
In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612, on which Lee and Dixon
rely, is distinguishable. There, when asked about the primary activities of the gang, the
witness responded that he knew the gang had been involved in certain crimes. His
testimony was found to lack an adequate foundation, because information concerning the
204.
basis of his knowledge, and thus the reliability of his testimony, was never elicited from
him at trial. In the present case, Sherman testified that he had talked about the
significance of tattoos of firearms with bullet strikes to individuals who themselves had
such tattoos. In light of his other testimony concerning his training and experience with
gangs, he did not need to name the sources of his information in order for the trier of fact
to assess the weight and persuasiveness of his testimony. (See People v. Lawley, supra,
27 Cal.4th at p. 132.)
Here, the expert witnesses explained to the jury why they found the tattoo of
particular interest and its potential significance. It was also made clear to the jury that
such a tattoo was an unusual one for African-American gang members, so there was little
danger the jury would automatically conclude the bullet strikes or cartridges in Lee’s
tattoo corresponded to criminal activity. This is especially true since Lee had the tattoo
in March 2007, and there was no evidence he was involved in any shootings before that
time. Finally, because of the correlation between the tattoo and Lee’s moniker, and the
ample other information that formed the basis of Sherman’s opinion Lee was a Country
Boy Crip, evidence of the tattoo was not “so uniquely inflammatory that its potential for
unfair prejudice clearly outweighed its probative value” such that it should have been
excluded under Evidence Code section 352. (People v. Zambrano, supra, 41 Cal.4th at
p. 1142; see also People v. Medina (1995) 11 Cal.4th 694, 749.) Sherman and
Williamson were properly allowed to testify concerning the tattoo and its significance.
(See People v. Ochoa (2001) 26 Cal.4th 398, 437-438, disapproved on another ground in
People v. Prieto, supra, 30 Cal.4th at p. 263, fn. 14.)
b. Miranda
Lee and Dixon contend that, in questioning Lee about the tattoo during booking,
Williamson subjected Lee to custodial interrogation without the benefit of Miranda
warnings. As a result, they say, Lee’s responses to the questions should have been
205.
excluded, and their admission was federal constitutional error. The People say Miranda
was not triggered by mere booking questions.
In Miranda, supra, 384 U.S. at page 444, the United States Supreme Court held
that “the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination…. Prior
to any questioning, the person must be warned that he has a right to remain silent, that
any statement he does make may be used as evidence against him, and that he has a right
to the presence of an attorney, either retained or appointed.”
“‘Absent “custodial interrogation,” Miranda simply does not come into play.’
[Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “[C]ustodial interrogation”
means “questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.”
(Miranda, supra, 384 U.S. at p. 444, fn. omitted.) “Whether a person is in custody is an
objective test; the pertinent inquiry is whether there was ‘“‘a “formal arrest or restraint on
freedom of movement” of the degree associated with a formal arrest.’”’ [Citation.]”
(People v. Leonard (2007) 40 Cal.4th 1370, 1400.) Interrogation, for purposes of
invoking the Miranda protections, “refers not only to express questioning, but also to any
words or actions on the part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to elicit an incriminating
response from the suspect. The latter portion of this definition focuses primarily upon the
perceptions of the suspect, rather than the intent of the police.” (Rhode Island v. Innis
(1980) 446 U.S. 291, 301, fn. omitted, italics added.)
In reviewing a trial court’s ruling on a Miranda issue, we accept its determination
of disputed facts if supported by substantial evidence. However, we independently
review uncontradicted evidence, and also independently decide whether the challenged
statements were obtained in violation of Miranda. (People v. Davis, supra, 46 Cal.4th at
206.
p. 586; People v. Sims (1993) 5 Cal.4th 405, 440, disapproved on another ground in
People v. Storm (2002) 28 Cal.4th 1007, 1031-1032; People v. Aguilera (1996) 51
Cal.App.4th 1151, 1161-1162.)
Here, there is no question that Lee was in custody when Williamson asked about
his tattoo. Contrary to the prosecutor and trial court’s apparent belief, the United States
Supreme Court has squarely rejected the notion Miranda attaches only with respect to the
matter for which the person is in custody. In Mathis v. United States (1968) 391 U.S. 1,
4-5, that court stated: “The Government … seeks to narrow the scope of the Miranda
holding by making it applicable only to questioning one who is ‘in custody’ in connection
with the very case under investigation. There is no substance to such a distinction, and in
effect it goes against the whole purpose of the Miranda decision which was designed to
give meaningful protection to Fifth Amendment rights. We find nothing in the Miranda
opinion which calls for a curtailment of the warnings to be given persons under
interrogation by officers based on the reason why the person is in custody. In speaking of
‘custody’ the language of the Miranda opinion is clear and unequivocal: [¶] ‘To
summarize, we hold that when an individual is taken into custody or otherwise deprived
of his freedom by the authorities in any significant way and is subjected to questioning,
the privilege against self-incrimination is jeopardized.’ [Citation.]” California courts
have long recognized this principle. (See, e.g., People v. Underwood (1986) 181
Cal.App.3d 1223, 1231; In re James M. (1977) 72 Cal.App.3d 133, 136-137.)116
116 The issue is somewhat more complicated where the individual being interrogated
is already in jail or prison when the questioning takes place. In such instances, something
beyond the mere fact of incarceration is required in order for an interrogation to be
custodial for Miranda purposes. (Howes v. Fields (2012) 565 U.S.__ [132 S.Ct. 1181,
1189-1191, 1192-1193]; People v. Macklem (2007) 149 Cal.App.4th 674, 686-696 &
cases discussed therein; see also Maryland v. Shatzer (2010) 559 U.S. 98, 112-113 &
fn. 8.) We know of no authority extending such a requirement to the booking stage.
207.
We also find it beyond reasonable dispute that Lee was subjected to interrogation
within the meaning of Miranda. Williamson candidly admitted he was attempting to
elicit gang intelligence that might prove useful down the line. He knew tattoos of
firearms were significant in the gang context, especially when coupled with bullet strikes,
hash marks, or rounds of ammunition. Although he did not know anything about Lee, he
specifically asked if the bullet strikes in the tattoo represented shootings or kills — in
short, Lee’s involvement in criminal activity, whether by active participation in a
criminal street gang or by participation in shootings or homicides. (See People v.
Roquemore (2005) 131 Cal.App.4th 11, 25-26.) Not only were Williamson’s questions
reasonably likely to elicit an incriminating response, that type of response was precisely
what Williamson was hoping to get.
It is true that small talk between police and a suspect in custody is permitted.
(People v. Gamache (2010) 48 Cal.4th 347, 388.) This was not mere small talk,
however; Williamson’s inquiries were neither innocuous nor neutral. (See ibid.) It is
also true that the asking of routine booking questions does not trigger the need for
Miranda warnings. (Pennsylvania v. Muniz (1990) 496 U.S. 582, 601-602 (plur. opn. of
Brennan, J.); People v. Gomez (2011) 192 Cal.App.4th 609, 628-629.) This type of
routine gathering of background biographical information has been held to include
questions about gang affiliation where such questions are asked for a legitimate
administrative purpose, such as to ensure members of rival gangs are not placed together
in jail cells. (Gomez, supra, at pp. 630-635; U.S. v. Washington (9th Cir. 2006) 462 F.3d
1124, 1132-1133.) The questions here were neither routine nor asked for administrative
or safety purposes. Rather, they were designed to elicit incriminating admissions.
(Pennsylvania v. Muniz, supra, 496 U.S. at p. 602, fn. 14 (plur. opn. of Brennan, J.);
Gomez, supra, at p. 629.)
The People point to People v. Morris (1987) 192 Cal.App.3d 380 (Morris), in
which we stated: “A police officer’s concerns for jail security, encompassing the safety
208.
of the suspect, can be triggered by a variety of factors, some of which would have
nothing to do with the offense underlying the suspect’s incarceration and, as importantly,
could only be explored by inquiring of the defendant himself. Thus a suspect who is
booked into jail wearing tattoos or other indicia of gang affiliation might alert the
booking officer to the possibility of gang-related violence; the quickest way for the
officer to resolve such concern is to ask the suspect whether jail personnel should
anticipate any trouble in this regard once the suspect becomes housed in the jail. So long
as the offense for which the suspect is in custody is not itself gang-related, there is no
reason the officer should foresee the question will elicit an incriminating response. In
such a circumstance, an incriminating response is not the product of affirmative police
conduct and would be admissible in the absence of Miranda warnings.” (Id. at p. 390.)
Morris has been disapproved on this issue to some extent by People v. Williams
(2013) 56 Cal.4th 165, 186-188 and footnote 15. Neither Morris nor Williams assists the
People here. Williamson’s testimony makes clear that he was not asking about Lee’s
tattoo in an attempt to resolve any sort of security concern, and that his questions were
not ones that were required for the booking process. (Compare People v. Williams,
supra, at pp. 187-188 & fn. 14.)
There is language in People v. Wader (1993) 5 Cal.4th 610 that offers some
support for the People’s position. There, the defendant was arrested on an outstanding
warrant that was unrelated to the murder with which he ultimately was charged. Frank
Hillhouse, who was known to police to be acquainted with the defendant, also was
wanted on an outstanding warrant. (Id. at pp. 632-633, 634.) Following the defendant’s
arrest, Sheriff’s Sergeant Hoops asked him where Hillhouse was. The defendant replied
that he had heard Hillhouse was in a certain area and had been involved in shooting
someone. The next day, Hoops again questioned the defendant, who provided additional
information about Hillhouse and the shooting. It was only after this time that Hoops
learned details of the murder with which the defendant ultimately was charged. Hoops
209.
further determined, without asking additional questions, that the defendant was wearing
boots matching the description of a pair bought with the victim’s credit card. (Id. at
pp. 634-635.)
The California Supreme Court held that Hoops’s inquiries about Hillhouse were
not interrogation within the meaning of Miranda. The court stated: “Not every question
directed by an officer to a person in custody amounts to an ‘interrogation’ requiring
Miranda warnings. The standard is whether ‘under all the circumstances involved in a
given case, the questions are “reasonably likely to elicit an incriminating response from
the suspect.”’ [Citation.] This is an objective standard. ‘The subjective intent of the
[officer] is relevant but not conclusive. [Citation.] The relationship of the question asked
to the crime suspected is highly relevant. [Citation.]’ [Citations.] As Sergeant Hoops’s
testimony indicates, his inquiry regarding the whereabouts of Hillhouse was designed to
elicit information about Hillhouse, not defendant. There is no indication in the record
before us that the inquiry was at all relevant to any charge for which defendant was then
in custody or any crime of which he was then suspected. Accordingly, Sergeant Hoops
was not required to advise defendant of his rights under Miranda ….” (People v. Wader,
supra, 5 Cal.4th at p. 637.)
In the present case, in contrast, Williamson’s questions — while not relevant to
any charge for which Lee was then in custody — were both designed and reasonably
likely to elicit information about Lee and, potentially, his involvement in criminal
activity. Accordingly, they constituted interrogation within the meaning of Miranda.
Lee’s responses, although not verbal, constituted “statements” obtained in violation of
Miranda (see Evid. Code, § 225; People v. Whitfield (1996) 46 Cal.App.4th 947, 958,
210.
fn. 6) and should have been suppressed. The trial court erred by admitting the
evidence.117
Miranda error is assessed under Chapman’s “‘harmless beyond a reasonable
doubt’” standard. (People v. Aguilera, supra, 51 Cal.App.4th at p. 1166; see People v.
Davis, supra, 46 Cal.4th at p. 588.) We find the error nonprejudicial under this standard.
Lee’s responses were ambiguous. Even assuming jurors interpreted his smile to mean he
did indeed fancy himself as a shooter, because he had the tattoo before any of the charged
offenses occurred, jurors would not have concluded it was a tacit admission of complicity
in the charged offenses. Since Sherman testified concerning other shootings in which
Johnson and Dixon were involved, jurors likely would have further concluded Sherman
would also have done so with respect to Lee, had any other such shootings existed. Thus,
jurors would not have speculated the tattoo referred to shootings in which Lee was
involved and about which jurors were not told.
b. Gang Members Enjoy Killing
Lee says the trial court erred by allowing Sherman to testify that sometimes gang
members enjoy killing, that enjoying killing is part of being a gang member, and that
sometimes gang members participate in gang activities because they find it exciting. Lee
says the evidence was irrelevant, based on speculation and without reasonable
foundation, and more prejudicial than probative under Evidence Code section 352.
Johnson and Dixon join. The People suggest defendants have misread the testimony in
question, and say it was properly admitted in any event.
117 At trial, the prosecutor warned that if the court found a Miranda issue here, it
would potentially affect all future contacts between law enforcement and suspected gang
members, and all field identification contacts. Aside from the fact that application of the
Constitution’s requirements should not turn on how far-reaching the effects may be, such
contacts usually involve either consensual encounters or temporary detentions. Generally
speaking, they do not constitute “custody” for Miranda purposes. (Maryland v. Shatzer,
supra, 130 S.Ct. at p. 1224; People v. Clair, supra, 2 Cal.4th at p. 679.)
211.
1. Background
Prior to being shot, Lee worked as a respiratory therapist in Los Angeles. During
direct examination, the prosecutor asked Sherman, without reference to any particular
individual and without objection, what motivated a person to join a gang. Sherman
replied that there could be several different reasons: “[I]t could be somebody that’s being
picked on and they want to feel a part of something. It could be that they grew up out in
the neighborhood and they feel that their family’s from there and that’s where they need
to go. It could be motivated by greed. They see fellow gang members having nice cars,
lots of money, and so they want to participate and gain that. It could be that they see
these guys, gang members, going around with guns and everybody looks up to them and
they’re scared and intimidated by them and that’s something they may want to be a part
of.”
Later, on direct examination, and again during questioning about gang members in
general, the prosecutor asked whether all gang members dressed a certain way. Sherman
answered no, and explained that years before, most showed their colors and dressed like
gang members. Upon becoming aware of the Penal Code sections and how dressing like
a gang member could be used against them in court, however, many steered away from
that and dressed more normally. The same was true with respect to tattoos. The
prosecutor noted that Sherman had testified about selling drugs to finance the gang. She
then asked if some gang members had legitimate jobs. Sherman replied affirmatively,
and explained that some gang members had a regular job and wanted to work, because
they had a family to support and were not making enough money with the gang. In
addition, some wanted to try to distance themselves from the gang and “pull themselves
away” by doing something legitimate. Again, there was no objection.
During cross-examination, counsel for Lee asked Sherman if, in preparing to form
his opinion about Lee, Sherman had included Lee’s educational background, work
history, or professional licensing. Sherman answered no to each. Sherman agreed that if
212.
a Black male in a Country Boy Crip neighborhood wore powder blue clothing, got caught
selling drugs, threw gang signs, and had gang tattoos, Sherman likely would classify him
as a gang member. Asked if, conversely, a Black male who was from or frequented the
Country Boy Crip neighborhood, did not have tattoos or wear blue, but had a lot of
friends in the gang and hung out with gang members, might be considered undercover,
Sherman responded that it would depend on more information than counsel provided.
Sherman agreed that some Black gang members lived within the gang boundaries while
others did not, some wore gang colors while others did not, some sold drugs while others
did not, and some rented cars for each other while some rented cars for themselves.
Sherman further agreed that some African-Americans went to college while others did
not, some were respiratory therapists while others were not, and some were certified in
Advanced Cardiac Life Support while others were not. Counsel for Lee ended his
examination, “Doesn’t it kind of sound like if you’re young and Black and happen to be
in the Country you really can’t win either way?” The trial court sustained the
prosecutor’s objection that the question was argumentative.
The prosecutor immediately elicited Sherman’s testimony that he was not basing
his opinion that Lee was a Country Boy Crip on the fact Lee was African-American and
had been seen within the territorial boundaries of the Country Boy Crips. Rather, he was
basing his opinion on the investigation as a whole, including a particular photograph,
letters from Lee’s brother, the MySpace page, Lee’s contacts with other Country Boy
Crip members, his arrest for primary criminal activities of the gang, and Sherman’s
experience. The prosecutor asked some questions about the letters from Lee’s brother,
then this took place:
“Q. Do people with educations belong to gangs?
“A. They do.
“Q. Why would someone with an education and a job belong in a
gang?
213.
“A. Again, the stigma of the gang. They want to be a part of the
gang, whether they enjoy what the gang does, what the benefits are, or
whether their family’s deeply enthralled in the gang. There’s nothing the
gang says that prevents you from getting an education or a job.
“Q. Officer Sherman, sometimes do people just enjoy killing other
people?
“[COUNSEL FOR JOHNSON]: Objection.
“[COUNSEL FOR LEE]: Join.
“[COUNSEL FOR JOHNSON]: ‘Sometimes’ is vague and it’s
conclusory and it’s prejudicial.
“THE COURT: Can you be a little more specific?
“[COUNSEL FOR JOHNSON]: Irrelevant.
“[PROSECUTOR]:
“Q. Sometimes do gang members enjoy killing other people?
“A. Again, I can’t speculate to what a gang member specifically is
thinking, whether he enjoys it or not. I just know it’s an aspect of what
comes with a gang member.
“Q. Sometimes do gang members get involved in activities of the
gang because it’s exciting to them?
“A. Yes.
“Q. How do you know that? [¶] … [¶]
“[COUNSEL FOR JOHNSON]: It’s vague; calls for speculation.
“THE COURT: The vague objection is overruled. [¶] You may
answer in the context of your qualifications, sir, and experience.
“A. I’ve spoken with gang members that they do it for the
excitement, whether it be the narcotics selling, the money, having all the
property, having the cool things, being able to go fight other rival gang
members whenever you want, so they find that exciting.” (Italics added.)
214.
2. Analysis
Defendants’ relevancy objection should have been sustained.118 The prosecutor
was entitled to rebut the defense’s suggestion that, because Lee had an education and a
legitimate job, he was not a gang member. She achieved that purpose by asking an expert
in gangs why someone with a job and an education would belong to a gang. The question
and answer about whether it was exciting arguably fell within the trial court’s discretion
to admit: Sherman had spoken to gang members on the subject, giving his answer a
reliable, nonspeculative foundation; because he did not suggest gang members found
killing people exciting, his answer was not unduly prejudicial under Evidence Code
section 352. Whether people in general or gang members in particular sometimes enjoy
killing other people, however, had no tendency in reason to prove or disprove any
disputed fact at trial.119
The erroneous admission of expert testimony is reviewed under the Watson
standard. (People v. Prieto, supra, 30 Cal.4th at p. 247; see also People v. Avitia (2005)
127 Cal.App.4th 185, 194.) There is no reasonable probability any defendant would have
118 Dixon did not join the objections, but in light of the trial court’s rulings, it would
have been futile for him to do so.
119 Although no objection was raised on this ground, we also find the subject not a
proper one for expert testimony. “Opinion testimony may be admitted in circumstances
where it will assist the jury to understand the evidence or a concept beyond common
experience. Thus, expert opinion is admissible if it is ‘[r]elated to a subject that is
sufficiently beyond common experience [and] would assist the trier of fact.’ [Citation.]
Expert opinion is not admissible if it consists of inferences and conclusions which can be
drawn as easily and intelligently by the trier of fact as by the witness. [Citation.]”
(People v. Torres (1995) 33 Cal.App.4th 37, 45.) Jurors do not need an expert to tell
them that some people like to kill. (Cf. People v. Johnson (1993) 19 Cal.App.4th 778,
785 [proposition that prison inmates sometimes lie not outside common understanding of
jurors].) Moreover, Sherman’s testimony that he knew it was an aspect of what came
with being a gang member was without adequate foundation. (In re Alexander L., supra,
149 Cal.App.4th at pp. 611-612; see People v. McWhorter (2009) 47 Cal.4th 318, 362.)
215.
obtained a more favorable result had the challenged evidence been excluded. Nor was
defendants’ trial rendered fundamentally unfair by its admission.
c. Mental States and Ultimate Issues of Fact
Johnson contends the trial court erred in permitting Sherman to testify to
defendants’ intent and motive, which were ultimate issues to be decided by the jury. He
says the court initially ruled evidence of defendants’ gang involvement was admissible to
prove identity, motive, and intent as to all counts, but later ruled the officer was not
testifying to intent or motive even though the officer did so testify. Johnson says this
allowed the prosecution to present speculative and unfounded expert testimony on
ultimate issues of law and fact. Because the expert’s opinions were improper, he
concludes, they did not constitute sufficient evidence to support the gang benefit
enhancements, gang special circumstances, and active gang participation charge.120
Moreover, the argument runs, because the evidence spilled over into the mental state
requirements for murder and conspiracy, reversal is required on all counts. Dixon and
Lee join.
Dixon adds that the trial court erred by admitting Sherman’s testimony that Dixon
was an active gang member in 2007, the Country Boy Crips’ pattern of criminal activity
is common knowledge for other gang members, “mirroring” hypothetical shootings were
done with the intent to aid the gang, and it is not common for gang members bragging
about crimes to go into much detail. He says the hypotheticals usurped the jury’s fact-
finding responsibilities on ultimate issues; under section 29, an expert cannot give an
opinion as to the ultimate question of a person’s intent, knowledge, or mental state, or the
reasonableness of a person’s actions; Sherman’s testimony that gang members do not
120 In contravention of California Rules of Court, rule 8.204(a)(1)(B), Johnson has not
placed his sufficiency of the evidence argument under a separate heading or subheading.
216.
divulge details when admitting crimes lacked foundation in the qualifications of the
officer to offer the opinions; the testimony was not helpful or necessary to the jury to
understand questions of intent, motive, and conduct; and the testimony invaded the fact-
finding province of the jury. Johnson and Lee join.
The People say Sherman’s testimony was proper, and that he did not express any
opinion concerning the actual, subjective motivation of defendants. They further say the
trial court properly relegated to cross-examination challenges to Sherman’s qualifications
to offer opinions on subjects such as whether gang members divulge details when
admitting crimes. The People conclude that Sherman’s testimony, combined with
additional evidence, provided sufficient evidence to uphold the various charges,
enhancements, and special circumstances.
1. Background
At the outset of the Evidence Code section 402 hearing, Sherman testified that he
had been employed as a senior police officer for over 12 years, before which he was a
Kern County detentions officer for 10 years.121 At the time of trial, he had been assigned
to the Kern County Violent Crimes Gang Task Force for about two months, before which
he was a field training officer on patrol for about a year. Before that, he was a gang
officer for the SEU for two years. The SEU monitors gang activity, conducts gang
investigations and arrests, has daily contacts with gang members, and gathers
intelligence. During his time with the unit, Sherman went out on a daily basis and
patrolled high-activity gang areas, contacted gang members and arrested them if
appropriate, conducted investigations of gang members, assisted in investigations in
121 Much of the procedural history concerning, and content of, Sherman’s testimony
has already been stated. We do not repeat everything here.
217.
which gang members were suspects, and testified in court on those cases as a gang
expert.
Sherman had over 200 hours of formalized training with respect to gangs.
Subjects addressed in his classes included why people become gang members, why they
stay in the gang life, the primary activities of the gang, why they possess weapons, why
they sell drugs, and why they commit assaults. Through local training, he learned the
gang territories, the primary activities of the local gangs, and who the local gangs are,
their associates, and their rivals. Sherman also had expertise gained from conducting
gang investigations and personally contacting gang members. He had investigated
numerous gang cases within Bakersfield, involving Black gangs, Hispanic gangs, and
White gangs; and had contacted gang members of pretty much each set and gang within
Bakersfield. He previously testified in court as a gang expert, including about the
Westside Crips, Eastside Crips, and Country Boy Crips. He stayed current on gang
trends by reading reports of the police department and sheriff’s office; speaking with
officers, including probation and parole; and talking to gang members.
Sherman also had experience with gang members as a detentions officer for the
sheriff’s department. He was in contact with inmates on a daily basis, and conducted
disciplinary hearings and housing changes, and had general conversations with, gang
members.
Not all of Sherman’s contacts with gang members were adversarial. Some gang
members will show respect if shown respect; once that respect is established, they are
willing to have candid conversations about their lifestyles and traditions. Sherman had
also sat in on the interviews of arrested gang members. Sometimes gang members talked
to him about gang customs. In addition, he shared intelligence regarding gang crimes
with other officers.
Specifically with respect to the Country Boy Crips, Sherman had training and
experience in contacting members of that gang and talking to them about it. He had also
218.
talked to other officers who had talked to Country Boy Crips, and had read police reports
about Country Boy Crips and the crimes they commit. He had previously testified in
court as an expert on that gang.
At the conclusion of the Evidence Code section 402 hearing, the trial court found
Sherman to be qualified to testify as an expert in gang recognition and detection. It
proposed to give a limiting instruction telling jurors they could consider evidence of gang
activity only for the purpose of deciding whether a defendant acted with the intent,
purpose, and knowledge required to prove gang-related crimes, enhancements, and
special-circumstance allegations, or that a defendant had a motive to commit the crimes
charged, as well as in evaluating the credibility of a witness when considering the facts
and information relied on by an expert witness. The court also proposed to admonish
jurors that hearsay matters relied on by Sherman could only be considered in evaluating
the basis for his opinion, and not for their truth. The court invited counsel to prepare a
proposed limiting instruction covering those areas of concern.
During the course of Sherman’s testimony before the jury, the prosecutor elicited
that in 2007, the Country Boy Crip criminal street gang engaged in a pattern of criminal
activity. She then asked if that pattern of criminal activity was a matter of common
knowledge among other gang members. When Sherman answered yes, the prosecutor
asked why he said that. Sherman answered, “Gang members know what other gang
members do.” Counsel for Lee objected to the testimony as speculation. The other
defense attorneys joined. The trial court sustained the objection, but told the prosecutor
she could lay a foundation. The prosecutor then elicited from Sherman that gang
members will talk about who got convicted of what, who was testifying, who was the
witness, and the facts of the case, and that they will discuss it among themselves and with
their friends and relatives. When she asked whether gang members discuss crimes
among themselves that are occurring out in the neighborhoods, counsel for Lee objected
that the question called for speculation and lacked foundation. Counsel for Johnson
219.
joined. The court permitted Sherman to answer based on his education, training, and
experience. Sherman answered that gang members did discuss it among themselves, and
also discussed it with officers. When the prosecutor asked how he knew this, defense
counsel asked for and were granted a continuing objection. Sherman then answered that
he had talked to gang members who told him about crimes in which they were not
involved, and said they obtained the information from other gang members. They also
talked to him about crimes of which they knew. Sherman further testified this was true
for the Country Boy Crips.
The prosecutor asked again whether, in Sherman’s opinion, the pattern of criminal
activity was a matter of common knowledge for gang members within the Country Boy
Crips. Counsel for Lee objected that it went to the ultimate issue for the jury. Counsel
for Johnson joined. The matter was then taken up outside the jury’s presence. Counsel
for Lee argued that testimony a gang member knew about what other gang members were
doing was speculative, without foundation, and removed the issue from of the province of
the jury. Ultimately, he objected under Evidence Code section 352, on relevance
grounds, and that it went to the ultimate issue. Counsel for Johnson and Dixon joined.
After further argument that expanded to include the prosecutor’s proffer of expert
testimony to show motivation for particular crimes, and whether and how a crime was
committed to benefit or promote a gang, the court ruled that as long as the questions were
based on the gang in general and not any of these particular defendants unless Sherman
had specific knowledge otherwise, and were founded on Sherman’s observations,
interviews, and intelligence received from active gang members, confidential informants,
and other officers, the probative value outweighed any prejudicial impact and the
evidence was admissible.
Counsel for Lee then asked for a continuing objection on the ground that
Sherman’s opinions were based on unreliable hearsay, and on protected speech and
freedom of association. Counsel for Johnson and Dixon joined. The court granted
220.
defendants continuing objections but overruled them, and rejected the claim Sherman’s
opinions would deny defendants the right to confront and cross-examine the witnesses
who formed the basis of those opinions.
In the jury’s presence, the prosecutor asked Sherman, separately as to each
defendant, if he had formed an opinion as to whether that defendant was an active
member of the Country Boy Crips between March 1 and August 22, 2007, and what that
opinion was.122 The prosecutor subsequently asked Sherman a series of hypothetical
questions that mirrored the prosecution’s evidence of how the various charged offenses
occurred, but did not specifically refer to any defendant. Defendants were granted
continuing objections based on their previous arguments, but, in light of its previous
rulings, the trial court overruled the objections. Sherman then testified to his opinions
that the offenses were committed for the benefit of the Country Boy Crips, and with the
intent to promote, further, or assist criminal conduct by the Country Boy Crips. He also
explained the basis of those opinions.
122 Counsel for Johnson objected that the question went to the ultimate conclusion of
law and fact, and was a matter for the jury to decide. The court responded, “Talking
about membership, not intent or motive, so I’m going to overrule the objection.”
This is the basis for Johnson’s claim the trial court ruled Sherman was not
testifying to intent or motive even though Sherman did so testify. When read in context,
the ruling is not the contradiction Johnson would lead us to believe. Rather, it is apparent
the court was harkening back to its lengthy discussion with counsel, outside the jury’s
presence, concerning this court’s opinion in People v. Killebrew (2002) 103 Cal.App.4th
644 (Killebrew), and what questions, under that opinion, could properly be asked with
respect to these specific defendants as opposed to unspecified individuals or gang
members in general.
The California Supreme Court recently disapproved any interpretation of
Killebrew barring or limiting the use of hypothetical questions. (People v. Vang (2011)
52 Cal.4th 1038, 1047, fn. 3 (Vang).)
221.
2. Analysis
Section 186.22, subdivision (a) defines a substantive offense with three elements.
“Active participation in a criminal street gang, in the sense of participation that is more
than nominal or passive, is the first element …. The second element is ‘knowledge that
[the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’
and the third element is that the person ‘willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Lamas
(2007) 42 Cal.4th 516, 523.) There is no requirement that the felonious criminal conduct
that is promoted, furthered, or assisted be gang related. (People v. Albillar (2010) 51
Cal.4th 47, 51, 59 (Albillar).)
To establish the enhancement defined by subdivision (b) of section 186.22, “the
prosecution must prove that the crime for which the defendant was convicted had been
‘committed for the benefit of, at the direction of, or in association with any criminal street
gang, [and that it was committed] with the specific intent to promote, further, or assist in
any criminal conduct by gang members.’ [Citations.]” (Gardeley, supra, 14 Cal.4th at
pp. 616-617.) There need not be an intent to promote, further, or assist either gang-
related conduct apart from the charged offenses, or a gang. (Albillar, supra, 51 Cal.4th at
pp. 51, 66-67.)123
The special circumstance defined in section 190.2, subdivision (a)(22) mandates a
sentence of death or life in prison without the possibility of parole where “[t]he defendant
intentionally killed the victim while the defendant was an active participant in a criminal
street gang, … and the murder was carried out to further the activities of the criminal
123 After Albillar, cases such as Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1102-
1104 and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1078-1083 are no longer the
law to the extent they interpret section 186.22, subdivision (b) as requiring proof the
defendant had the specific intent to facilitate gang members’ criminal activities other than
the charged crime(s). (Emery v. Clark (9th Cir. 2011) 643 F.3d 1210, 1215.)
222.
street gang.” Before a defendant can be penalized under this statute for being an active
participant in a criminal organization, he or she must be shown to have had knowledge of
the gang’s criminal purposes. (People v. Carr (2010) 190 Cal.App.4th 475, 487.) The
requirement that the People prove “‘the murder was carried out to further the activities of
the criminal street gang’” “substantially parallels the language of section 186.22,
subdivision (b)(1), which authorizes a sentencing enhancement for felonies ‘committed
for the benefit of, at the direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal conduct by gang
members….’” (Id. at p. 488.)124
Evidence of gang affiliation and activity, though potentially prejudicial, is relevant
and admissible when the reason for the underlying crime is gang related. (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1167; People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1550.) “‘[B]ecause a motive is ordinarily the incentive for criminal
behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is
permitted in admitting evidence of its existence.’ [Citations.]” (Gonzalez, at p. 1550.)
“California law permits a person with ‘special knowledge, skill, experience,
training, or education’ in a particular field to qualify as an expert witness [citation] and to
124 The statutes all require proof of the existence of a criminal street gang.
Accordingly, the prosecution is required to prove “that the gang (1) is an ongoing
association of three or more persons with a common name or common identifying sign or
symbol; (2) has as one of its primary activities the commission of one or more of the
criminal acts enumerated in the statute; and (3) includes members who either individually
or collectively have engaged in a ‘pattern of criminal gang activity’ by committing,
attempting to commit, or soliciting two or more of the enumerated offenses (the so-called
‘predicate offenses’) during the statutorily defined period. [Citations.]” (Gardeley,
supra, 14 Cal.4th at p. 617, italics omitted.) As defendants implicitly concede the
evidence concerning the Country Boy Crips was sufficient to establish these
requirements, we do not discuss them further.
223.
give testimony in the form of an opinion [citation]. Under Evidence Code section 801,
expert opinion testimony is admissible only if the subject matter of the testimony is
‘sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact.’ [Citation.] The subject matter of the culture and habits of criminal street
gangs … meets this criterion. [Citations.]” (Gardeley, supra, 14 Cal.4th at p. 617.)
Included within “‘culture and habits’” is “testimony about the size, composition or
existence of a gang [citations], gang turf or territory [citations], an individual defendant’s
membership in, or association with, a gang [citations], the primary activities of a specific
gang [citations], motivation for a particular crime, generally retaliation or intimidation
[citations], whether and how a crime was committed to benefit or promote a gang
[citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand
signs [citations], and gang colors or attire [citations].” (Killebrew, supra, 103
Cal.App.4th at pp. 656-657, fns. omitted.)
“[T]he decision of a trial court to admit expert testimony ‘will not be disturbed on
appeal unless a manifest abuse of discretion is shown.’ [Citation.]” (People v. McAlpin,
supra, 53 Cal.3d at p. 1299.) “‘[T]he admissibility of expert opinion is a question of
degree. The jury need not be wholly ignorant of the subject matter of the opinion in order
to justify its admission; if that were the test, little expert opinion testimony would ever be
heard. Instead, the statute declares that even if the jury has some knowledge of the
matter, expert opinion may be admitted whenever it would “assist” the jury. It will be
excluded only when it would add nothing at all to the jury’s common fund of
information ….’ [Citation.]” (Id. at pp. 1299-1300.)
“Generally, an expert may render opinion testimony on the basis of facts given ‘in
a hypothetical question that asks the expert to assume their truth.’ [Citation.] Such a
hypothetical question must be rooted in facts shown by the evidence, however.
[Citations.]” (Gardeley, supra, 14 Cal.4th at p. 618.) Although a trial court “should
prevent the use of misleading or unfair hypothetical questions.” (People v. Wilson (1944)
224.
25 Cal.2d 341, 348), the questioner is not required to disguise the fact that the questions
are based on the evidence adduced at trial (Vang, supra, 52 Cal.4th at p. 1041). Because
a hypothetical question not based on the evidence is irrelevant, and expert testimony not
based on the evidence will not assist the trier of fact, “the prosecutor’s hypothetical
questions [must] be based on what the evidence showed these defendants did, not what
someone else might have done.” (Id. at p. 1046.)
“Testimony in the form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be decided by the trier of fact.”
(Evid. Code, § 805.) Nevertheless, an expert’s opinion “is not admissible if it invades the
province of the jury to decide a case. ‘Undoubtedly there is a kind of statement by the
witness which amounts to no more than an expression of his general belief as to how the
case should be decided ….’ [Citation.] Notwithstanding Evidence Code section 805, an
‘expert must not usurp the function of the jury ….’ [Citations.] [¶] Expert opinions
which invade the province of the jury are not excluded because they embrace an ultimate
issue, but because they are not helpful (or perhaps too helpful). ‘[T]he rationale for
admitting opinion testimony is that it will assist the jury in reaching a conclusion called
for by the case. “Where the jury is just as competent as the expert to consider and weigh
the evidence and draw the necessary conclusions, then the need for expert testimony
evaporates.” [Citation.]’ [Citations.] In other words, when an expert’s opinion amounts
to nothing more than an expression of his or her belief on how a case should be decided,
it does not aid the jurors, it supplants them.” (Summers v. A. L. Gilbert Co. (1999) 69
Cal.App.4th 1155, 1182-1183.)
There is no hard-and-fast rule concerning when an expert’s opinion goes beyond
embracing the ultimate issue and improperly invades the province of the jury. As the
California Supreme Court has said, “‘We think the true rule is that admissibility depends
on the nature of the issue and the circumstances of the case, there being a large element
of judicial discretion involved…. Oftentimes an opinion may be received on a simple
225.
ultimate issue, even when it is the sole one, as for example where the issue is the value of
an article, or the sanity of a person; because it cannot be further simplified and cannot be
fully tried without hearing opinions from those in better position to form them than the
jury can be placed in.’ [Citations.]” (People v. Wilson, supra, 25 Cal.2d at p. 349.)
In keeping with the foregoing, a witness may not express an opinion as to a
defendant’s guilt or innocence, or with respect to whether a crime has been committed.
(People v. Torres, supra, 33 Cal.App.4th at pp. 46-47.) Nonetheless, “[t]here are some
crimes a jury could not determine had occurred without the assistance of expert opinion
as to an element of the crime.” (Id. at p. 47, fn. omitted.) Thus, for example, it has been
held proper for a trial court to permit an expert in the illegal distribution of
pharmaceutical drugs to opine that, under the facts of the hypothetical question posed to
him, the drugs were possessed for the purpose of illegal street sales. (People v. Doss
(1992) 4 Cal.App.4th 1585, 1596.) “Rarely, if ever, does an expression of opinion by a
so-called expert not amount to that which either the court or jury might adopt as a basis
for the ultimate decision in the case. However, that does not mean that the witness is
deciding the case or that in so testifying he is usurping the functions of the jury. He is
merely giving an opinion, based upon his technical training, which the court may or may
not accept as testimony that is proper and necessary to an enlightened consideration and a
correct disposition of the ultimate issue. [Citation.]” (Wells Truckways, Ltd. v. Cebrian
(1954) 122 Cal.App.2d 666, 674.)
Considering Sherman’s testimony and the trial court’s rulings in light of the
foregoing principles, we find no abuse of discretion. Sherman properly was allowed to
state his opinions that defendants were active members of the Country Boy Crip criminal
street gang at the time of the charged offenses, and that the offenses were committed for
the benefit of a criminal street gang. (People v. Garcia (2007) 153 Cal.App.4th 1499,
1512-1514; see People v. Lindberg, supra, 45 Cal.4th at pp. 48-50; People v. Gonzalez,
supra, 126 Cal.App.4th at pp. 1550-1551; People v. Valdez (1997) 58 Cal.App.4th 494,
226.
507-509.) He was also properly permitted to express an opinion concerning intent.
Significantly, he did not give an opinion concerning the subjective intent of defendants
on trial, but rather answered hypothetical questions that paralleled the evidence presented
by the prosecution. (Compare Gonzalez, supra, 38 Cal.4th at p. 946 with In re Frank S.
(2006) 141 Cal.App.4th 1192, 1195-1196, 1197-1198; see People v. Ferraez (2003) 112
Cal.App.4th 925, 928, 930-931 [gang expert properly allowed to opine, based on
hypothetical facts paralleling evidence, that drugs in defendant’s possession were
intended to be sold for benefit of or in association with gang, and that proceeds would be
used to benefit gang].)
Vang, supra, 52 Cal.4th 1038 is instructive. There, the challenged hypothetical
questions were designed to elicit the expert’s opinions on whether the crime was
committed for the benefit of and in association with or at the direction of a particular
gang, and whether the charged assault was gang motivated. (Id. at p. 1043.) The court
stated, in part:
“To the extent Killebrew, supra, 103 Cal.App.4th 644, purported to
condemn the use of hypothetical questions, it overlooked the critical
difference between an expert’s expressing an opinion in response to a
hypothetical question and the expert’s expressing an opinion about the
defendants themselves. Killebrew stated that the expert in that case ‘simply
informed the jury of his belief of the suspects’ knowledge and intent on the
night in question, issues properly reserved to the trier of fact.’ [Citation.]
But, to the extent the testimony responds to hypothetical questions, as in
this case …, such testimony does no such thing. Here, the expert gave the
opinion that an assault committed in the manner described in the
hypothetical question would be gang related. The expert did not give an
opinion on whether defendants did commit an assault in that way, and thus
did not give an opinion on how the jury should decide the case.
“The trial court understood precisely the distinction between (1) not
permitting the expert to opine that the particular defendants committed a
crime for a gang purpose, and (2) permitting the expert to express his
opinion in response to hypothetical questions….
227.
“[There may be concern] that permitting these hypothetical
questions invades the province of the jury. However, as noted, expert
testimony is permitted even if it embraces the ultimate issue to be decided.
[Citation.] The jury still plays a critical role in two respects. First, it must
decide whether to credit the expert’s opinion at all. Second, it must
determine whether the facts stated in the hypothetical questions are the
actual facts, and the significance of any difference between the actual facts
and the facts stated in the questions. The trial court instructed the jury on
both of these roles….[125]” (Vang, supra, 52 Cal.4th at pp. 1049-1050, fn.
omitted.)
The court further stated: “Whether to accept the expert’s opinion and, if so, how
to apply it to the actual case was for the jury to determine. But the trial court properly
permitted the questions and answers.” (Vang, supra, 52 Cal.4th at p. 1050, fn. 5.)
Defendants say, however, that the testimony ran afoul of section 29. That statute
provides: “In the guilt phase of a criminal action, any expert testifying about a
defendant’s mental illness, mental disorder, or mental defect shall not testify as to
whether the defendant had or did not have the required mental states, which include, but
are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes
charged. The question as to whether the defendant had or did not have the required
mental states shall be decided by the trier of fact.”
Assuming the issue was preserved despite the lack of specific objection based on
the statute (see People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208), we do not believe
section 29 is applicable. There was no testimony concerning any defendant’s mental
illness, mental disorder, or mental defect. (See People v. Adan (2000) 77 Cal.App.4th
390, 393, fn. 3.) In our opinion, the last sentence of the statute cannot be divorced from
the first sentence, and, insofar as we can tell, the statute is most usually invoked with
respect to expert psychiatric or psychological testimony. (See, e.g., People v. Coddington
(2000) 23 Cal.4th 529, 582-583, overruled on another ground in Price v. Superior Court
125 The trial court in the present case so instructed the jury, as well.
228.
(2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Bordelon (2008) 162 Cal.App.4th 1311,
1315, 1326-1328; People v. Nunn (1996) 50 Cal.App.4th 1357, 1363-1365 & cases cited
therein.)
We also conclude the trial court did not abuse its discretion by permitting Sherman
to testify concerning such matters as whether the pattern of criminal activity was
common knowledge and whether it was uncommon for gang members to go into detail
when bragging about their crimes. We recognize that a person may be qualified as an
expert on one subject, yet not be qualified as an expert on matters beyond the scope of
that subject. (People v. Hill, supra, 191 Cal.App.4th at p. 1120.) Given Sherman’s
extensive training and experience, however, the trial court did not err by concluding he
was adequately qualified to testify on the topics. Moreover, in light of his frequent
conversations with gang members, an adequate foundation was laid. (See, e.g., Gardeley,
supra, 14 Cal.4th at p. 620; People v. Hill, supra, 191 Cal.App.4th at pp. 1124-1125.)
Lastly, the test of sufficiency of the evidence is whether, reviewing the whole
record in the light most favorable to the judgment below, substantial evidence is
disclosed such that a reasonable trier of fact could find the essential elements of the
crimes, enhancements, and special circumstances beyond a reasonable doubt. (People v.
Alvarez, supra, 14 Cal.4th at p. 225; People v. Johnson (1980) 26 Cal.3d 557, 578;
People v. Augborne (2002) 104 Cal.App.4th 362, 371; accord, Jackson v. Virginia (1979)
443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible,
and of solid value.” (People v. Johnson, supra, 26 Cal.3d at p. 578.) An appellate court
must “presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An
appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542,
548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are
functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353,
367). This standard of review applies regardless of whether the prosecution relies
229.
primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th
1107, 1125.)
Having concluded Sherman’s opinions were properly admitted, we further
conclude his testimony, coupled with the other evidence presented at trial, is sufficient to
uphold the jury’s verdicts and special findings on the charges and allegations under
section 186.22, subdivisions (a) and (b) and section 190.2, subdivision (a)(22). (See
People v. Ferraez, supra, 112 Cal.App.4th at p. 931.)126
8. Impeachment of Defense Witnesses
The testimony of defense witnesses Theodore Richard and Kevin Griffith is
summarized in the statement of facts, ante. Although presented by Johnson, their
testimony affected all defendants, who now say the trial court erred by allowing them to
be improperly impeached.127
a. Theodore Richard
Richard was called to impeach Dupree Jackson. In turn, the prosecution
impeached Richard’s credibility with his prior convictions. Lee says the trial court erred
by permitting the prosecutor to delve into the details of the crimes underlying those
convictions. Johnson and Dixon join. The People say the details were relevant and
properly admitted to contradict an aspect of Richard’s testimony.
126 We would reach this conclusion even if Sherman should not have been permitted
to offer his opinions on intent. The erroneous admission of expert testimony is assessed
under the Watson standard (People v. Prieto, supra, 30 Cal.4th at p. 247), and the
evidence on the point was overwhelming even without those pieces of opinion testimony.
127 To the extent any particular defendant may not have objected to, or joined in
another defendant’s objection to, a particular question or answer, we find no forfeiture
because it is readily apparent further objections would have been futile. (See People v.
Alfaro, supra, 41 Cal.4th at p. 1325.)
230.
1. Background
During cross-examination, Jackson testified that Richard was his cousin. While
Jackson was in the Witness Relocation Program, Richard visited him at a motel in
Bakersfield at Jackson’s invitation. Although they talked, Jackson did not tell Richard
that he (Jackson) needed to lie in court to avoid being prosecuted for killing Raybo.
Richard said he had talked to Johnson, who asked Richard to tell Jackson not to testify.
Richard wanted Jackson to sabotage his testimony. Jackson lied to Richard and agreed to
do so. Jackson never reported this conversation to anyone.
According to Jackson, Richard was a gang member. Jackson knew Richard had
been in federal prison for about 10 years on a drug charge. He conceded Johnson would
have been about 10 years old when Richard went into custody, and it was unlikely the
two hung out together then. When Richard was released, Johnson was in custody.
On redirect examination, the prosecutor asked if Richard, who was taken into
custody in 1998 or 1999, had a reputation in the hood back then. Jackson responded that
Richard and his father had reputations as being big-time drug dealers. When Richard and
Jackson met in Jackson’s motel room, Richard said he had heard from other family
members that Jackson was a witness in a case involving some of the homies. Richard
said he was going to try to help Jackson get out of it. He said he had plans for Jackson.
He wanted Jackson and Jackson’s brother to be in Richard’s organization, selling
quantities of drugs, not just small amounts. Richard said that if Jackson did not testify,
Richard could clear his name in the hood so the homies would leave him alone. Richard
said Jackson should not take the stand, but if he had to, Johnson told Richard to tell
Jackson to say he was having a relationship with Johnson’s girlfriend, and she had the
idea for Jackson to come into court and lie with her.128
128 Defense objections of relevance, hearsay, and foundation were overruled with
respect to what Jackson said Richard said Johnson said.
231.
On recross-examination, Jackson was asked if Richard was still a drug dealer.
Jackson responded that he would not know because he had been in custody the past seven
months, but Richard still was when Jackson was out of custody. Jackson was aware
Richard had been working for a local construction company since his release, but it was a
cover for Richard’s drug operation. Asked if he (Jackson) had ever had a job to cover up
the fact he was a drug dealer, Jackson responded that he never sold “major dope” and
never got arrested by federal authorities. The court then inquired about the difference
between a federal arrest and a county arrest. Jackson explained it depended on the
amount of drugs being sold, and if it was over half a kilogram or a kilogram, it would be
federal time, whereas small amounts would result in state or county time.
Senior Deputy Little testified that on July 7, 2007, he found some letters at
Dixon’s residence that contained gang writings and were addressed to Dixon. One was
signed “Munchy Locsta.” This was Juaqkeib Oliver, who was sentenced to 25 years to
life in prison for murder. He was also a codefendant with Richard in a conspiracy to
commit murder.
Frederick Wright, a foreman/superintendent for a construction company, testified
that Richard had worked for the company since May 2008. Richard worked full time as a
laborer. The work was physically demanding. Wright considered Richard a “pretty good
worker.”
Richard testified on direct examination that he had worked in construction in June
2008. “At this moment in time,” he did not do anything else for money. Jackson was
like a brother to Richard. Since Richard came home, Jackson had been constantly
seeking him out, and invited Richard to Jackson’s motel room. Richard was never told
by Johnson — whom he had never met — or anyone else to try to convince Jackson not
to come into court. Jackson did not tell Richard why he was testifying in this case;
rather, he told Richard he was not testifying. Jackson said he was afraid of being charged
with Raybo’s murder. Richard spoke to Jackson about this case on several occasions
232.
throughout the summer. Jackson said something about some girl he was dating. Richard
believed her name was Sara. Jackson had a relationship with her and told Richard she
was supposed to be the ex-girlfriend of one of the defendants. Jackson said she told him
things about a murder. Richard opined that Jackson was “clearly being dishonest.”
Jackson told Richard several lies, telling him different stories at different times. Jackson
admitted he was lying and said he would not testify.
On cross-examination, the prosecutor elicited that Richard was a convicted felon,
having been prosecuted by the United States Attorney’s Office and, in February 1999,
convicted by a jury in federal court. Although Richard was unsure of the code section
under which he was convicted, he was convicted of conspiracy to distribute and
possession for sale of cocaine, and sentenced to 14 years. He believed his case was
investigated by the FBI. While he was in federal custody, Richard was returned to Kern
County. Asked by the prosecutor if he was prosecuted for conspiracy to commit murder,
he responded that he was not sure if that was actually charged. He pled no contest in
April 2000 to what he believed to be felony assault with a firearm. Asked if his
codefendant or coconspirator in the case was Juaqkeib Oliver, also known as “Munch,”
Richard said he was not sure. He went to trial; he did not recall anyone else being there
with him. He could not be sure if there was testimony about Oliver, as he was not sure
who Oliver was.
The prosecutor asked the court to take judicial notice of the October 22, 1999,
information in Richard’s Kern County case. According to the court, overt act number six
alleged that on or about July 2, 1997, Juaqkeib “Little Munch” Oliver was sitting in the
right front passenger seat of a Honda Accord. Overt act number nine also involved
Oliver.
Asked again by the prosecutor if he knew who Juaqkeib Oliver was, Richard said
he recalled him. When the prosecutor pressed Richard to admit he was accused of
conspiring to do an act with Oliver, counsel for Johnson objected and represented that
233.
Richard was convicted of a 1997 assault. He argued Richard had admitted a conviction
for assault, a crime of moral turpitude; anything beyond that was an undue consumption
of time on a side issue. The court ruled the prosecutor had a right to impeach. Richard
then testified he believed he knew about whom the prosecutor was talking. He went to
trial and possibly heard Oliver’s name mentioned. It was long ago.
The prosecutor then asked Richard if it was correct that in the federal case, he was
convicted of distributing kilo quantities of cocaine. Richard said no, he was definitely
guilty of being involved with cocaine and using it, and according to the authorities, he
sold cocaine. He did not conspire with anyone, however, although he was found guilty of
that. He did sell cocaine “before.” Over defense objections on grounds of irrelevance,
Evidence Code section 352, and improper impeachment, the prosecutor was then
permitted to ask if Richard knew what a kilo was and how much cocaine he sold.
Richard answered that he sold $5, $10, and $20 worth of rock cocaine. Asked by the
court how he got into federal court, Richard responded that he was not sure, but the FBI
arrested him near Chicago. When the prosecutor asked if Richard was wanted by the FBI
for a period of time before he was arrested, the trial court overruled defense objections on
relevance, speculation, and Evidence Code section 352 grounds.
The prosecutor then asked if, when he was selling cocaine, Richard was working
with a group of other people, the quantities of cocaine he sold, where he sold it, and how
he sold it — by standing on a street corner, in houses, or over the phone. When the
prosecutor asked the source of Richard’s cocaine, the trial court sustained the defense’s
relevance objection.
The prosecutor then elicited Richard’s denial that he was ever a gang member or
sold drugs to gang members. After delving into the nature of the relationship between
him and Jackson, she returned to the subject of where Richard sold drugs and asked him
to name specific places. Counsel for Lee and Johnson objected on grounds of relevance
and undue consumption of time. The prosecutor argued that it tended to impeach Richard
234.
regarding his level of involvement, and also corroborated Jackson with respect to some
statements he made about Richard. After an unreported sidebar conference, the
prosecutor moved to other subjects. She examined Richard on his conversations with
Jackson about this case, and elicited that he never called the police, the district attorney’s
office, or the defense attorneys to tell them Jackson had lied. In addition, she elicited that
he had twice been present and watched portions of the trial, whereupon, he claimed, he
felt compelled to come forward and say what he knew.
After questioning Richard about his acquaintance with members of Dixon’s and
Lee’s families, the prosecutor asked if he was wanted for a period of time by the FBI.
When he said he was not sure, she asked if he had any idea why the FBI would think he
was hanging out with Crip gang members. When Richard responded that they never said
that, the prosecutor asked if he had ever seen any wanted posters for himself. He
answered no. Counsel for Johnson objected on grounds of relevance and prejudicial
effect. The prosecutor responded, “I want to ask him a question in it.” (Sic.) The court
suggested it was going to be used to refresh Richard’s recollection, and she agreed. The
court then permitted her to show Richard a wanted poster, which he said he had never
seen before. She had Richard read the information contained on the poster and
questioned him about it, including the representation that he associated with Crip gang
members.
On redirect examination, counsel for Johnson asked Richard if he had any
understanding of how a decision was made to prosecute through the state or federal
government. Richard responded that he was not sure, but knew that if there was a case
involving someone being prosecuted by the federal government and an individual crossed
paths with that person, chances were that regardless of the amount of drugs concerned,
the federal authorities would try to get the individual involved in the case because that
individual associated with the other person.
235.
At the conclusion of the prosecution’s case in rebuttal, the prosecutor formally
asked the court to take judicial notice of the file of Richard’s Kern County case, and she
moved the information into evidence. Counsel for Lee objected on the grounds that if the
information contained unconvicted counts, those counts were not subject to disclosure
before the jury. Counsel conceded the court could take judicial notice of a charging
document that corresponded to a conviction, but argued, on relevance and Evidence Code
section 352 grounds, that anything additional should not go before the jury. The
prosecutor responded that the relevance was the mention of Oliver and impeachment of
Richard. After a sidebar conference, the court admitted the information into evidence.
Jurors were later instructed that in evaluating a witness’s testimony, they could
consider anything that reasonably tended to prove or disprove the truth or accuracy of the
testimony, including whether the witness had been convicted of a felony and whether the
witness had engaged in other conduct that reflected on his or her believability. Jurors
were further instructed that if they found a witness had been convicted of a felony or had
committed a crime or other misconduct, they could consider that fact in evaluating the
credibility of the witness’s testimony, but that it did not necessarily destroy or impair the
witness’s credibility; rather, it was up to the jury to decide the weight of that fact and
whether that fact made the witness less believable.
2. Analysis
Evidence Code section 780 permits the trier of fact to consider, in determining the
credibility of a witness, “any matter that has any tendency in reason to prove or disprove
the truthfulness of his testimony at the hearing ….” Evidence Code section 788 allows
felony convictions to be used to attack the credibility of a witness. Such convictions can
be shown by the witness’s testimony or by the record of the judgment.129
129 To be relevant and, hence, admissible, the felony conviction must be one that
necessarily involves moral turpitude, though the immoral trait may be one other than
dishonesty. (People v. Castro, supra, 38 Cal.3d at p. 306.) Richard’s convictions met
236.
It was long settled in California that a witness could be impeached by proof he or
she had suffered a prior felony conviction or convictions, and that the number, dates, and
specific felonies could be shown. (E.g., People v. Smith (1966) 63 Cal.2d 779, 790;
People v. David (1939) 12 Cal.2d 639, 646; People v. Jones (1963) 216 Cal.App.2d 494,
494-495.) The prosecutor could not, however, go beyond the fact of such conviction(s)
and the nature of the crime(s) committed. (People v. David, supra, 12 Cal.2d at p. 646.)
Accordingly, questions concerning the details and circumstances of the prior crime or
crimes, including the length of time served and conditions surrounding parole, were
improper (People v. Smith, supra, 63 Cal.2d at p. 790; People v. Szadziewicz (2008) 161
Cal.App.4th 823, 842) unless the defendant first sought to mislead the jury or minimize
the facts of the conviction (People v. Heckathorne (1988) 202 Cal.App.3d 458, 462).
With the addition of section 28, subdivision (d) (now subd. (f)) to article I of the
California Constitution, however, the issue has become less clear.130 In People v. Harris
(1989) 47 Cal.3d 1047, 1081, disapproved on another ground in People v. Wheeler
(1992) 4 Cal.4th 284, 299, footnote 10, the California Supreme Court determined that this
provision “effected a pro tanto repeal of Evidence Code section 790,” and it found “no
this requirement. (See People v. Hinton (2006) 37 Cal.4th 839, 888 [assault with firearm
is crime of moral turpitude]; People v. Harris (2005) 37 Cal.4th 310, 337 [same re:
possession of drugs for sale]; United States ex rel. De Luca v. O’Rourke (8th Cir. 1954)
213 F.2d 759, 762 [same re: conscious participation in illegal drug traffic]; Portaluppi v.
Shell Oil Co. (E.D.Va. 1988) 684 F.Supp. 900, 904, fn. 13 [same re: narcotics possession
with intent to distribute]; cf. People v. Garrett (1987) 195 Cal.App.3d 795, 799 [question
in conspiracy cases is whether object of conspiracy involved moral turpitude].)
130 Article I, section 28, subdivision (f)(2) provides in part: “Right to Truth-in-
Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the
membership in each house of the Legislature, relevant evidence shall not be excluded in
any criminal proceeding …. Nothing in this section shall affect any existing statutory
rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782, or
1103.” Subdivision (f)(4) provides in part: “Use of Prior Convictions. Any prior felony
conviction of any person in any criminal proceeding, … shall subsequently be used
without limitation for purposes of impeachment … in any criminal proceeding.”
237.
basis on which to distinguish Evidence Code sections 786 and 787.” Accordingly,
statutes barring admission, to attack or support a witness’s credibility, of (1) evidence of
traits of character other than honesty or veracity or their opposites (Evid. Code, § 786),
(2) specific instances of conduct relevant only as tending to prove a trait of character (id.,
§ 787), and (3) evidence of good character, unless evidence of bad character was first
admitted (id., § 790), no longer apply in criminal cases.
Then, in People v. Wheeler, supra, 4 Cal.4th at page 288, the California Supreme
Court further held the provision “abrogate[d] the felony-convictions-only rule in criminal
cases and [gave] criminal courts broad discretion to admit or exclude acts of dishonesty
or moral turpitude ‘relevant’ to impeachment ….” In criminal proceedings, the measure
“supersedes all California restrictions on the admission of relevant evidence except those
preserved or permitted by the express words of section 28[, subdivision (f)(2)] itself.
[Citations.]” (Id. at p. 291.) Accordingly, the court concluded “that if past criminal
conduct amounting to a misdemeanor has some logical bearing upon the veracity of a
witness in a criminal proceeding, that conduct is admissible, subject to trial court
discretion, as ‘relevant’ evidence under section 28[, subdivision (f)(2)].” (Id. at p. 295.)
Our high court has since broadly stated, “A witness may be impeached with any
prior conduct involving moral turpitude whether or not it resulted in a felony conviction,
subject to the trial court’s exercise of discretion under Evidence Code section 352.”
(People v. Clark (2011) 52 Cal.4th 856, 931, fn. omitted, italics added.) The court has
not, however, specifically addressed the question whether, when evidence of a felony
conviction is admitted for impeachment, the details and circumstances of the underlying
felony are now also admissible, subject to the limits of Evidence Code section 352. (See
People v. Watson (2008) 43 Cal.4th 652, 685-686; People v. Smith (2003) 30 Cal.4th 581,
633.)
We fail to see how the “no details” limitation reasonably could have survived the
addition of article I, section 28, subdivision (f)(2) of the California Constitution, to the
238.
extent that, in any given case, such details have relevance beyond the fact of the prior
felony conviction itself and are not more prejudicial than probative under Evidence Code
section 352. For example, evidence tending to contradict a witness’s testimony is
relevant for impeachment purposes (People v. Cunningham, supra, 25 Cal.4th at
p. 1025), and even a so-called collateral matter may be relevant to a witness’s credibility
(People v. Rodriguez (1999) 20 Cal.4th 1, 9).
We need not determine the viability of the limitation in the present case, however,
because even assuming the limitation no longer exists, the trial court abused its discretion
by failing to curtail, under Evidence Code section 352, the prosecutor’s cross-
examination of Richard concerning the facts and circumstances underlying his prior
convictions. This is especially true of evidence concerning whether Richard was wanted
by the FBI for a period of time, whether he sold drugs with a group of people, and the
information contained on his wanted poster. The events were fairly remote. Any
probative value in terms of impeaching Richard’s denial of ever being a gang member
were clearly outweighed by Evidence Code section 352 concerns, including consumption
of time. Although showing Richard was acquainted with Oliver was relevant to show
bias and interest, the prosecutor certainly did not need to reveal that the original
conspiracy charge in the state prosecution involved a conspiracy to shoot someone.
“‘Absent fundamental unfairness, state law error in admitting evidence is subject
to the traditional Watson test: The reviewing court must ask whether it is reasonably
probable the verdict would have been more favorable to the defendant absent the error.’
[Citations.]” (People v. Watson, supra, 43 Cal.4th at p. 686.) Here, even apart from the
matter of Richard’s prior felony convictions, the prosecutor significantly impeached
Richard’s credibility. Moreover, Jackson’s own character and credibility were clearly in
question regardless of whether jurors found Richard to be a credible witness. Under the
239.
circumstances, the error resulted neither in fundamental unfairness nor in cause for
reversal under state law. (See ibid.; People v. Harris, supra, 37 Cal.4th at p. 339.)131
b. Kevin Griffith
Griffith was called to testify about the car used by the people who shot Adrian
Bonner. Lee now says the trial court erred by permitting improper impeachment of
Griffith concerning his distance from the shooting. Johnson and Dixon join. The People
say the question at issue was properly based on good faith.
1. Background
Griffith testified that he saw the red car involved in the Adrian Bonner shooting
both at the time of the incident and later that night. Shannon Fowler’s car was not the
vehicle he saw.
On direct examination, Griffith testified he was about 60 feet from the red car at
the time of the shooting. On cross-examination, he testified his daughter was with him
on the evening of August 11, 2007, both at the time of the shooting and later, but he did
not know if she was coming to court. Later, this took place:
“Q. [by the prosecutor] So at the time you heard those shots, had
you pulled out of the parking lot yet, or were you still in the parking lot?
“A. No. We were about 60 feet from the stop sign on Planz Road --
Planz and Real Road.
“Q. Sixty feet. [¶] Okay. Would it change your opinion if you
knew that your daughter said you were 80 to 90 yards away from the
intersection when this happened?
“A. I don’t know why she told --
“[COUNSEL FOR JOHNSON]: Your Honor, this is hearsay. They
can call the daughter in if they’d like.
131 We would reach the same conclusion even if the “no details” limitation remained
in effect.
240.
“THE COURT: Well, … I think it’s impeachment. [¶] I’m going to
overrule the objection.
“THE WITNESS: I don’t know what my daughter told. I just -- my
version was what I just told you.” (Italics added.)
2. Analysis
“The rule is well established that the prosecuting attorney may not interrogate
witnesses solely ‘for the purpose of getting before the jury the facts inferred therein,
together with the insinuations and suggestions they inevitably contained, rather than for
the answers which might be given.’ [Citations.]” (People v. Wagner (1975) 13 Cal.3d
612, 619-620; see also People v. Pitts (1990) 223 Cal.App.3d 606, 734 & cases cited
therein.) Accordingly, the California Supreme Court has “held that a prosecutor commits
misconduct by asking ‘a witness a question that implies a fact harmful to a defendant
unless the prosecutor has reasonable grounds to anticipate an answer confirming the
implied fact or is prepared to prove the fact by other means.’ [Citation.] For a
prosecutor’s question implying facts harmful to the defendant to come within this form of
misconduct, however, the question must put before the jury information that falls outside
the evidence and that, but for the improper question, the jury would not have otherwise
heard. [Citation.] Moreover, if ‘the prosecutor is not asked to justify the question, a
reviewing court is rarely able to determine whether this form of misconduct has
occurred.’ [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 859-860, italics omitted.)
“Therefore, a claim of misconduct on this basis is waived absent a timely and specific
objection during the trial. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 481, italics
added.)
A hearsay objection, as was made here, does not preserve a claim of prosecutorial
misconduct or improper impeachment. (People v. Foster, supra, 50 Cal.4th at p. 1353;
see generally People v. Hill, supra, 17 Cal.4th at p. 820.) In any event, the prosecutor’s
good faith is apparent from the record. During a discussion outside the jury’s presence
concerning whether Griffith’s 911 call was admissible as an excited utterance, the
241.
prosecutor represented that Griffith told the police he only heard the shooting, and that
Griffith’s daughter said they were 80 to 90 yards away when it happened. It was
apparent the prosecutor was relying on a police report; since defense counsel did not
object to lack of discovery, it is equally apparent they knew the daughter had indeed
estimated the distance as 80 to 90 yards. Accordingly, there was no misconduct. (See
People v. Friend (2009) 47 Cal.4th 1, 80-81.)
Finally, were we to find error, we would conclude it was harmless. Griffith stood
by his answer. While this does not cure any impropriety (People v. Wagner, supra, 13
Cal.3d at pp. 619-620; People v. Pitts, supra, 223 Cal.App.3d at p. 734), here the
prosecutor went on to ask Griffith how many car lengths he believed 60 feet to be.
Griffith responded that it was four or five, and that he was approximately four or five car
lengths away when he heard the shots. Under the circumstances, jurors were equally as
likely to conclude the daughter’s estimate was wrong as they were to conclude Griffith
was farther away than he testified. Moreover, Griffith’s testimony was otherwise
impeached and, perhaps most significantly, the prosecution presented witnesses to
establish that the car Griffith saw pulled over the night of the shooting could not have
been involved.
B. Shackling
Dixon, the only defendant to testify, was subjected to physical restraints partway
through trial. He now says the trial court’s decision in this regard constituted an abuse of
discretion that requires reversal. The People say the trial court’s decision was sufficiently
justified, and in any event, any error was harmless under the circumstances.
1. Background
Throughout trial, defendants were all in custody, Johnson and Lee in the custody
of the Kern County Sheriff’s Department, and Dixon — who was serving a sentence on
charges arising out of the vehicle pursuit/Tec-9 incident — in the custody of the
California Department of Corrections and Rehabilitation (CDCR). Hearing on in limine
242.
motions began November 4, 2008; jury selection began November 17, 2008; and opening
statements began December 12, 2008.
On November 14, 2008, the court determined that there should be at least one
deputy or correctional officer in the courtroom per defendant, and that the correctional
officers should be in plainclothes. On November 17, just before jury selection began, it
was called to the court’s attention that defendants were still handcuffed and in leg irons.
The court ordered them unshackled, noting it had no evidence that any had made attempts
to escape or would endanger anyone’s safety.
On December 18, 2008, CDCR filed a written request for reconsideration of the
order removing Dixon’s restraints. The motion asserted that Dixon had a documented
history of violent and disruptive crimes, as well as a history of nonconforming behavior
while incarcerated, and so would pose an unreasonable safety risk if he were not
restrained during trial. CDCR recommended placing him in leg restraints or a shock belt,
either of which would not be visible to the jury. CDCR represented that if Dixon were
unrestrained during trial, CDCR could not guarantee public safety. If the court did not
order Dixon restrained, CDCR requested that custody of Dixon be transferred to the Kern
County Sheriff’s Department until the conclusion of trial.
A supporting declaration by the litigation coordinator at Kern Valley State Prison
related that Dixon had a history of violent and sex-related crimes, both in and out of
prison, with a current controlling case of criminal gang activity and a noncontrolling case
of voluntary manslaughter. The declaration listed Dixon’s prior arrests, and related that
while in CDCR custody, Dixon had received several disciplinary violations for indecent
exposure, masturbation with exposure, indecent exposure with priors, disobeying written
orders, tattoos, and battery on an inmate. He had been identified as a member of a
criminal street gang, and was currently housed in an institution for inmates classified as
level IV and requiring close supervision. The declaration asserted that, because Dixon
had a history of violent behavior and had historically presented a lack of respect for law
243.
and CDCR’s rules, he presented a “reasonable likelihood” that he “may” become violent
or attempt to escape, with the fact he was facing a sentence of life without parole
increasing the escape risk. The declaration concluded that he was considered a high risk
of escape or violence, and should remain physically restrained in court, either by leg
restraints or a shock belt. Without such restraint, CDCR was unable to guarantee the
safety of court personnel and the public during trial.
Counsel for Dixon opposed the motion. He noted that they had been in court for
five or six weeks without Dixon causing any problems; in addition, there were three
CDCR officers present, and usually three deputies. Counsel observed that the portion of
the probation report appended to the declaration in support of the motion was from seven
years earlier; moreover, it appeared from the dates that some of the information
concerned Dixon’s father, not Dixon. Counsel noted that Dixon’s current sentence would
expire in August 2009, and that while evidence had yet to be presented in the current
case, Dixon was not going to jeopardize his possible release date. Counsel further argued
that Dixon would have to go by him before escaping, and that Senior Officer Sherman —
a big man — was also nearby.
The court stated it had not had any problems with any of the defendants. An
officer from CDCR represented that they had noiseless plastic restraints. Counsel for Lee
reiterated that Dixon had been in court for weeks with no physical or verbal outbursts;
there was a deputy located behind each defendant, with the closest one within six to eight
feet of Dixon; Sherman, who was the People’s investigating officer, was at counsel table
for the People, located at the barrier between the gallery and the counsel area; and there
were three plainclothed correctional officers seated in the audience.
After further discussion about CDCR’s alternative request that Dixon be
transferred to county custody, the court asked the CDCR officer to show the plastic
restraints to counsel for Dixon, while it did some further research on the issue. It
244.
expressed concern that it had not seen anything from any defendant that would indicate
any of them posed a threat. The court stated the matter would remain under submission.
By letter dated January 13, 2009, CDCR requested the opportunity personally to
appear and address the court’s concerns. It noted that while the district attorney’s office
had been present at the earlier hearing, that office was not CDCR’s legal counsel or a
party to CDCR’s motion.132 In discussing the letter, the court observed it did not feel
there was a need for physical restraints, but it set a further hearing on the matter.
The hearing was held on January 26, 2009. CDCR represented that Dixon had an
extensive, violent criminal history, and had also received a total of 13 rules violation
reports while in prison. In addition, Dixon was charged at the beginning of December
with battery on an inmate in a mutual combat situation and with being out of bounds in
prison, thus indicating a propensity to disobey orders. CDCR further noted Dixon had
received some minor violations for tattooing and grooming despite prior warnings, thus
showing impulsivity and an ability to defy authority, and he also had repeated violations
for sexual offenses and indecent exposure. CDCR asserted that the fact Dixon was
classified at a very high level in CDCR’s classification system indicated Dixon’s violence
and escape threat. CDCR argued that all these things established manifest need for
physical restraints, which could be harmonized with Dixon’s right to a fair trial because
leg restraints would be silent and not seen by the jury. CDCR noted that Dixon was in
civilian clothes. If he attempted to escape, CDCR officers in the courtroom would have
to respond, and, if Dixon were unrestrained, might have no option but to use deadly force
to stop him. Because Dixon was in civilian clothes, he would be able to blend in with
anyone in the courtroom, whereas if he were restrained, the officers would be able to
control him immediately rather than resorting to an escalated response or not being able
to respond at all if Dixon slipped into a crowd and could not be seen.
132 CDCR is represented by the Attorney General (AG).
245.
The court observed that there were three uniformed deputies sitting behind
defendants, within eight feet of Dixon; three correctional officers in plainclothes on either
side of the exit doors at the back of the courtroom; and usually Senior Officer Sherman
sitting “directly behind the Elmo.” CDCR responded that given Dixon’s past behavior
inside and outside of prison, plus his recent behavior and the fact there did not need to be
a risk of prejudice, additional security was warranted.
Counsel for Dixon objected to Dixon being subjected to leg restraints. Counsel
pointed out that they had been in court since early November, and Dixon had not caused
any problems. The court agreed with that observation. Counsel pointed out that the other
two defendants were unrestrained, and that being physically restrained had psychological
effects.
The court again observed that none of the defendants had caused any problems in
the court’s presence, and that the court had not been told of any problems in the
courtroom. CDCR argued that case law did not require recent activity or disruptions in
front of the court, and pointed to the recent charge of battery on an inmate. The
prosecutor then observed that Johnson had been involved in a situation while in court,
and so “the whole idea that everybody’s been acting like choirboys throughout the course
of this case is not correct.” The prosecutor also noted the statement Lee made to Johnson
about Agustin in the back hallway. The prosecutor stated his agreement with CDCR’s
position.
The sheriff’s department joined in requesting physical restraints. It argued that if
there was a large crowd in the gallery, there was the potential for a civilian-clothed
individual to slip from the courtroom, possibly with help from someone, even with the
number of officers present. It noted an incident in another trial in which there was a
power outage and the emergency lights did not immediately come on, and asserted such
an event would provide Dixon an excellent opportunity to slip from the courtroom if
unrestrained. It suggested that as all the evidence was presented and Dixon realized he
246.
might be convicted, the likelihood of an escape attempt would increase, regardless of
however well behaved Dixon previously had been.
The prosecutor added that there had been issues with the behavior of some of the
people in the audience during the course of the trial.133 CDCR pointed out that both it
and the sheriff’s department concurred on the risk assessment, and, while not binding, the
fact that trained law enforcement had assessed the security risk should be considered by
the court.
At the conclusion of argument, the court found a manifest need for appropriate
restraints. Accordingly, it ordered that noise-free restraints be used on Dixon. It further
ordered that CDCR continue to house Dixon and provide assistance from the three
correctional officers who had been present throughout the trial. When court resumed
following the lunch recess, counsel for Dixon announced that Dixon was wearing leg
shackles.
Later during trial, Deputy Maxwell testified concerning Lee’s statement to
Johnson about Agustin. At the request of counsel for Lee and Dixon, the court
admonished the jury, “[T]he fact that a defendant and/or witness is in custody and/or is
physically restrained is not evidence. In other words, a person can be in jail because
perhaps they can’t make bail. Do not speculate about the reason. You must completely
disregard this circumstance in deciding the issues in this case. Do not consider it for any
purpose or discuss it during your deliberations.” Jurors were again so admonished during
final instructions.
133 We are not certain of what issues the prosecutor meant. The record does reflect,
however, that on December 22, 2008, the court noted it had been advised of some gang
confrontations outside the courtroom. On December 29, 2008, one of the jurors reported
that someone had approached his wife at lunch, mentioned the person recognized the
juror, and said one of the person’s nephews was on trial and not to hang him.
247.
Dupree Jackson was in custody at the time he testified. Although he was already
seated on the witness stand when the jury entered the courtroom, he stood and was sworn
in front of the jury. After breaks in his testimony, he was again seated on the witness
stand when the jury was brought in.
Dixon was sworn outside of the jury’s presence. He was seated on the witness
stand when the jury was brought in, and jurors were informed that in their absence, he
had been advised of his constitutional rights and sworn. At one point, when his attorney
asked to call two witnesses out of order, the court stated, outside the jury’s presence, that
after the witnesses testified, a break would be taken “to transition Mr. Dixon back to the
stand outside the presence of the jury.” After this and other breaks, Dixon was again
seated on the witness stand when the jury was brought back in.
Emmanuel Burts, Jr., who was also in custody when he testified, was also sworn
and seated on the witness stand outside the jury’s presence. As in Dixon’s case, the court
informed jurors that Burts had been previously advised of his constitutional rights and
sworn.
After the verdicts for Johnson were read, Johnson directed several expletives
toward the jury and the court. He was restrained and removed from the courtroom.
2. Analysis
“[T]he Fifth and Fourteenth Amendments [to the United States Constitution]
prohibit the use of physical restraints visible to the jury absent a trial court determination,
in the exercise of its discretion, that they are justified by a state interest specific to a
particular trial.” (Deck v. Missouri (2005) 544 U.S. 622, 629.) Under state law, “a
defendant cannot be subjected to physical restraints of any kind in the courtroom while in
the jury’s presence, unless there is a showing of a manifest need for such restraints.”
(People v. Duran (1976) 16 Cal.3d 282, 290-291, fn. omitted (Duran); see also § 688
[“No person charged with a public offense may be subjected, before conviction, to any
more restraint than is necessary for his detention to answer the charge.”].)
248.
We review a trial court’s decision to shackle a defendant for abuse of discretion.
(People v. Cunningham, supra, 25 Cal.4th at p. 987.) Under Duran’s standard, however,
“the trial court’s discretion is relatively narrow. [Citation.] ‘Manifest need’ arises only
upon a showing of unruliness, an announced intention to escape, or ‘[e]vidence of any
nonconforming conduct or planned nonconforming conduct which disrupts or would
disrupt the judicial process if unrestrained ….’ [Citation.] Moreover, ‘[t]he showing of
nonconforming behavior … must appear as a matter of record …. The imposition of
physical restraints in the absence of a record showing of violence or a threat of violence
or other nonconforming conduct will be deemed to constitute an abuse of discretion.’
[Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 651, disapproved on another ground in
People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
A trial court must make its own independent determination of the need for
physical restraints, and may not rely solely on the judgment of court security personnel
(People v. Mar (2002) 28 Cal.4th 1201, 1218; People v. Hill, supra, 17 Cal.4th at p. 841)
or on “rumor and innuendo” (People v. Cox, supra, 53 Cal.3d at p. 652). The court is not
required to hold a formal evidentiary hearing on the matter, “but [can] base its
determination on factual information properly brought to its attention. [Citation.]”
(People v. Medina, supra, 11 Cal.4th at p. 731.)
We find the requisite “‘manifest need’” missing in the present case. CDCR cited
Dixon’s criminal history. A defendant’s record of violence, or the fact he or she is a
prison inmate, does not by itself justify shackling. (People v. Cunningham, supra, 25
Cal.4th at p. 986; Duran, supra, 16 Cal.3d at p. 293.) Nor, in our view, does the fact of
gang membership. Dixon had received 13 rules violations during his time in prison, but
nothing suggests all 13 were acquired during the term he was serving at the time of trial.
Rather, it appears CDCR took into account those received during the term Dixon served
for his voluntary manslaughter conviction. Despite CDCR’s insistence Dixon was
violent, only one incident brought to the trial court’s attention involved violence, and that
249.
was a mutual combat situation.134 Nothing presented to the trial court supported CDCR’s
assessment that Dixon was an escape risk. It appears he was charged with “being out of
bounds” during the same incident that gave rise to the battery charge. This merely
suggests the fight occurred somewhere not readily visible to prison personnel. The other
circumstances cited by CDCR, the prosecutor, and the sheriff’s department — the length
of the sentence faced by Dixon, who might perceive the evidence was going against him;
the fact there had been problems involving audience members; Dixon being dressed in
civilian clothing in a courtroom that might suffer a power outage; and that Dixon’s
codefendants had not been “choirboys” — were either speculative or did not establish
any individualized suspicion that Dixon himself would engage in nonconforming
conduct. (See People v. Seaton (2001) 26 Cal.4th 598, 652.)
Weighing against the foregoing was Dixon’s behavior in connection with the court
proceedings. There was absolutely no suggestion any of his failures to obey rules or
orders, or any violence, were related to courtroom proceedings, past or present, or
involved any of the personnel charged with courtroom security or with, for example,
transporting Dixon to and from his appearances. (Compare, e.g., People v. Lomax, supra,49 Cal.4th at pp. 559-560, 562 [defendant’s unprovoked violent attack on bailiff in
courtroom holding cell sufficient to warrant restraints]; People v. Gamache, supra, 48
Cal.4th at pp. 368-370 [sufficient showing where defendant found with hacksaw, plans
for homemade silencer, and written escape plan, and deputies intercepted letters
suggesting defendant had plans to disrupt proceedings]; People v. Wallace, supra, 44
Cal.4th at pp. 1049-1050 [showing sufficient where defendant had 16 rules violations
while awaiting trial in county jail, and violations included five jailhouse fights and
134 Nothing suggests any of Dixon’s purported sexual offenses involved force or
violence or, for that matter, anyone other than himself and, we surmise, the person or
persons who viewed his actions.
250.
possession of illegal razors]; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1032
[showing sufficient where based on credible reports defendant had attacked another
inmate with typewriter and threatened to kill deputies, in addition to which trial court
stated it had observed defendant’s demeanor in court and believed defendant was not a
compliant person]; People v. Cunningham, supra, 25 Cal.4th at pp. 987-988 [physical
restraints proper, although defendant had not acted violently during courtroom
appearances, where defendant had been found in possession of handcuff key, courtroom
had no lock, and bailiff was sometimes required to turn away from defendant when
preoccupied with various tasks]; People v. Pride (1992) 3 Cal.4th 195, 231-233 [showing
sufficient where defendant, who had muscular build, made threats of violence and
behaved hostilely toward deputies who transported him to and from courtroom]; People
v. Livaditis (1992) 2 Cal.4th 759, 773-774 [showing sufficient where sheriff’s department
received information from confidential informant about possible escape attempt by
defendant with outside help, and defendant had history of prior escape attempts]; People
v. Sheldon (1989) 48 Cal.3d 935, 945-946 [evidence indicated substantial risk defendant
might attempt escape, thus justifying shackling, where defendant’s confederate was found
to possess handcuff key, evidence from confidential informant indicated defendant might
also have access to such a key, defendant had committed five assaults on other inmates,
and defendant was facing life prison term in another state]; People v. Condley (1977) 69
Cal.App.3d 999, 1006 [mere showing each defendant had prior felony convictions
involving use of force or violence insufficient, standing alone, but reached threshold of
“‘manifest need’” when coupled with two recent joint escape attempts and one
defendant’s prior conviction for escape by means of force or violence] with, e.g., People
v. Cox, supra, 53 Cal.3d at p. 652 [although shackling decision not based on general
policy, neither did it show necessity for restraints where, while there was undercurrent of
tension and charged emotion on all sides, record did not contain single substantiation of
violence or threat of violence on defendant’s part].)
251.
People v. Hawkins (1995) 10 Cal.4th 920 (Hawkins), overruled on another ground
in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Blakeley (2000) 23 Cal.4th
82, 89, comes closest to supporting the trial court’s ruling. There, the California Supreme
Court upheld the trial court’s decision to physically restrain the defendant, stating:
“We agree with defendant that his record of violence, or the fact that
he is a capital defendant, cannot alone justify his shackling. [Citation.] But
in this case, defendant’s three reported fistfights in prison, together with his
extensive criminal history, are sufficient to support the trial court’s order to
shackle defendant, inasmuch as they demonstrate instances of ‘violence or
nonconforming conduct’ while in custody. The trial court was therefore
within its discretion to order the shackling of defendant.
“Defendant argues that three fistfights in jail after being housed
there for one and one-half years is ‘not unusual’ and was insufficient to
justify the shackling. He claims rather that shackling is justified only when
a defendant has attempted to disrupt courtroom proceedings or to escape
from jail …. We have never placed such preconditions on the trial court’s
exercise of its discretion. When, as in this case, there were multiple
instances of violent and nonconforming behavior while in jail, as well as an
extensive background of criminal and violent activity, we will generally not
second-guess the trial court’s decision to restrain a defendant.” (Hawkins,
supra, 10 Cal.4th at p. 944.)
In Hawkins, the defendant’s history of violence, both in and out of custody, was
significantly more extensive than that of Dixon. Hawkins had suffered eight prior felony
convictions and had committed uncharged assaults, two of which involved him striking
or fighting with police. In addition (although it is unclear whether this incident had
occurred at the time the court held the hearing on the sheriff’s request for physical
restraints), the defendant was involved in an incident in jail in which he threatened the
lives of the guards. Moreover, a syringe had been discovered in his cell. (Hawkins,
supra, 10 Cal.4th at pp. 937, 943.)
We recognize that a trial court is entitled to take a cautious approach in light of all
the information before it, and is not required to wait until confronted with a violent or
disruptive incident in front of the jury before ordering restraints. (See People v. Pride,
252.
supra, 3 Cal.4th at p. 233.) In addition, the decision to impose physical restraints need
not be based on the conduct of the defendant at the time of trial. (People v. Livaditis,
supra, 2 Cal.4th at p. 774.) In Dixon’s case, however, there was absolutely no evidence
of violence or nonconforming conduct, or planned violence or nonconforming conduct,
that “would disrupt the judicial process if unrestrained ….” (Duran, supra, 16 Cal.3d at
p. 293, fn. 11.) Significantly, the trial court twice found no cause to impose physical
restraints, once even after information concerning Dixon’s conduct in prison was brought
to its attention. The record does not suggest anything changed in any relevant regard
between the trial court’s implied denial of CDCR’s request for restraints in December
2008, and its granting of the request in January 2009. The only apparent differences are
that in January, a representative of CDCR appeared in person, and the prosecution —
instead of merely submitting the matter as it did in December — now argued for
imposition of restraints. This is not enough to warrant the change in the court’s ruling.
(Compare People v. Pride, supra, 3 Cal.4th at p. 231 & fn. 11 [although many incidents
cited in support of shackling order took place before April, at which time court and
counsel informally agreed physical restraints did not seem necessary, court apparently
was not aware of them until June hearing on sheriff’s request to impose restraints].)
The People quote the statement in People v. Gamache, supra, 48 Cal.4th at
page 370, that “[g]iven time, [the defendant] might attempt anything. The trial court was
entitled to prepare for that risk.” Considered in isolation, this statement would permit
shackling in all circumstances, because, of course, anything is possible. The statement
must be read in the context in which it was made, however. In Gamache, the defendant
had made, and arguably started to carry out, plans to disrupt court proceedings and even
253.
escape. The quoted statement responds to his argument that his escape plans should have
been discounted as the product of a delusional mind.135
The record shows there were six trained individuals in the courtroom — three
deputies and three CDCR officers — whose jobs were solely to provide security by
monitoring defendants. The three deputies were within a few feet of defendants, and the
correctional officers were between defendants and the exit. In addition, the bailiff and
Senior Officer Sherman were usually in close proximity to defendants. Defendants did
not object to the presence of so many guards (as long as the correctional officers were in
civilian clothes, a state of affairs with which CDCR did not appear to have a concern),
and Dixon does not now claim the number was unreasonable. (See People v. Ainsworth
(1988) 45 Cal.3d 984, 1003-1004.) There was no showing of “manifest need” for
shackles, let alone shackles in addition to the extra security.
The error was not prejudicial, however. The California Supreme Court has
“consistently held that courtroom shackling, even if error, [is] harmless if there is no
evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the
defendant’s right to testify or participate in his defense. [Citations.]” (People v.
Anderson, supra, 25 Cal.4th at p. 596.) Here, great care was taken to ensure the restraints
would not be visible to the jury, and the record contains no suggestion the efforts in this
regard were unsuccessful or that Dixon’s participation in his defense was impaired.
Clearly, too, the physical restraints did not prevent Dixon from testifying in his
own behalf. He says, however, that the leg restraints resulted in the “conspicuous”
135 The People also note Johnson’s verbal outburst when the verdicts were read.
Again, the fact that anything is possible does not justify the imposition of physical
restraints. Moreover, assuming an outburst by Johnson could somehow be relevant to a
determination whether to restrain Dixon, it had not occurred when the trial court made its
ruling. (See People v. Welch (1999) 20 Cal.4th 701, 739 [we review correctness of trial
court’s ruling at time it was made and not by reference to evidence produced later].)
254.
procedure of his being the only witness to be seated and sworn before jurors entered the
courtroom. As a result, he says, he and the jurors could not help but perceive he was
being treated differently from everyone else, even gang members or parolees like
Jackson.
We disagree. Jurors likely assumed Dixon was in custody, if not as a result of the
Tec-9 incident, then from the nature of the pending charges. This is especially true since
it was revealed, during Deputy Maxwell’s testimony, that Lee and Johnson were in
custody. More importantly, the record shows that Jackson, although sworn in the
presence of the jury, was already seated on the witness stand whenever the jurors entered
the courtroom. Burts, like Dixon, was seated and sworn outside the jury’s presence.
Also like Dixon, jurors were informed that he had been advised of his rights. Rather than
assuming Dixon was being treated differently because he was shackled, it is likely jurors
assumed he (and Burts) were sworn outside their presence because of some reason having
to do with the need to advise them of their rights, a process Jackson did not need to
undergo because he was testifying pursuant to an immunity agreement.136 There is
simply no evidence any juror was aware Dixon was in leg restraints when he was seated
and sworn outside the jury’s presence. (See People v. McWhorter, supra, 47 Cal.4th at
pp. 375-376.)137 Accordingly, and regardless of whether we apply the Chapman or the
Watson standard (see People v. Hernandez (2011) 51 Cal.4th 733, 744-746; People v.
Mar, supra, 28 Cal.4th at p. 1225, fn. 7), under the circumstances “the procedures
136 Jurors subsequently were informed defendants had a constitutional right not to
testify.
137 We will not assume jurors must have been aware of the physical restraints because
the trial court gave an admonition on the subject. (See People v. Miller (2009) 175
Cal.App.4th 1109, 1115.) The admonition initially was given in conjunction with
Maxwell’s testimony, and was equally aimed at the witnesses who were in custody when
they testified.
255.
implemented could not have influenced … the … verdict. ‘[A]ny error was clearly
harmless.’ [Citations.]” (People v. Cox, supra, 53 Cal.3d at pp. 652-653.)
C. Juror Misconduct
Johnson and Dixon each contend the trial court erred by refusing to discharge two
jurors for misconduct when they admitted talking about the case together prior to
deliberations. Dixon joins in Johnson’s argument, and Lee joins in both. The People say
the trial court properly declined to excuse the jurors.
1. Background
At the outset of jury selection, the trial court instructed potential jurors not to
discuss the case or anything occurring in the courtroom with anyone prior to
deliberations, to maintain an open mind, and not to form an opinion until deliberations.
At breaks during trial, the court admonished jurors not to talk to anyone about the case,
and to maintain open minds. On February 6, 2009, however, it was brought to the court’s
attention that Juror No. 1244336 had had a blog since at least August 3, 2008, and that
she had included comments about jury selection, and then the trial itself, in her blogs of
November 17, 20, and 24, 2008; December 5, 8, 11, 15, 16, 21, and 30, 2008; January 15,
23, and 29, 2009, and February 3, 2009.138 On December 16, 2008, the juror posted,
“[T]his is my secret blog. I don’t know how secret it really is though. I want to tell
secret jury things.” At least one of her posts drew a comment from a family member who
“love[d]” the blogger’s “hypothetical question to a case that you can not talk about (let
alone blog about).” One of her posts referred to “everyone” she talked to who found out
she was on the jury.
138 The blog, which was designated court’s exhibits, was brought to the prosecutor’s
attention by a member of the media. The prosecutor brought it to the attention of the
court and defense the next day.
256.
The People sought to have the blogging juror removed. Counsel for Lee asked the
court to question the blogging juror and Juror Nos. 1267086 and 1355968, with whom
she carpooled, followed by an inquiry of the remaining members of the jury and
alternates to investigate whether any had discussed the case in violation of the court’s
admonitions. Counsel for the other defendants joined.
After further discussion, Juror No. 1244336 was brought into the courtroom.
Under questioning by the court, she admitted having a blog and discussing on it the
general court experience, but denied saying anything about this case. Shown a printout of
her blog entries, she apologized. She said she had not been talking about the case, but
that “everybody” knew she was on jury duty.
Asked specifically about the two jurors who carpooled with her, Juror
No. 1244336 said they tried “really hard,” when in the car together, “not to deliberate,”
and she asserted they had “not done that.” There had been times, however, when they
tried to get straight something they heard. The juror pointed to a timeline that was on a
poster and had been shown the jury during opening statements. She related that she could
see it from where she sat, but one of the people with whom she travelled could not, and
so that juror would ask about a particular date, and Juror No. 1244336 would say what
she saw on the timeline.139 On other occasions, as the jurors drove on Highway 58, one
of them would jokingly tell the driver not to get off on Cottonwood. Juror No. 1244336
related that the jurors talked about the experience of being together, but did not express
opinions concerning the case.
The court had Juror No. 1244336 taken to a secretarial area. It then found she had
committed serious and willful misconduct, and good cause to believe she would not be
139 The prosecutor subsequently explained that it had been the prosecution’s intent all
along ultimately to mark the timeline, a double-sized poster used during the course of
opening statements, as an exhibit and move it into evidence.
257.
able to perform her duties, including the obligation to follow the court’s instructions. The
parties then stipulated that she was to be excused.
Juror No. 1267086 was subsequently examined. She denied discussing the facts of
the case with anyone. She commuted with Juror Nos. 1244336 and 1355968, and they
did not deliberate or discuss the case because the court had told them not to. They might
have talked, however, about frustration because of the length of the case. Juror
No. 1267086 saw their talk as “idle chitchat,” not anything that might jeopardize the case.
She could not think of any discussions regarding any court exhibits or timelines. She
personally did not have an Internet site or use the Internet socially, but she knew Juror
No. 1244336 was a photographer and so emailed her a picture of a rainbow. Juror
No. 1244336 said she had used the photograph on her site, but Juror No. 1267086 had not
seen anything or posted anything on the Internet to do with this case.
Asked if she had had any direct contact with any of the jurors regarding anything
about this case, Juror No. 1267086 answered that they had discussed a little bit about
some of the witnesses, along the lines of feeling a bit sympathetic about their
circumstances. The juror assured the court that nothing had affected her ability to be fair
to both sides, however; the way she saw it, they had not heard the whole case. She
thought there were a lot of circumstances that still had to be looked at equally and fairly
both ways. She stated that to come to a judgment at this point would be wrong.
Juror No. 1267086 related that she and Juror No. 1244336 had not discussed the
facts of the case. Juror No. 1267086 did not know if Juror No. 1244336 had had any
communication with anyone else; although they lived in the same town, they did not
socialize. With respect to the picture she sent, Juror No. 1267086 did see it and some
other pictures Juror No. 1244336 took, but that was all. She did not read anything or see
any references about the case. Although she could have looked at the writings, she did
not. Her computer was old and slow and she was in a hurry, so she just scrolled through
258.
the blog and found the picture and logged off. She had not looked at the blog since then.
It would not affect her ability to be fair and impartial.
Juror No. 1355968 was then examined. She did not recall any conversations with
anyone regarding the facts of the case. Asked if she had any type of communication with
Juror No. 1244336 through any Internet format, Juror No. 1355968 said no, that she did
not even know how to use the Internet. She did not know what a blog was. She had not
had any communication about any issue regarding people, places, exhibits, or anything
along those lines, with anyone on the jury or with third parties. All she ever did was to
tell her boss that she did not know when she would be back, and to ask her brother to feed
her animals in case she could not get home one night. If anybody asked her, she just told
them no questions, and they abided by that request.
Asked if she or any of the jurors had talked about any aspect of a witness’s
testimony or a photograph or document like the board that was brought up during
opening statements, Juror No. 1355968 said the only thing mentioned about the timeline
was that they wished it was where they could see it better. She said it was her
understanding it would be in the room when they went into deliberations. Told by the
court that was so if it came into evidence, she assured the court it did not affect her ability
to be fair and impartial. She was more of a note-taker than some of the others, and she
was concerned with chronology. She heard nothing said about emotions or feelings
regarding any witness.
The court had Juror No. 1244336 brought back in and excused her. The parties
subsequently requested additional inquiry of Juror Nos. 1267086 and 1355968. Counsel
for Dixon and Lee argued it was obvious some discussion had taken place, and since
those jurors were not being candid about it, they should be dismissed. Counsel for Lee
further argued that having or not having sympathy for certain witnesses and their plight
was also a violation of jurors’ oaths and the court’s admonitions.
259.
Juror No. 1267086 was returned to the courtroom. She admitted asking the two
jurors with whom she carpooled if they had seen the timeline, because she never had a
chance to look at it and they sat closer to it than she did. That was the extent of the
conversation, except for Juror No. 1267086 saying she guessed they would be able to
look at it during deliberations. She did not recall what the others said in response, “[j]ust
nothing, really.” She did not think there had been any other communication with them
about any other piece of evidence. With regard to sympathy regarding certain witnesses,
the conversation was just that it was sad so many people in the world had to go through
such a hard time to live their lives and to be brought up in hard situations. There were no
discussions regarding a particular witness or defendant or a particular person’s plight and
how it might have touched or impacted that person’s involvement in this case. Juror
No. 1267086 related that for her personally, it did not matter one way or the other. It was
more along the lines of, she could have been born anywhere in the world, and by the
grace of God was born to a good mother and father and ended up where she did. The
plight or station in life of any of the people who were discussed did not cause her to have
sympathy or prejudice regarding the outcome of the case, and did not impact her ability
to judge each defendant and each situation individually and fairly.
Juror No. 1355968 was then brought in. She recalled the issue of the timeline
arising during a conversation about what would be brought into the jury room when they
deliberated. They assumed the timeline would be brought in, so the matter was just
dropped. There was no discussion about the significance of any particular date or time.
The juror believed the subject arose because they had started out with evidence
concerning the first day, then jumped a bit, then returned to the first day. Juror
No. 1355968 recalled passing the Cottonwood off-ramp, and someone — possibly her —
pointing it out. Nothing further was said about it. The juror did not believe anything was
said about sympathy regarding witnesses or anyone involved in the case. She did not talk
about it with anyone. She believed she could still be fair and impartial.
260.
The prosecutor urged the court not to judge Juror No. 1267086’s credibility by
what was said by Juror No. 1244336, whom the prosecutor termed “a complete liar.” He
observed that Juror No. 1267086 appeared to be very serious about what was going on
and the true nature of the undertaking, and the court confirmed that her body language
seemed to convey that. The prosecutor argued that she and Juror No. 1355968 both
assumed — validly — that they would be able to view the timeline during deliberations,
and they did not ask questions of each other about specific dates or times for events. The
prosecutor further argued that any feeling of sympathy was not about any specific
individuals, but, in light of some of the testimony concerning people’s situations, was
merely a reflection of human nature. Moreover, an offhand comment about not being
able to get off on Cottonwood did not show any kind of prejudgment. The prosecutor
concluded that the conversations were “very innocuous stuff” and did not come close to
what Juror No. 1244336 had done, and that the other two jurors were credible and should
not be removed from the case.
Counsel for Johnson argued the jurors should not be talking to each other about
the case at all, and he joined in the arguments of counsel for Dixon and Lee. He asserted
that all three jurors committed clear misconduct, thereby raising a presumption of
prejudice, and he requested that Juror Nos. 1267086 and 1355968 be removed and
alternate jurors substituted. Counsel for Dixon and Lee agreed.
The court found, from the totality of the testimony of Juror Nos. 1267086 and
1355968, including their body language and the manner in which they testified, that there
was no willful failure to comply with the court’s instructions or breach of duty or
misconduct on their part. Further, if there was misconduct, the presumption of prejudice
was rebutted by their testimony. The court found no substantial likelihood of prejudice
on their part, or anything that would undermine the integrity of the trial or result in any
unfairness. The jury was then brought in, and the court asked if any of the other jurors
had had any discussion or communication, by Internet or any other means, among
261.
themselves or with anyone else, about any piece of evidence or witness or the nature of
the case. There were no positive responses. The court then explained why Juror
No. 1244336 was excused, and reiterated the jurors’ oaths to try the case according only
to the evidence presented, and the instructions and admonitions not to discuss the case
before deliberations. The court admonished jurors not to give the excusal any weight or
regard, then an alternate was selected and sworn to take Juror No. 1244336’s place. The
court also asked Juror Nos. 1267086 and 1355968 to drive separately, which they agreed
to do.
The timeline ultimately was admitted into evidence, and the prosecutor used it in
summation. In the course of jury instructions, jurors were cautioned again not to decide
the case based on sympathy or prejudice.
Johnson subsequently moved for a new trial based on juror misconduct. His
motion was denied.
2. Analysis
“If at any time, whether before or after the final submission of the case to the jury,
a juror … upon … good cause shown to the court is found to be unable to perform his or
her duty, … the court may order the juror to be discharged ….” (§ 1089.) A trial court’s
decision whether to retain or discharge a juror is reviewed for abuse of discretion, and
will be upheld unless it falls outside the bounds of reason. (People v. Earp, supra, 20
Cal.4th at p. 892; People v. Marshall (1996) 13 Cal.4th 799, 843.) Its discretion in this
regard is broad (People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19); however,
“‘[b]efore an appellate court will find error in failing to excuse a seated juror, the juror’s
inability to perform a juror’s functions must be shown by the record to be a
“demonstrable reality.” The court will not presume bias, and will uphold the trial court’s
exercise of discretion on whether a seated juror should be discharged for good cause
under section 1089 if supported by substantial evidence. [Citation.]’ [Citations.]”
262.
(People v. Farnam, supra, 28 Cal.4th at p. 141; accord, People v. Martinez (2010) 47
Cal.4th 911, 943.)
“An accused has a constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced [citations]
and every member is ‘“capable and willing to decide the case solely on the evidence
before it”’ [citations].” (In re Hamilton (1999) 20 Cal.4th 273, 293-294; Smith v. Phillips
(1982) 455 U.S. 209, 217; see also Ristaino v. Ross (1976) 424 U.S. 589, 595, fn. 6.) “A
defendant is ‘entitled to be tried by 12, not 11, impartial and unprejudiced jurors.
“Because a defendant charged with a crime has a right to the unanimous verdict of 12
impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror
has been improperly influenced.” [Citations.]’ [Citations.]” (People v. Harris (2008) 43
Cal.4th 1269, 1303.)
“[W]here a verdict is attacked for juror taint, the focus is on whether there is any
overt event or circumstance, ‘open to [corroboration by] sight, hearing, and the other
senses’ [citation], which suggests a likelihood that one or more members of the jury were
influenced by improper bias. [¶] When the overt event is a direct violation of the oaths,
duties, and admonitions imposed on actual or prospective jurors, such as when a juror
conceals bias on voir dire, consciously receives outside information, discusses the case
with nonjurors, or shares improper information with other jurors, the event is called juror
misconduct. [Citations.]” (In re Hamilton, supra, 20 Cal.4th at p. 294, fn. omitted.)
Misconduct can be good cause for discharge of a juror under section 1089 (People v.
Ledesma (2006) 39 Cal.4th 641, 743) even if it is “‘neutral’” in the sense it does not
suggest bias toward either side (People v. Daniels, supra, 52 Cal.3d at pp. 863-864), but
removal is not necessarily the remedy required in every case (see People v. Guzman
(1977) 66 Cal.App.3d 549, 559).
In determining whether discharge is required in a particular case, it must be
remembered that “[m]isconduct by a juror … usually raises a rebuttable ‘presumption’ of
263.
prejudice. [Citations.]” (In re Hamilton, supra, 20 Cal.4th at p. 295; Remmer v. United
States (1954) 347 U.S. 227, 229; People v. Guzman, supra, 66 Cal.App.3d at p. 559.)
“Still, whether an individual verdict must be overturned for jury
misconduct or irregularity ‘“‘is resolved by reference to the substantial
likelihood test, an objective standard.’”’ [Citations.] Any presumption of
prejudice is rebutted, and the verdict will not be disturbed, if the entire
record in the particular case, including the nature of the misconduct or other
event, and the surrounding circumstances, indicates there is no reasonable
probability of prejudice, i.e., no substantial likelihood that one or more
jurors were actually biased against the defendant. [Citations.]
“The standard is a pragmatic one, mindful of the ‘day-to-day
realities of courtroom life’ [citation] and of society’s strong competing
interest in the stability of criminal verdicts [citations]. It is ‘virtually
impossible to shield jurors from every contact or influence that might
theoretically affect their vote.’ [Citation.] Moreover, the jury is a
‘fundamentally human’ institution; the unavoidable fact that jurors bring
diverse backgrounds, philosophies, and personalities into the jury room is
both the strength and the weakness of the institution. [Citation.] ‘[T]he
criminal justice system must not be rendered impotent in quest of an ever-
elusive perfection…. [Jurors] are imbued with human frailties as well as
virtues. If the system is to function at all, we must tolerate a certain amount
of imperfection short of actual bias.’ [Citation.]” (In re Hamilton, supra,20 Cal.4th at p. 296; see also People v. Danks (2004) 32 Cal.4th 269, 302-
303.)140
140 Citing Remmer v. United States, supra, 347 U.S. at page 229, defendants contend
California’s “‘substantial likelihood’” test conflicts with United States Supreme Court
authority that they say requires a showing of no actual prejudice. Remmer involved
attempted jury tampering that did not come to light until after the jury returned its verdict.
In his motion for a new trial, the defendant requested an evidentiary hearing on the
matter, but the trial court denied the new trial motion without holding a hearing. (Id. at
pp. 228-229.) In remanding the matter for a hearing, the United States Supreme Court
stated in part: “The presumption [of prejudice] is not conclusive, but the burden rests
heavily upon the Government to establish, after notice to and hearing of the defendant,
that such contact with the juror was harmless to the defendant. [Citations.]” (Id. at
p. 229.) The California Supreme Court has consistently adhered to the “substantial
likelihood” standard, often stating it in conjunction with Remmer (see, e.g., People v.
Foster, supra, 50 Cal.4th at p. 1342; People v. Lewis (2009) 46 Cal.4th 1255, 1309), and
has rejected the notion that standard is inconsistent with federal law (People v. Loker
264.
“‘Whether prejudice arose from juror misconduct … is a mixed question of law
and fact subject to an appellate court’s independent determination.’ [Citation.] However,
‘[w]e accept the trial court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence.’ [Citation.]” (People v. Danks,
supra, 32 Cal.4th at pp. 303-304.) With respect to credibility determinations, the trial
court’s assessment of jurors’ states of mind will not necessarily be dispositive, such as
when there is inherent prejudice (see Holbrook v. Flynn (1986) 475 U.S. 560, 570
[courtroom security arrangement]) or where bias is “clearly apparent” from the record
(People v. San Nicolas (2004) 34 Cal.4th 614, 646). While a juror’s declaration of
impartiality may not be conclusive (Irvin v. Dowd (1961) 366 U.S. 717, 728; People v.
Williams (1989) 48 Cal.3d 1112, 1129), neither is it irrelevant: “‘[One] may not know or
altogether understand the imponderables which cause one to think what he thinks, but
surely one who is trying as an honest man to live up to the sanctity of his oath is well
qualified to say whether he has an unbiased mind in a certain matter.’ [Citations.]”
(Smith v. Phillips, supra, 455 U.S. at p. 217, fn. 7.)
At the time of trial, section 1122 provided, in pertinent part: “(a) After the jury
has been sworn and before the people’s opening address, the court shall instruct the jury
generally concerning its basic functions, duties, and conduct. The instructions shall
include, among other matters, admonitions that the jurors shall not converse among
themselves, or with anyone else, on any subject connected with the trial; …. [¶] (b) The
jury shall also, at each adjournment of the court before the submission of the cause to the
jury, … be admonished by the court that it is their duty not to converse among
themselves, or with anyone else, on any subject connected with the trial, or to form or
express any opinion thereon until the cause is finally submitted to them.”
(2008) 44 Cal.4th 691, 747). Accordingly, we reject defendants’ claim. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
265.
As previously described, defendants’ jury was so instructed. Violation of the
admonitions contained in section 1122 is misconduct; when the violation is in the form of
discussing the case with a nonjuror, it is serious misconduct. (People v. Wilson (2008)
44 Cal.4th 758, 838, 840; In re Hitchings (1993) 6 Cal.4th 97, 117-118.) When,
however, the “misconduct is ‘“‘of such a trifling nature that it could not in the nature of
things have been prejudicial to the moving party and where it appears that the fairness of
the trial has been in no way affected by such impropriety, the verdict will not be
disturbed.’”’ [Citation.]” (People v. Stewart (2004) 33 Cal.4th 425, 510; see also People
v. Wilson, supra, 44 Cal.4th at pp. 839-840.)
In the present case, the trial court found Juror Nos. 1267086 and 1355968 to be
credible, and to not have willfully failed to comply with the court’s instructions.
Substantial evidence supports these determinations. Although there were technical
violations of section 1122 and the court’s admonitions, the violations were not pervasive,
in that they occurred only occasionally insofar as the record shows with respect to these
jurors, as opposed to Juror No. 1244336. They also were not substantive, as they did not
involve deliberative-type discussions about the merits of the case. (Contrast People v.
Cissna (2010) 182 Cal.App.4th 1105, 1118.) For example, the timeline ultimately was
admitted into evidence, and, according to the testimony implicitly credited by the court,
there were no discussions about particular dates or times. Moreover, insofar as we can
ascertain from the printed copy of the blog that is contained in the record, it was indeed
possible for Juror No. 1267086 to view the photograph she emailed to Juror No. 1244336
without reading the latter’s blog entries.
Defendants argue that, through their sympathy for what could only have been
prosecution witnesses, the jurors exhibited actual bias, and so the trial court’s findings of
fact established actual prejudice. We disagree. Jurors are not precluded from thinking
about a case prior to deliberations (People v. Wilson, supra, 44 Cal.4th at p. 840);
moreover, they are not instructed not to feel sympathy for someone involved, but rather
266.
not to base their decision on sympathy or prejudice. What matters is whether the
individual can separate feelings and emotions from his or her duties as a juror, and
evaluate the evidence fairly and decide the case solely on the evidence presented at trial.
Here, the trial court’s inquiry was more than adequate (compare People v.
Farnam, supra, 28 Cal.4th at pp. 139-142 with People v. McNeal (1979) 90 Cal.App.3d
830, 835-838), and that court was in the best position to observe the jurors’ demeanors
when it questioned them about their ability to perform their duties. In addition, it
emphasized and reiterated pertinent admonitions, which, under the circumstances,
dispelled the presumption of prejudice. (See People v. Tafoya (2007) 42 Cal.4th 147,
192-193.)
The record establishes that the conversations and comments engaged in by Juror
Nos. 1267086 and 1355968 “‘[are] not, judged objectively, “inherently and substantially
likely to have influenced the juror[s].” [Citation.] Nor [do they] objectively demonstrate
a substantial likelihood, or even a reasonable possibility, of actual bias. [Citations.]’
[Citation.]” (People v. Lewis, supra, 46 Cal.4th at p. 1309, fn. omitted.) Accordingly,
any presumption of prejudice stands rebutted, and the trial court did not abuse its
discretion in refusing to discharge either or both jurors.141
D. Jury Instructions
The instructions given the jury in this case were lengthy and, as to some matters,
quite complex. Defendants now raise claims of error with respect to several of them.
141 “Since we find no violation of section 1089, a statute that [the California Supreme
Court has] previously held is consistent with state and federal constitutional
proscriptions, our conclusion also necessarily disposes of defendant[s’] state and federal
constitutional claims. [Citation.]” (People v. Martinez, supra, 47 Cal.4th at p. 943,
fn. 6.)
267.
1. Unjoined Perpetrators
Dixon says the trial court erred by giving CALCRIM No. 373 (Other Perpetrator),
or at least excluding Agustin and Jackson from its purview. He says the instruction
discouraged jurors from discussing the effect of potential future prosecution (and fear
thereof) on those witnesses’ credibility, because some speculation is inherent in any full
consideration of the impact of potential prosecution of an accomplice. The error, he says,
deprived him of his state and federal constitutional rights to due process and a
fundamentally fair trial, as well as his right to confront witnesses and to present a
meaningful defense. Johnson and Lee join. The People say the claim of error was
forfeited by defendants’ failure to object to the instruction, but in any event, when
considered in context with additional accomplice instructions, CALCRIM No. 373 was
proper.
a. Background
Sara Agustin and Dupree Jackson testified under agreements granting them use
immunity, with respect to this case, for everything except perjury. Agustin testified to an
understanding that the district attorney’s office had conferred immunity from the use of
any statements made while testifying in this case and any future prosecution, other than
for perjury. She further testified she had not been granted immunity from federal
prosecution or deportation. Jackson testified to an understanding that he could not be
prosecuted for any type of criminal activity he might admit, while testifying, to having
done in the past. He further testified he had not been given any other immunity
agreements, including with respect to potential federal prosecution. The written
immunity agreements were admitted into evidence.
During the jury instruction conference, the trial court decided it would give
CALCRIM No. 373, but strike the last bracketed sentence. When asked, no party voiced
any objection.
268.
Jurors subsequently were instructed that, in determining the credibility of a
witness, they could consider anything that reasonably tended to prove or disprove the
truth or accuracy of the testimony, including, inter alia, whether the witness’s testimony
was influenced by a personal interest in how the case was decided, and whether the
witness was promised immunity or leniency in exchange for his or her testimony. Jurors
were also instructed to determine whether Agustin was an accomplice to the crime of
conspiracy to participate in a criminal street gang, as charged in count nine, and
participating in a street gang, as charged in count eleven. If so, jurors were told they
could not convict defendants of those charges based on her uncorroborated testimony
alone. Jurors were further told that if the crime of conspiracy to commit the murder of
David “Fumes” Taylor was committed, then Jackson was an accomplice to that crime,
and defendants could not be convicted of that offense based on Jackson’s uncorroborated
testimony alone. Jurors were told that the testimony of one accomplice could not
corroborate the testimony of another accomplice, and to view with caution any statement
or testimony of an accomplice that tended to incriminate defendants.
Pursuant to CALCRIM No. 373, jurors were told: “The evidence shows that
another person or other persons may have been involved in the commission of the crimes
charged against the defendants. There may be many reasons why someone who appears
to have been involved might not be a co-defendant in this particular trial. You must not
speculate about whether that other person has or those other persons have been or will be
prosecuted. Your duty is to decide whether the defendants here on trial have committed
the crimes charged.” The court omitted the bracketed optional sentence, which would
have provided: “[This instruction does not apply to the testimony of .]” It did so despite the Bench Note advising that, if other
alleged participants in the crime are testifying, the instruction should not be given or the
bracketed portion should be given, exempting the testimony of those witnesses. (Judicial
269.
Council of Cal., Crim. Jury Instns. (2007-2008) Bench Notes to CALCRIM No. 373,
p. 153.)
b. Analysis
The People are correct that defendants forfeited their claim when they failed to
object to, or request modification of, CALCRIM No. 373 at trial. (People v. Moore,
supra, 51 Cal.4th at p. 1134; People v. Sully, supra, 53 Cal.3d at p. 1218.)142 In any
event, defendants’ claim fails on the merits.
“‘“[T]he correctness of jury instructions is to be determined from the entire charge
of the court, not from a consideration of parts of an instruction or from a particular
instruction.” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 987.)
Accordingly, “[i]n assessing a claim of instructional error or ambiguity, we consider the
instructions as a whole to determine whether there is a reasonable likelihood the jury was
misled. [Citations.]” (People v. Tate (2010) 49 Cal.4th 635, 696; see Estelle v. McGuire,
supra, 502 U.S. at p. 72.)143
142 For the most part, the cases we and the parties cite address CALCRIM No. 373’s
counterpart, CALJIC No. 2.11.5. That instruction provides: “There has been evidence in
this case indicating that a person other than a defendant was or may have been involved
in the crime for which that defendant is on trial. [¶] There may be many reasons why
that person is not here on trial. Therefore, do not speculate or guess as to why the other
person is not being prosecuted in this trial or whether [he] [she] has been or will be
prosecuted. Your [sole] duty is to decide whether the People have proved the guilt of
[each] [the] defendant on trial.” (Italics added.) We reject defendants’ assertion that
CALCRIM No. 373 is significantly (and improperly) more restrictive than CALJIC
No. 2.11.5 because the latter includes the italicized language. Accordingly, cases dealing
with CALJIC No. 2.11.5 are on point.
143 Some cases state that “‘[i]n determining whether an instruction interferes with the
jury’s consideration of evidence presented at trial, we must determine “what a reasonable
juror could have understood the charge as meaning.” [Citation.]’” (People v. Cox,
supra, 53 Cal.3d at p. 667, italics added; see also, e.g., People v. Garrison (1989) 47
Cal.3d 746, 780; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.) Garrison, which
was cited by People v. Cox, supra, 53 Cal.3d at p. 667 (which in turn was cited at p. 549
of Fonseca), cited California v. Brown, supra, 479 U.S. 538, as authority for the
270.
The California Supreme Court has consistently held that an unmodified version of
CALJIC No. 2.11.5 (and, by parity of reasoning, CALCRIM No. 373) should not be
given when, as here, a nonprosecuted participant testifies, because the jury is entitled to
consider the lack of prosecution, and incentive the witness had to lie, in assessing the
witness’s credibility. (E.g., People v. Williams (1997) 16 Cal.4th 153, 226-227; People v.
Hardy (1992) 2 Cal.4th 86, 189-190; People v. Cox, supra, 53 Cal.3d at p. 667 & fn. 13;
People v. Carrera (1989) 49 Cal.3d 291, 312 & fn. 10; People v. Sheldon, supra, 48
Cal.3d at p. 946.) That court has been less consistent as to whether, when given together
with instructions that assist jurors in assessing witness credibility, such as were given in
the present case, the giving of the unmodified instruction does not constitute error (e.g.,
People v. Moore, supra, 51 Cal.4th at pp. 1133-1134; People v. Williams, supra, 49
Cal.4th at pp. 457-458; People v. Crew (2003) 31 Cal.4th 822, 845; People v. Brown
(2003) 31 Cal.4th 518, 560-561; People v. Lawley, supra, 27 Cal.4th at pp. 162-163;
People v. Price, supra, 1 Cal.4th at p. 446), or constitutes error that was harmless
whether assessed under Watson or Chapman (e.g., People v. Cornwell, supra, 37 Cal.4th
at p. 88; People v. Williams, supra, 16 Cal.4th at p. 227; People v. Hardy, supra, 2
Cal.4th at pp. 190-191; People v. Sully, supra, 53 Cal.3d at pp. 1218-1219; People v.
Carrera, supra, 49 Cal.3d at p. 313; People v. Garrison, supra, 47 Cal.3d at p. 780).
standard. In Boyde v. California (1990) 494 U.S. 370, however, Brown was one of the
cases cited by the United States Supreme Court as providing differing and hence a “less
than clear” “legal standard for reviewing jury instructions claimed to restrict
impermissibly a jury’s consideration of relevant evidence ….” (Boyde, at pp. 378, 379.)
Finding it important “to settle upon a single formulation” to be employed in deciding this
kind of question, the high court determined that “the proper inquiry … is whether there is
a reasonable likelihood that the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evidence.” (Id. at pp. 379, 380.)
Although later United States Supreme Court cases appeared to again endorse the
“reasonable juror” standard, Boyde’s “reasonable likelihood” standard was reaffirmed in
Estelle v. McGuire, supra, 502 U.S. at pages 72-73, footnote 4.
271.
In the present case, the trial court should have expressly excluded Agustin and
Jackson from CALCRIM No. 373’s ambit. In light of the other instructions given on
witness credibility and accomplice testimony, however, we find no reasonable likelihood
jurors were misled in terms of their consideration of the testimony of those witnesses.
The instructions, considered as a whole (which the jury was admonished to do), correctly
stated the law.144
2. Accomplice Liability
Dixon contends the accomplice liability instructions were prejudicially erroneous
because (1) they gave jurors no guidance on how to determine the degree of murder for a
nonkiller, and (2) they inadvertently included overly broad language on the natural-and-
probable-consequences doctrine. Johnson and Lee join. The People say defendants
forfeited any claim of error by failing to object to the instructions, but in any event, the
instructions as a whole correctly stated the law and if error occurred, it was harmless.
a. Background
The evidence adduced at trial is set out in the statement of facts, ante. It suggested
that, assuming defendants were the perpetrators of the charged offenses, one or more
acted as an aider and abettor rather than the actual shooter.
During the jury instruction conference, no one objected to, or requested any
modification of, CALCRIM Nos. 400 (Aiding and Abetting: General Principles) or 401
(Aiding and Abetting: Intended Crimes). With respect to CALCRIM Nos. 402 (Natural
and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)) and
403 (Natural and Probable Consequences (Only Non-Target Offense Charged)), counsel
for Lee argued defendants were charged with everything possible and Lee had asked for
instructions on lesser offenses, so nothing else was left. As a result, the People withdrew
their request for those instructions.
144 Were we to find error, we would conclude it was harmless under any standard.
272.
In addition to aiding and abetting, the People sought to argue conspiracy as a
theory of liability for the nonconspiracy charges.145 Over Lee’s objection to combining
CALCRIM and CALJIC instructions, the People withdrew their request for CALCRIM
No. 417 (Liability for Coconspirators’ Acts) in favor of a modified version of CALJIC
No. 6.11 (Conspiracy — Joint Responsibility).
The jury subsequently was instructed that defendants were being prosecuted for
first degree murder under two theories: one, that the murders were willful, deliberate,
and premeditated; and two, that the murders were committed by lying in wait. Both were
explained to the jury, and premeditation and deliberation were defined. Jurors were also
instructed that the duration of lying in wait had to be substantial enough to show a state
of mind equivalent to deliberation or premeditation. Jurors were also instructed on
transferred intent, to wit, if the defendant intended to kill one person but by mistake or
accident killed another person, the crime (if any) was the same for the unintended killing
as for the intended killing. With respect to the multiple-murder special circumstance,
jurors were instructed that if they found a defendant was guilty of first degree murder but
was not the actual killer, they had to find he acted with the intent to kill in order to find
the special circumstance true.
On the subject of aiding and abetting, the court instructed, pursuant to CALCRIM
No. 400:
“A person may be guilty of a crime in two ways:
“One, he or she may have directly committed the crime. I will call
that person the perpetrator.
“Two, he or she may have aided and abetted a perpetrator who
directly committed the crime.
145 The prosecutor noted that the natural-and-probable-consequences doctrine
provided a third theory of liability, but clarified the prosecution was not asking for it in
this case.
273.
“A person is equally guilty of the crime whether he or she committed
it personally or aided and abetted the perpetrator who committed it. Under
some specific circumstances if the evidence establishes aiding and abetting
of one crime, a person may also be found guilty of other crimes that
occurred during the commission of the first crime.” (Italics added.)
Pursuant to CALCRIM No. 401, jurors were told, in pertinent part:
“To prove that the defendant is guilty of a crime based on aiding and
abetting that crime, the People must prove that:
“One, the perpetrator committed the crime;
“Two, the defendant knew that the perpetrator intended to commit
the crime;
“Three, before or during the commission of the crime the defendant
intended to aid and abet the perpetrator in committing the crime;
“And, fourth, the defendant’s words or conduct did, in fact, aid and
abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically intends to and
does, in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission of that crime.”
Jurors were also instructed that conspiracy was a crime and was charged in count
nine, and that when the prosecution had not specifically charged conspiracy but had
introduced evidence of conspiracy to prove liability for other offenses or to introduce
hearsay statements of coconspirators, the evidence could be considered for that purpose.
Jurors were told that “[a] conspiracy is an agreement between two or more persons with
the specific intent to agree to commit the crime of murder and/or shooting into an
occupied vehicle, and with the further specific intent to commit those crimes ….” As
relevant to defendants’ claim of error on appeal, the court further instructed:
“Whether conspiracy is charged or uncharged, each member of a
criminal conspiracy is liable for each act and bound by each declaration of
every other member of the conspiracy if that act or declaration is in
furtherance of the object of the conspiracy.
274.
“The act of one conspirator pursuant to or in furtherance of the
common design of the conspiracy is the act of all conspirators.
“A member of a conspiracy is not only guilty of the particular crime
that to his or her knowledge his or her confederates agreed to and did
commit, but is also liable for the natural and probable consequences of any
crime or act of a co-conspirator to further the object of the conspiracy even
though that crime or act was not intended as a part of the agreed-upon
objective and even though he or she was not present at the time of the
commission of that crime or act.
“You must determine whether the defendant is guilty as a member of
a conspiracy to commit the originally agreed-upon crime or crimes and, if
so, whether the crime alleged in all counts, except for Counts 6 and 10
[both charging Dixon alone with being an ex-felon in possession of a
firearm], was perpetrated by co-conspirators in furtherance of that
conspiracy and was a natural and probable consequence of the agreed-upon
criminal objective of that conspiracy.
“In determining whether a consequence is natural and probable, you
must apply an objective test based not on what the defendant actually
intended, but on what a person of reasonable and ordinary prudence would
have expected would be likely to occur. The issue is to be decided in light
of all of the circumstances surrounding the incident.
“A natural consequence is one which is within the normal range of
outcomes that may be reasonably expected to occur if nothing unusual has
intervened.
“Probable means likely to happen.”
The jury retired to deliberate on the afternoon of March 17, 2009. On the morning
of March 19, 2009, jurors sent out a note, with the time marked as 10:53 a.m., requesting
“reading of 1st and 2nd degree murder & interpretation of the law.” Over counsel for
Lee’s objection to doing anything other than directing the jury to CALCRIM Nos. 520
(First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187)) and 521
(First Degree Murder (Pen. Code, § 189)), the court explained to the jury that it could not
comment on the evidence, then reread those two instructions and invited jurors to write
275.
an additional note if they desired further assistance. At 3:56 that afternoon, the jury sent
out a note stating it had reached a verdict.
b. Analysis
Defendants did not object to, or request modification or clarification of, the
instructions they now challenge. Generally, “[a] party may not complain on appeal that
an instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying language.
[Citation.]” (People v. Lang (1989) 49 Cal.3d 991, 1024.) At least two courts have held
that a challenge to the “equally guilty” language of CALCRIM No. 400 is forfeited by
failure to request clarifying language. (People v. Lopez (2011) 198 Cal.App.4th 1106,
1118-1119; People v. Samaniego, supra, 172 Cal.App.4th at p. 1163.) We find it
appropriate to discuss defendants’ claims on the merits, however, as defendants say the
instructions are not correct in law and so implicate various constitutional rights. (See
People v. Smithey, supra, 20 Cal.4th at pp. 976-977, fn. 7; People v. Flood (1998) 18
Cal.4th 470, 482, fn. 7.)
We turn first to the “equally guilty” language of CALCRIM No. 400. A direct
perpetrator and an aider and abettor are equally guilty of a crime in the sense that an
aider and abettor does not escape treatment as a principal merely because he or she is not
the actual perpetrator. Thus, section 31 provides in part: “All persons concerned in the
commission of a crime, … whether they directly commit the act constituting the offense,
or aid and abet in its commission, or, not being present, have advised and encouraged its
commission, … are principals in any crime so committed.”
The problem is, the “equally guilty” language of the instruction can be read as
telling jurors that the direct perpetrator and aider and abettor must be found guilty, if at
all, of the same crime(s) and degree(s) thereof. So, for example, if defendants’ jury
found Johnson guilty, as the shooter, of first degree murder in the killing of Vanessa
Alcala, the jury would have to find Dixon and Lee also guilty of first degree murder once
276.
jurors determined they were involved. This is not the law. The California Supreme
Court has held that, depending on the circumstances, an aider and abettor can be
convicted of a crime greater than the offense for which the actual perpetrator is liable.
(People v. McCoy (2001) 25 Cal.4th 1111, 1118-1119, 1122.) Several appellate courts
have held that under the same reasoning, an aider and abettor can be convicted of a crime
lesser than the offense for which the actual perpetrator is liable. (People v. Lopez, supra,
198 Cal.App.4th at p. 1118; People v. Nero (2010) 181 Cal.App.4th 504, 513-518;
People v. Samaniego, supra, 172 Cal.App.4th at pp. 1163-1164.) As a result, CALCRIM
No. 400, as given in defendants’ case, was ambiguous, and potentially misleading, on this
point.146
Nevertheless, we find no prejudice from the error. As stated in People v.
Samaniego, supra, 172 Cal.App.4th at page 1165, “An instruction that omits or
misdescribes an element of a charged offense violates the right to jury trial guaranteed by
our federal Constitution, and the effect of this violation is measured against the harmless
error test of Chapman[, supra,] 386 U.S. 18, 24. [Citation.] Under that test, an appellate
court may find the error harmless only if it determines beyond a reasonable doubt that the
jury verdict would have been the same absent the error. [Citation.] CALCRIM No. 400
misdescribes the prosecution’s burden in proving the aider and abettor’s guilt of first
degree murder by eliminating its need to prove the aider and abettor’s (1) intent,
(2) willfulness, (3) premeditation and (4) deliberation, the mental states for murder.”
The Samaniego court found the error harmless beyond a reasonable doubt because
the jury necessarily resolved the issues against the defendant under other instructions.
(People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) Here, jurors necessarily
found defendants acted willfully with intent to kill; they were instructed, pursuant to
146 The instruction has since been modified to remove the “equally guilty” language.
(Judicial Council of Cal., Crim. Jury Instns. (2011) p. 167.)
277.
CALCRIM No. 521, that a defendant acted willfully if he intended to kill; and, pursuant
to CALCRIM No. 702, that, in order to find a multiple-murder special circumstance as to
a nonkiller, they had to find the defendant acted with the intent to kill. Because jurors
found all multiple-murder special circumstances true as to all defendants, jurors
necessarily determined each defendant had the specific intent to kill. (See Samaniego, at
p. 1165.)
Jurors also necessarily found defendants acted deliberately and with
premeditation. CALCRIM No. 401 required jurors to find the perpetrator committed the
crime, the defendant knew the perpetrator intended to commit the crime, the defendant
intended to aid and abet the perpetrator in committing the crime either before or during
the commission of the crime, and the defendant’s words or conduct did in fact aid and
abet the perpetrator’s commission of the crime. The instruction further explained that
“[s]omeone aids and abets a crime if he or she knows of the perpetrator’s unlawful
purpose and he or she specifically intends to and does, in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.” We agree with the
court in People v. Samaniego, supra, 172 Cal.App.4th at page 1166, which said: “It
would be virtually impossible for a person to know of another’s intent to murder and
decide to aid in accomplishing the crime without at least a brief period of deliberation
and premeditation, which is all that is required. [Citation.]”
That the error was found prejudicial in People v. Nero, supra, 181 Cal.App.4th at
pages 518-520, does not assist defendants. In that case, the jury expressly asked if an
aider and abettor could be found guilty of a lesser offense. Although the correct answer
was “yes,” the trial court twice reread CALJIC No. 3.00, including the statement, “‘Each
principal, regardless of the extent or manner of the participation, is equally guilty.’”
(Nero, at p. 512, italics omitted.) By contrast, CALCRIM No. 400, as given in the
present case, uses more ambiguous language and, in any event, jurors expressed no
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confusion on this point. (See People v. Lopez, supra, 198 Cal.App.4th at p. 1120,
fn. 6.)147
Defendants next complain the instructions failed to tell jurors the nonkiller must
personally premeditate or the killer’s premeditated murder must be natural and
foreseeable to the nonkiller.148
The People did not proceed on a natural-and-probable-consequences theory of
liability insofar as aiding and abetting was concerned. “To be guilty of a crime as an
aider and abettor, a person must ‘aid[] the [direct] perpetrator by acts or encourage[] him
[or her] by words or gestures.’ [Citations.] In addition, except under the natural-and-
probable-consequences doctrine [citations], … the person must give such aid or
encouragement ‘with knowledge of the criminal purpose of the [direct] perpetrator and
with an intent or purpose either of committing, or of encouraging or facilitating
commission of,’ the crime in question. [Citations.] When the crime at issue requires a
specific intent, in order to be guilty as an aider and abettor the person ‘must share the
specific intent of the [direct] perpetrator,’[149] that is to say, the person must ‘know[] the
full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or
147 The question asked by the jury about first and second degree murder is too general
for us to assume jurors were confused by anything related to aider-and-abettor liability.
This is especially true since, insofar as the record shows, the rereading of CALCRIM
Nos. 520 and 521 remedied whatever confusion or problem existed. Neither instruction
has anything to do with aiding and abetting, and the jury did not ask for further, or more
specific, clarification or assistance.
148 In People v. Favor (2012) 54 Cal.4th 868, 871-880, the California Supreme Court
rejected a virtually identical argument with respect to attempted premeditated murder.
Favor is not necessarily dispositive of defendants’ claim because, as the high court
recognized, there are different degrees of murder, whereas attempted murder is not
divided into degrees, and attempted premeditated murder and attempted unpremeditated
murder are not separate offenses. (Id. at pp. 876-877.)
149 The direct (actual) perpetrator must harbor whatever mental state is required for
each crime charged. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)
279.
encouragement with the intent or purpose of facilitating the [direct] perpetrator’s
commission of the crime.’ [Citation.]” (People v. Lee (2003) 31 Cal.4th 613, 623-624;
see People v. Beeman (1984) 35 Cal.3d 547, 560 (Beeman).) In short, “proof of aider and
abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus
reus — a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea
— knowledge of the direct perpetrator’s unlawful intent and an intent to assist in
achieving those unlawful ends, and (c) the aider and abettor’s actus reus — conduct by
the aider and abettor that in fact assists the achievement of the crime. [Citation.]”
(People v. Perez (2005) 35 Cal.4th 1219, 1225.)
We conclude CALCRIM No. 401, especially when considered in conjunction with
CALCRIM No. 521, adequately conveyed the premeditation requirement.
Cases addressing application of the doctrine vis-à-vis aiding and abetting are
applicable even though the natural-and-probable-consequences doctrine came into play
with respect to the conspiracy theory of liability.
When application of the natural-and-probable-consequences doctrine is triggered
in a conspiracy case, the trier of fact must find, in addition to the elements of the
conspiracy, that the defendant’s coconspirator committed an offense other than the
offense that was the object of the conspiracy, and the offense committed by the
coconspirator was a natural and probable consequence of the target offense. (See People
v. Prettyman (1996) 14 Cal.4th 248, 262.) “The determination whether a particular
criminal act was a natural and probable consequence of another criminal act … requires
application of an objective rather than subjective test. [Citations.] This does not mean
that the issue is to be considered in the abstract as a question of law. [Citation.] Rather,
the issue is a factual question to be resolved by the jury in light of all of the
circumstances surrounding the incident. [Citations.] Consequently, the issue does not
turn on the defendant’s subjective state of mind, but depends upon whether, under all of
the circumstances presented, a reasonable person in the defendant’s position would have
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or should have known that the charged offense was a reasonably foreseeable consequence
of the act [that was the object of the conspiracy]. [Citations.]” (People v. Nguyen (1993)
21 Cal.App.4th 518, 531.) The crime ultimately committed need not have been
specifically planned or agreed upon, nor need it have been substantially certain to result
from commission of the planned act. (Id. at p. 530.) The defendant need not have
actually foreseen the additional crime; the question is whether, judged objectively, the
additional crime was reasonably foreseeable. (People v. Mendoza, supra, 18 Cal.4th at
p. 1133.)
As previously noted, defendants’ jury was told that “[a] conspiracy is an
agreement between two or more persons with the specific intent to agree to commit the
crime of murder and/or shooting into an occupied vehicle, and with the further specific
intents to commit those crimes ….” “[A] jury’s finding of the dual specific intents
required for conviction of conspiracy to murder necessarily establishes that the target
offense of murder was premeditated and deliberated ….” (People v. Cortez (1998) 18
Cal.4th 1223, 1238.) We find it difficult to see how a murder committed as a result of a
conspiracy to shoot into an occupied vehicle could be anything but premeditated and
foreseeable. In any event, the conspiracy instructions, coupled with CALCRIM No. 521,
were adequate to ensure jurors found the nonkiller(s) personally premeditated and/or that
the perpetrator’s commission of premeditated murder was natural and foreseeable to the
nonkiller(s).
Finally, defendants say the trial court erred by including the final, optional
sentence of CALCRIM No. 400, to wit: “Under some specific circumstances, if the
evidence establishes aiding and abetting of one crime, a person may also be found guilty
of other crimes that occurred during the commission of the first crime.” They say this
language failed to identify and define target and nontarget crimes, and so risked a finding
of guilt based on intent to aid and abet unspecified conduct.
281.
In People v. Prettyman, supra, 14 Cal.4th 248, the trial court instructed the jury
that one who aids and abets is not only guilty of the crime aided and abetted, but is also
liable for the natural and probable consequences of the commission of such crime. The
court directed the jury to determine whether the defendant was guilty of the crime
originally contemplated, and, if so, whether any other crime charged was a natural and
probable consequence of such originally contemplated crime. (Id. at pp. 257-258.) The
California Supreme Court found that “once the trial court … chose to instruct the jury on
the ‘natural and probable consequences’ rule, it had a duty to issue instructions
identifying and describing each potential target offense supported by the evidence. By
failing to do so, the trial court erred.” (Id. at p. 270.) Because “a conviction may not be
based on the jury’s generalized belief that the defendant intended to assist and/or
encourage unspecified ‘nefarious’ conduct,” “the trial court should identify and describe
the target or predicate crime that the defendant may have aided and abetted.” (Id. at
p. 268, fns. omitted.)
“If the court fails to identify and define these target offenses, we must then
determine whether there is a ‘“reasonable likelihood” that the jury misapplied the trial
court’s instructions on the “natural and probable consequences” doctrine ….’ [Citation.]”
(People v. Prieto, supra, 30 Cal.4th at p. 252; accord, People v. Prettyman, supra, 14
Cal.4th at p. 272.) No such reasonable likelihood exists here. In the first place, the trial
court never mentioned the natural-and-probable-consequences doctrine in conjunction
with aiding and abetting liability, never identified the specific circumstances under which
a defendant might be found guilty of other crimes, and never directed the jury to make
any sort of findings on the issue. In the second place, when it explained aiding and
abetting and conspiracy theories of liability to the jury, the prosecutor did not even
discuss, let alone rely on, the natural-and-probable-consequences doctrine in the context
of aiding and abetting. (Compare People v. Lucas (1997) 55 Cal.App.4th 721, 731-732.)
Under the circumstances, the challenged language neither introduced the concept of
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natural and probable consequences nor raised a risk jurors might base a finding of guilt
on intent to aid and abet some unspecified “nefarious” conduct. “Where, as here, the
court gives a legally correct, but irrelevant, instruction, the error ‘is usually harmless,
having little or no effect “other than to add to the bulk of the charge.”’ [Citation.]”
(People v. Lee (1990) 219 Cal.App.3d 829, 841.)
3. In-Custody Informant
Lee says the trial court erred by modifying CALCRIM No. 336 (In-Custody
Informant). He says the modification effectively negated the required caution and close
scrutiny the jury was to give all of Dupree Jackson’s testimony, thereby denying Lee his
right to a fair trial. Johnson and Dixon join. The People say the court properly tailored
the instruction.
a. Background
Jackson’s testimony is set out in the statement of facts, ante. He was in and out of
custody during the timeframe in which the charged offenses occurred and at the time he
obtained some of the information he gave to law enforcement and about which he
testified. However, he and Dixon were both in custody at the time Dixon, according to
Jackson, made statements about some of the offenses.
During the jury instruction conference, the prosecutor drafted a modification of
CALCRIM No. 336 to specify to which statements the instruction applied. She explained
that she did so because Jackson was a percipient witness as well as a jailhouse informant.
Counsel for Johnson expressed concern that the modification would lead to juror
confusion about whether benefits Jackson was receiving or would receive could be
considered. The court found the People’s version of the instruction to be appropriately
worded, and ruled it would be given. Accordingly, it subsequently instructed the jury
(with the People’s modification italicized):
“The testimony of an in-custody informant should be viewed with
caution and close scrutiny. In evaluating such testimony you should
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consider the extent to which it may have been influenced by the receipt of
or expectation of any benefits from the party calling that witness. This does
not mean that you may arbitrarily disregard such testimony, but you should
give it the weight to which you find it to be entitled in light of all of the
evidence in the case.
“An in-custody informant is someone other than a co-defendant or
percipient witness or accomplice or co-conspirator whose testimony is
based on statements the defendant allegedly made while both the defendant
and the informant were held within a correctional institution.
“Dupree Jackson is an in-custody informant. Kern County Jail is a
correctional institution. This instruction relates only to the statements
allegedly made to Dupree Jackson by Joseph Dixon on or between
August 24th, 2007, and August 29th, 2007, as testified to by Dupree
Jackson.” (Italics added.)
b. Analysis
Section 1127a states, in pertinent part:
“(a) As used in this section, an ‘in-custody informant’ means a
person, other than a codefendant, percipient witness, accomplice, or
coconspirator whose testimony is based upon statements made by the
defendant while both the defendant and the informant are held within a
correctional institution.
“(b) In any criminal trial or proceeding in which an in-custody
informant testifies as a witness, upon the request of a party, the court shall
instruct the jury as follows:
“‘The testimony of an in-custody informant should be viewed with
caution and close scrutiny. In evaluating such testimony, you should
consider the extent to which it may have been influenced by the receipt of,
or expectation of, any benefits from the party calling that witness. This
does not mean that you may arbitrarily disregard such testimony, but you
should give it the weight to which you find it to be entitled in the light of all
the evidence in the case.’”
CALCRIM No. 336 and its counterpart, CALJIC No. 3.20, embody this statute.
The People’s modification of CALCRIM No. 336 is consistent with the definition
of an in-custody informant contained in subdivision (a) of section 1127a. Defendants
say, however, that subdivision (a) of the statute defines who is an in-custody informant,
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not the testimony that must be viewed with caution. Defendants argue that logically
speaking, a witness’s status as an in-custody informant who has gone to the authorities
makes his or her entire testimony suspect, not merely his or her testimony regarding a
purported jailhouse conversation.
We believe the exclusion in section 1127a, subdivision (a), of particular types of
witnesses, and the inclusion in the statute of the basis for the witness’s testimony, shows
defendants’ argument to be incorrect. (See People v. Bivert (2011) 52 Cal.4th 96, 120-
121 [discussing legislative history of § 1127a and distinction Legislature deliberately
drew between types of witnesses].) Who qualifies as an in-custody informant under the
statute cannot be separated from the basis of his or her testimony.
In any event, defendants were not harmed by the modification. Jurors were given
a panoply of instructions on how to judge the credibility of witnesses that applied to
Jackson’s testimony, including that, in evaluating a witness’s testimony, jurors could
consider such factors as whether the witness’s testimony was influenced by bias or a
personal interest in how the case was decided, whether the witness had been convicted of
a felony, and whether the witness was promised immunity or leniency in exchange for
testimony; that Jackson was an accomplice as to any conspiracy to murder David
“Fumes” Taylor, and accomplice testimony had to be corroborated and was to be viewed
with caution; and to consider with caution any unrecorded inculpatory statement by a
defendant. Under the circumstances, CALCRIM No. 336 was duplicative, and the
standard credibility instructions were adequate to guide the jury’s assessment of
Jackson’s testimony. (See People v. Hovarter (2008) 44 Cal.4th 983, 1021-1022; People
v. Payton (1992) 3 Cal.4th 1050, 1059.)
Defendants say, however, that the trial court’s modification of CALCRIM No. 336
led jurors to believe they need not give special scrutiny to Jackson’s testimony, which
had the effect of negating the various other instructions. We disagree.
285.
“When instructions are claimed to be conflicting or ambiguous, ‘we inquire
whether the jury was “reasonably likely” to have construed them in a manner that violates
the defendant’s rights.’ [Citation.] We look to the instructions as a whole and the entire
record of trial, including the arguments of counsel. [Citations.] We assume that the
jurors are ‘“‘intelligent persons and capable of understanding and correlating all jury
instructions … given.’”’ [Citation.]” (People v. Franco (2009) 180 Cal.App.4th 713,
720; see Estelle v. McGuire, supra, 502 U.S. at p. 72; Boyde v. California, supra, 494
U.S. at pp. 378-380 [discussing, and rejecting, various formulations of applicable
standard of review, including that contained in Francis v. Franklin, supra, 471 U.S. at
p. 316].)
Our examination of the entire record of trial shows no reasonable likelihood
defendants’ jurors were misled concerning their assessment of Jackson’s testimony.
Assuming error, it was not prejudicial under state law and did not deprive defendants of a
fair trial. (See People v. Bivert, supra, 52 Cal.4th at pp. 119-121, People v. Carpenter
(1997) 15 Cal.4th 312, 393, superseded by statute on another ground as stated in Verdin
v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
4. Gang Evidence and Enhancements
Dixon contends the instructions given on gang evidence and enhancements were
erroneous in several respects. First, he says the limiting instruction for “‘evidence of
gang activity’” allowed jurors to consider all such gang evidence — including the gang
experts’ testimony and the charged gang crimes — in deciding whether defendants acted
with the intent, purpose, and knowledge required to prove the gang-related crimes and
not just the gang enhancements, and that the trial court never even informed jurors they
could not consider other crimes or gang activities that were not proven at least by a
preponderance of the evidence. Second, he says another limiting instruction allowed
jurors substantively to consider evidence — including gang expert testimonial hearsay
and anecdotes — that is supposed to be limited to the nontruth basis of the opinion by
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telling jurors they had to determine whether the information on which the expert relied
was true and accurate. Third, Dixon says yet another instruction allowed jurors to
consider a charged crime, of which they found a defendant guilty, to decide the issues of
the gang’s primary activities and pattern of gang activity, and presumably knowledge of
gang activity for purposes of the gang special circumstance. Dixon says the errors
deprived him of his right to a fair trial by reducing the prosecution’s burden of proof and
creating a strong risk of conviction based on irrelevant and inflammatory evidence and
criminal disposition, and deprived him of his confrontation rights by permitting
consideration of gang expert testimonial hearsay. Johnson and Lee join. The People say
that, when the challenged instructions are considered in context, there is no reasonable
likelihood the jury misunderstood any of them in the manner alleged.
a. Background
The testimony of the various gang experts is set out at length, ante. Some limiting
instructions were given to portions of their testimony, as well as other gang-related
evidence, at the time the testimony was presented to the jury. For instance, when
Sherman was testifying concerning Dixon’s prior offenses, the trial court admonished the
jury that the evidence was received only to show a predicate offense or pattern of
criminal activity. The prosecutor made it clear that evidence of offenses committed by
nondefendants was for the same limited purpose. In addition, the jury was informed that
Sherman’s testimony concerning defendants’ criminal records was being received for the
limited purpose of Sherman’s opinion whether the particular defendant was a gang
member at the time the crime was committed. When Dixon’s attorney cross-examined
Sherman about the circumstances of the offense that gave rise to Dixon’s manslaughter
conviction, the prosecutor pointed out that the evidence on which Sherman was relying
was hearsay, and came in as a basis for his opinion and not for the truth of the matter.
During the jury instruction conference, the court and counsel had an extensive
discussion about CALCRIM No. 1400 (Active Participation in Criminal Street Gang
287.
(Pen. Code, § 186.22(a))). The prosecutor and Johnson’s attorney expressly agreed with
the notion that if the jury found a defendant guilty of a crime in this case, that crime
could be considered in deciding whether one of the group’s primary activities was
commission of that crime and whether a pattern of criminal gang activity had been
proved. Neither counsel for Lee nor counsel for Dixon objected. When CALCRIM
No. 1403 (Limited Purpose of Evidence of Gang Activity) was discussed, the defense did
not object to the court’s proposed wording of the instruction. During a later discussion of
the gang instructions, there were no objections to CALCRIM Nos. 1401 (Felony or
Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code, § 186.22(b)(1)
(Felony) & § 186.22(d) (Felony or Misdemeanor))) or 1403.
Based on Sherman’s testimony concerning the predicate offenses, the prosecution
revised CALCRIM No. 1400, and the court and counsel had a further discussion about
the instruction. Although specifically asked by the court, no defense attorney voiced any
problem with the proposed wording of the instruction, or the modifications that were
made later.
Insofar as is relevant to this issue, the trial court ultimately gave the following
instructions:
 CALCRIM No. 220: “Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt unless I specifically tell
you otherwise.”
 CALCRIM No. 303: “During the trial certain evidence was admitted for a
limited purpose. You may consider that evidence only for that purpose and for no other.”
 CALCRIM No. 332: “In evaluating the believability of an expert witness,
follow the instructions about the believability of witnesses generally. And, in addition,
consider the expert’s knowledge, skill, experience, training, and education, the reasons
the expert gave for any opinion, and the facts or information on which the expert relied in
reaching that opinion. [¶] You must decide whether information on which the expert
288.
relied was true and accurate. You may disregard any opinion that you find unbelievable,
unreasonable, or unsupported by the evidence.”
 CALCRIM No. 360: “Certain medical and law enforcement personnel
testified that in reaching his or her particular conclusions as an expert witness that he or
she considered statements made by various individuals. You may consider those
statements only to evaluate the expert’s opinion. Do not consider those statements as
proof that the information contained in the statements is true.”
 CALCRIM No. 375: “The People presented evidence that the defendant
[Dixon] allegedly committed the offenses of voluntary manslaughter and/or shooting at
an inhabited dwelling house, both of which are alleged to have occurred in 2001 that
were not charged in this case. You may consider this evidence only if the People have
proved by a preponderance of the evidence that the defendant, in fact, committed the
uncharged offenses. Proof by a preponderance of evidence is a different burden of proof
than proof beyond a reasonable doubt. [¶] … [¶] If you conclude that said defendant
committed the uncharged offenses, that conclusion is only one factor to consider along
with all of the other evidence. It is not sufficient by itself to prove that the defendant is
guilty of the crimes charged or that the enhancements or allegations have been proved.
The People must still prove each charge, enhancement, and allegation beyond a
reasonable doubt.”
 CALCRIM No. 736: “The defendants are charged with the special
circumstance of committing murder while an active participant in a criminal street gang,
in violation of Penal Code Section 190.2(a)(22). [¶] To prove that this special
circumstance is true, the People must prove that: [¶] One, the defendant intentionally
killed James Wallace and/or Vanessa Alcala and/or Baby Boy Alcala; [¶] Two, at the
time of the killing the defendant was an active participant in a criminal street gang; [¶]
Third, the defendant knew that the members of the gang engaged in or have engaged in a
pattern of criminal gang activity; [¶] And, fourth, the murder was carried out to further
289.
the activities of the criminal street gang. [¶] Active participation means involvement
with a criminal street gang in a way that is more than passive or in name only. [¶] The
People do not have to prove that the defendant devoted all or a substantial part of his time
or efforts to the gang or that he was an actual member of the gang. [¶] A criminal street
gang will be defined in another instruction to which you should refer.”
 CALCRIM No. 1400: “The defendant is charged in Count 9 with
conspiracy to participate in a criminal street gang and in Count 11 with participating in a
criminal street gang, in violation of Penal Code Section 186.22(a). [¶] To prove that the
defendant is guilty of this crime as alleged in Count 11 and in order to define the crime
which defendants are charged with conspiring to commit, Count 9, the People must prove
that: [¶] One, the defendant actively participated in a criminal street gang; [¶] Two,
when the defendant participated in the gang he knew that members of the gang engaged
in or have engaged in a pattern of criminal gang activity; [¶] And, three, the defendant
willfully assisted, furthered, or promoted felonious criminal conduct by members of the
gang either by: [¶] A, directly and actively committing a felony offense; [¶] Or, B,
aiding and abetting a felony offense. [¶] … [¶] A criminal street gang is any ongoing
organization, association, or group of three or more persons, whether formal or informal:
[¶] One, that has a common name or common identifying sign or symbol; [¶] Two, that
has as one or more of its primary activities the commission of the sale and possession for
sale of narcotics, … and/or possession of concealed and loaded firearms, and/or threats,
intimidation of witnesses and victims, … and/or shootings and/or murders; [¶] And,
three, whose members, whether acting alone or together, engage in or have engaged in a
pattern of criminal gang activity. [¶] … [¶] A pattern of criminal gang activity as used
here means: [¶] One, the commission of or attempted commission of or conspiracy to
commit or any conviction of any combination of two or more of the following crimes:
Shooting at a residence, voluntary manslaughter, attempted murder by gang member,
possession of an assault rifle, and/or possession of cocaine for sale …. [¶] … [¶] If you
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find the defendant guilty of a crime in this case, you may consider that crime in deciding
whether one of the group’s primary activities was commission of that crime and whether
a pattern of criminal gang activity has been proved. [¶] … [¶] Felonious criminal
conduct means committing or attempting to commit any of the following crimes:
Murder, possession of a firearm by a felon as to defendant Joseph Dixon only, shooting at
an occupied vehicle, robbery, sales of illegal narcotics, assault with a firearm, and/or
conspiracy, other than conspiracy to commit a violation of Penal Code Section
186.22(a).”
 CALCRIM No. 1401: “If you find a defendant guilty of the crimes charged
in Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10, … you must then decide whether for each crime
the People have proved the additional allegation that the defendant committed that crime
for the benefit of, at the direction of, or in association with a criminal street gang…. [¶]
To prove this allegation the People must prove that: [¶] One, the defendant committed
or attempted to commit the crime for the benefit of, at the direction of, or in association
with a criminal street gang; [¶] And, two, the defendant intended to assist, … further, or
promote criminal conduct by gang members. [¶] A criminal street gang is defined in
another instruction to which you should refer.”
 CALCRIM No. 1403: “You may consider evidence of gang activity, …
only for the limited purpose of deciding whether the defendant acted with the intent,
purpose, and knowledge that are required to prove the gang-related crimes or
enhancements and special circumstance allegations charged. You may also consider this
evidence when you evaluate the credibility or believability of a witness and when you
consider the facts and information relied on by an expert witness in reaching his or her
opinion. You may not consider this evidence for any other purpose. You may not
conclude from this evidence that a defendant is a person of bad character or that he has a
disposition to commit crime.”
291.
b. Analysis
“[A] defendant who believes an instruction requires clarification or modification
must request it. [Citation.]” (People v. McKinnon, supra, 52 Cal.4th at p. 670; cf. People
v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [trial court has no duty to give limiting
instruction on gang evidence on own motion].) Defendants made no such request here,
despite ample opportunity to do so. Accordingly, most, if not all, of their claims have
been forfeited. Nevertheless, we address them on the merits in light of defendants’
alternative claims of ineffective assistance of counsel.
We turn first to CALCRIM No. 1403. This instruction — which, as written, gives
the option of allowing consideration of evidence of gang activity in deciding whether the
defendant acted with the intent, purpose, and knowledge that are required to prove the
gang-related crimes, enhancements, and special circumstance allegations charged150 —
has been held to be “neither contrary to law nor misleading.” (People v. Samaniego,
supra, 172 Cal.App.4th at p. 1168.) We see no reason, in the present case, to have
limited the instruction to the gang enhancements, since the evidence showed the charged
crimes were all gang related, in addition to which defendants were charged with active
participation in a criminal street gang.151 As the evidence of gang membership and
activity was clearly relevant with respect to the charged offenses (see People v. Funes
(1994) 23 Cal.App.4th 1506, 1516, 1518-1519), the trial court appropriately instructed
the jury on the purposes for which that evidence could be considered.
150 The instruction reads, in part: “You may consider evidence of gang activity only
for the limited purpose of deciding whether: [¶] [][The defendant acted with the intent,
purpose, and knowledge that are required to prove the gang-related (crime[s]/ [and]
enhancement[s]/ [and] special circumstance allegations) charged(;/ .)].”
151 The instruction given in People v. Samaniego, supra, 172 Cal.App.4th 1148 did
not permit consideration of the evidence of gang activity with respect to gang-related
crimes, but, unlike here, there was no active participation charge under section 186.22,
subdivision (a). (Samaniego, at pp. 1153, 1166.)
292.
In light of the abundance of evidence that was admitted for limited purposes
and/or as to fewer than all defendants, the trial court reasonably chose to remind jurors of
limiting instructions given at the time the evidence was admitted, rather than attempting
to include all that information in an instruction such as CALCRIM No. 1403. We
recognize the complexity involved; as we previously observed, however, “[w]e assume
that the jurors are ‘“‘intelligent persons and capable of understanding and correlating all
jury instructions … given.’”’ [Citation.]” (People v. Franco, supra, 180 Cal.App.4th at
p. 720.) Moreover, “[w]e credit jurors with intelligence and common sense [citation] and
do not assume that these virtues will abandon them when presented with a court’s
instructions. [Citations.]” (People v. Coddington, supra, 23 Cal.4th at p. 594.) Here,
jurors had the attorneys’ arguments and instructions to guide them, and they expressed no
confusion with respect to the purpose(s) for which various evidence permissibly could be
used.
Defendants complain, however, that the trial court failed to instruct jurors that they
could not consider other crimes or gang activities that were not proven by at least a
preponderance of the evidence. To the contrary, jurors were so instructed with respect,
specifically, to Dixon’s prior crimes. Beyond that, jurors were instructed that if the
People had the burden of proving something, this meant they had to prove it beyond a
reasonable doubt unless the court specifically instructed otherwise. Jurors were also
instructed that before they could rely on circumstantial evidence to conclude a fact
necessary to find a defendant guilty had been proved, they had to be convinced the
People had proved each fact essential to that conclusion beyond a reasonable doubt.
“‘“[T]he correctness of jury instructions is to be determined from the entire charge
of the court, not from a consideration of parts of an instruction or from a particular
instruction.” [Citation.]’ [Citation.]” (People v. Smithey, supra, 20 Cal.4th at p. 987.)
Jurors were admonished to consider the instructions together, and we find no reasonable
293.
likelihood they were misled by, or misapplied, the instructions as defendants now claim.
(See People v. Tate, supra, 49 Cal.4th at p. 696.)
Nor did the instructions improperly permit substantive use of testimonial
hearsay.152 Under Gardeley, supra, 14 Cal.4th 605 at pages 618-619, the gang experts
properly related in detail the hearsay on which they relied. (See People v. Valdez, supra,
58 Cal.App.4th at pp. 510-511.) “Most often, hearsay problems will be cured by an
instruction that matters admitted through an expert go only to the basis of his opinion and
should not be considered for their truth. [Citation.]” (People v. Montiel (1993) 5 Cal.4th
877, 919.) CALCRIM No. 360 is adequate for this purpose and does not conflict with
CALCRIM No. 332. “[J]uries are properly instructed to assess critically the disclosed
factual basis of an expert opinion.” (People v. Felix (2008) 160 Cal.App.4th 849, 860.)
Several appellate opinions have held that Crawford does not apply to hearsay
forming the basis for an expert’s opinion, reasoning variously that hearsay in support of
expert opinion is not the sort of testimonial hearsay the use of which Crawford
condemned (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427) or that hearsay
relied on by experts in formulating their opinions is not testimonial because it is not
offered for the truth of the facts stated (People v. Cooper (2007) 148 Cal.App.4th 731,
747; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210) and the expert is subject to
cross-examination concerning his or her opinions (People v. Sisneros (2009) 174
Cal.App.4th 142, 154). In People v. Hill, supra, 191 Cal.App.4th 1104, by contrast, the
court determined that “where basis evidence consists of an out-of-court statement, the
jury will often be required to determine or assume the truth of the statement in order to
utilize it to evaluate the expert’s opinion.” (Id. at p. 1131, fn. omitted.) Nevertheless, the
152 Defendants acknowledge that the court gave CALCRIM No. 360, but say it only
applied to “statements” made to an expert and not to documents on which the expert
relied. Defendants fail to identify any documents that did not consist of written
statements.
294.
court found itself bound by Gardeley and similar California Supreme Court precedent,
and so concluded the trial court in the case before it properly determined the challenged
basis evidence did not violate the hearsay rule or confrontation clause, since it was not
offered for its truth but only to evaluate the expert’s opinions. (Hill, supra, at p. 1131.)
The court further found that most of the hearsay relied upon by the gang expert in its case
would not be considered “testimonial” under Crawford. (Hill, at pp. 1135-1136.)
The United States Supreme Court itself has produced fractured opinions
concerning Crawford’s application to expert testimony and the information on which
such testimony is based. (See, e.g., Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct.
2221]; Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705]; Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305.) Thus far, the California Supreme Court has
attempted to make sense out of these opinions in cases involving basis evidence such as
autopsy and laboratory analysis reports. (People v. Rutterschmidt (2012) 55 Cal.4th 650,
655-656, 658-659; People v. Dungo (2012) 55 Cal.4th 608, 612, 617-618; People v.
Lopez (2012) 55 Cal.4th 569, 573, 579-582; see also People v. Geier, supra, 41 Cal.4th at
pp. 593-594, 596-607.) It has yet to do so, however, with respect to the basis evidence of
a gang expert, whose testimony is usually based, at least in part, in his or her own
experience and investigation.
Until the California Supreme Court says otherwise, Gardeley remains good law.
Not every conversation between a gang member and a gang expert constitutes
“interrogation” or results in “testimonial” evidence for confrontation clause purposes
within the meaning of Crawford and its progeny. Under neither analysis did the
instructions here improperly permit the substantive use of testimonial hearsay in violation
of defendants’ constitutional rights.
Finally, defendants assert jurors should not have been permitted to use the charged
crimes to infer gang primary activities and pattern of criminal gang activity with respect
to the knowledge/active participation elements of the gang special circumstance
295.
allegations. We find no merit to this argument. The current, charged offenses may be
used both to show a defendant’s involvement in a gang was more than nominal or
passive, as required to show active participation (People v. Castenada (2000) 23 Cal.4th
743, 752-753), and in determining whether the People have proven a pattern of criminal
gang activity (People v. Loeun (1997) 17 Cal.4th 1, 10-11, People v. Bragg (2008) 161
Cal.App.4th 1385, 1401; see Gardeley, supra, 14 Cal.4th at p. 625). Although these
cases do not deal with the gang special circumstance, we see no reason it should be
treated any differently, and we reject defendants’ claim of “bootstrapping the special
circumstance on the charged offenses.”
III
COUNT NINE
Count nine charged all three defendants with conspiracy to commit any or all of
four separate criminal offenses — assault with a firearm (§ 245, subd. (a)(2)), murder
(§ 187), robbery (§ 211), and active participation in a criminal street gang (§ 186.22,
subd. (a)). No victim(s) or particular dates (other than March 2-August 22, 2007) were
specified. The jury returned separate guilty verdicts, and separately found true one or
more overt acts, with respect to each defendant and each object of the conspiracy.
Defendants were each sentenced on count nine for conspiracy to commit first degree
murder. They now challenge some of the verdicts and the sentences.
A. Conspiracy to Commit Robbery
Lee says the jury’s finding of conspiracy to commit robbery must be reversed
because there is no overt act related to the robbery. As a result, he claims, the entire
sentence on count nine must be vacated as violative of section 654, because nothing
shows the jury found a conspiracy to murder (for which sentence was imposed) that was
unrelated to murders and attempted murders for which Lee was separately sentenced.
Johnson and Dixon join. The People concede the conspiracy to commit robbery lacks a
valid overt act, but say substantial evidence supports the trial court’s determination that
296.
the count was based on a separate act of conspiracy to murder Fumes (David Taylor);
hence, section 654 does not bar imposition of sentence.
1. Background
The following overt acts were alleged as to all purported objects of the conspiracy
charged in count nine:
 Overt act one: “On or about March 21, 2007, DAVID LEE and/or COREY
JOHNSON were present near the corner of Inyo and Monterey Streets in Bakersfield,
California.”
 Overt act two: “On or about March 22, 2007, DAVID LEE and/or COREY
JOHNSON were present at Deborah and Joe Streets in Bakersfield, California.”
 Overt act three: “On or about April 19, 2007, COREY JOHNSON and/or
DAVID LEE and/or JOSEPH DIXON were present in the 1200 and/or 1300 block of
McNew Court in Bakersfield, California.”
 Overt act four: “On or about April 19, 2007, COREY JOHNSON left
clothing near [a specified address in the 1200 block of] McNew Court in Bakersfield,
California.”
 Overt act five: “On or about August 11, 2007, COREY JOHNSON and/or
JOSEPH DIXON and/or DAVID LEE were present in a red automobile on South Real
Road in Bakersfield, CA.”
 Overt act six: “On or about and between August 9, 2007 and August 18,
2007, COREY JOHNSON, and/or JOSEPH DIXON and/or DAVID LEE were together
in a motor vehicle in Bakersfield, California with a firearm.”
As previously set out in the statement of facts, Agustin and Jackson both testified
about defendants robbing Reese’s house.153 According to Agustin, this occurred after
153 A location that was also referred to in the testimony as the “dodie spot” or
“chronic house,” i.e., a house from which high grade marijuana is sold.
297.
she and Johnson moved back to Bakersfield from San Jose and moved in with P.G. and
Dreenie, thus making it between late June and early July 2007. According to Jackson, it
took place in the summer of 2007, perhaps toward the end of July.
Agustin and Jackson also testified about defendants’ reaction to Raybo’s killing,
which occurred on August 9, 2007. According to Agustin, Johnson told her that a
Mexican individual had shot Raybo, and that Johnson called this person on his cell
phone. When the person refused to meet with him, Johnson threatened him. He and
Dixon found out that the individual’s father lived out on the bluffs near Bakersfield
College, and the two of them went to that location. They were walking toward what they
believed to be the house of the person’s father, but left when they were seen. Agustin did
not recall Johnson saying Lee was with them. According to Jackson, he heard that
Keshawn Johnson, Fumes, and John B were behind the killing. Keshawn Johnson told
Jackson that they set Raybo up, then Fumes shot him. Jackson subsequently got together
with all three defendants, then the four of them took guns and drove up to where Fumes’s
father was believed to live, as Jackson believed Fumes was hiding out there. They talked
about killing Fumes for revenge.
During argument to the jury, the prosecutor told jurors they had a choice of crimes
defendants could have committed that would lead to them being found guilty of
conspiracy to commit assault, but that in order to convict defendants, jurors had to agree
on a particular incident. The prosecutor asked jurors to find defendants guilty of
conspiracy to commit an assault with a deadly weapon on Fumes and/or his father. The
prosecutor acknowledged Jackson was an accomplice, but argued Agustin’s testimony,
taken together with the cell phone tower evidence, provided ample corroboration. The
prosecutor further stated that if jurors did not find a conspiracy to assault Fumes and/or
his father with a deadly weapon, they could choose any of the other shootings, including
the Bonner shooting and the McNew Court murders, as long as they unanimously agreed.
298.
The prosecutor told jurors they needed to make a finding on an overt act, and asked them,
if they used the Fumes shooting, to find overt act six to be true.154
With respect to conspiracy to commit murder, the prosecutor acknowledged there
were plenty of incidents from which to choose. She again noted the jurors had to agree
on which particular act, then asked them to find conspiracy to murder Fumes and/or his
father, since the other murders were already covered by the substantive crimes.
With respect to conspiracy to commit robbery, the prosecutor argued that the
charge involved the robbery of Reese. She informed the jury that overt act six applied.
Jurors were instructed that they all had to agree that at least one alleged overt act
was committed by at least one alleged member of the conspiracy, but did not all have to
agree on which overt acts were committed or who committed them. They were further
instructed that they could not convict a defendant of conspiracy unless they all agreed the
defendant conspired to commit at least one of the crimes alleged as objects of the
conspiracy, and all agreed which crime he conspired to commit.
All six overt acts alleged were found true, with respect to all alleged objects of the
conspiracy, as to Johnson. As to Dixon, overt acts one and two were found not true as to
any crimes. Overt act four was found not true as to conspiracy to commit active
participation in a gang, murder, or robbery. Overt act five was found not true as to
conspiracy to commit robbery.155 As to Lee, only overt act four was found not true, and
then only as to conspiracy to actively participate in a gang.
154 The prosecutor also noted that Johnson and Lee could be found guilty of
conspiracy to commit assault with a deadly weapon based on the incident of March 22,
2007, in which they went to a location on Deborah Street to shoot people from a rival
gang, and that that was covered by overt act two.
155 When the clerk read the verdicts, she read that overt act five was found true with
respect to Dixon and conspiracy to commit robbery. The written verdict contained in the
clerk’s transcript, however, shows the finding on overt act five was left unsigned with
299.
Each defendant was sentenced, on count nine, to a fully consecutive term of
25 years to life in prison (doubled to 50 years to life in Dixon’s case due to his prior
strike conviction) for conspiracy to commit first degree murder. During Dixon’s
sentencing hearing, the court explained that, while count nine alleged a conspiracy to
violate several Penal Code sections, conspiracy to commit murder carried the greatest
term of imprisonment. In connection with count nine, the court further ordered each
defendant to pay restitution, in an amount to be determined by the probation department,
to David Taylor (Fumes) or his father “for related losses.”
2. Analysis
“A criminal conspiracy exists when two or more persons agree to commit a crime
and do some overt act in furtherance of the agreement. [Citations.]” (People v. Cockrell
(1965) 63 Cal.2d 659, 667; §§ 182, 184.) However, “acts committed by conspirators
subsequent to the completion of the crime which is the primary object of a conspiracy
cannot be deemed to be overt acts in furtherance of that conspiracy.” (People v. Zamora
(1976) 18 Cal.3d 538, 560.)
The People concede that the conspiracy to commit robbery, which took place in
July 2007, is not supported by a valid overt act. We agree, since overt act six postdated
the robbery. The verdicts finding each defendant guilty of conspiracy to commit robbery
must be reversed, and the jury’s findings on the overt acts alleged in support of the
conspiracy to commit robbery must be vacated.
This does not automatically require that sentence on count nine be vacated,
however, because the jury’s verdicts demonstrate they unanimously found defendants
guilty on the other theories of conspiracy as well. (See, e.g., People v. Pulido (1997) 15
Cal.4th 713, 727; People v. Kelly (1992) 1 Cal.4th 495, 531.) The jury not having
respect to the conspiracy to commit robbery. This discrepancy does not affect our
analysis of the issues.
300.
specified the conspiracy to commit which murder(s) it found, the question becomes
whether the trial court properly could impose sentence based on the conspiracy to murder
Fumes or whether it was required to assume the conspiracy-to-commit-murder verdict
was based on one or more of the charged shootings. If the trial court properly based
count nine’s sentence on the conspiracy to murder Fumes, that sentence can stand. (See
People v. Ramirez (1987) 189 Cal.App.3d 603, 617.) Otherwise, section 654 prohibited
the court from sentencing defendants on both the conspiracy and on the substantive
offense that was the object of the conspiracy. (People v. Hernandez (2003) 30 Cal.4th
835, 866, disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758,
824, fn. 32.)156
Section 654’s purpose is to ensure that punishment is commensurate with a
defendant’s culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Thus, the
statute “precludes multiple punishment for a single act or indivisible course of conduct
punishable under more than one criminal statute. Whether a course of conduct is
divisible and therefore gives rise to more than one act within the meaning of section 654
depends on the ‘intent and objective’ of the actor. [Citation.] If all of the offenses are
incident to one objective, the court may punish the defendant for any one of the offenses,
but not more than one. [Citation.] If, however, the defendant had multiple or
simultaneous objectives, independent of and not merely incidental to each other, the
defendant may be punished for each violation committed in pursuit of each objective
even though the violations share common acts or were parts of an otherwise indivisible
course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-
268; see also People v. Harrison (1989) 48 Cal.3d 321, 335.)
156 Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”
301.
Where conspiracy is involved, “a defendant cannot be punished for both a
substantive offense and a conspiracy to commit it unless the conspiracy had an unlawful
objective in addition to the commission of the substantive offense.” (In re Romano
(1966) 64 Cal.2d 826, 828.) “A fortiori it would violate that rule to sentence a defendant
for conspiracy to commit several crimes and for each of those crimes where the
conspiracy had no objective apart from those crimes. If, however, a conspiracy had an
objective apart from an offense for which the defendant is punished, he may properly be
sentenced for the conspiracy as well as for that offense. [Citation.]” (In re Cruz (1966)
64 Cal.2d 178, 180-181.)
“The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them. [Citations.] ‘We must “view the evidence in a
light most favorable to the respondent and presume in support of the [sentencing] order
the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]” [Citation.]’ [Citation.]” (People v. Hutchins (2001) 90 Cal.App.4th 1308,
1312-1313, italics added.) However, “[a]lthough the determination of whether the facts
and circumstances reveal a single intent and objective within the meaning of section 654
is generally a factual matter, the dimension and meaning of section 654 is a legal
question. ‘The applicability of a statute to conceded facts is a question of law.’
[Citation.]” (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.)
We believe the question whether the trial court here could properly determine, for
sentencing purposes, which murder was the object of the conspiracy to commit murder,
of which defendants were convicted, is one of law, not fact. (See People v. Perez, supra,23 Cal.3d at p. 552 & fn. 5.) We further believe that when a specific object (or, as in this
case, victim) of a conspiracy is argued to the jury and jurors find true the overt act(s)
related thereto, it is within the trial court’s power to rely on that object to make its factual
302.
determinations under section 654, at least absent some indication in the record that jurors
did not actually rely on that specific object as a basis for their verdict.
Although we have been unable to find any case addressing this exact issue, a
number of cases suggest our conclusion is correct. For example, in People v. Osband
(1996) 13 Cal.4th 622, the trial court imposed consecutive sentences for the rape and
robbery of victim S. On appeal, the defendant claimed his sentence violated section 654
and the proscription against double jeopardy, because the jury may have found him guilty
of felony murder on the basis of the underlying crimes of rape and/or robbery. (Osband,
at p. 730.) The People responded that because it was not known whether the defendant
was found guilty of first degree murder on a theory of felony murder or premeditation
and deliberation, there was no constitutional or statutory violation. The People further
claimed that when the court sentenced the defendant on the rape and robbery counts, it
implicitly found the crimes against S. involved more than one objective, a factual
determination that had to be sustained if supported by substantial evidence. (Ibid.) The
California Supreme Court agreed with the latter part of the People’s argument and
declined to stay any sentence, while not deciding whether a stay was required because the
jury might have found the defendant guilty on a theory of felony murder. (Id. at pp. 730-
731.)
In People v. Assad (2010) 189 Cal.App.4th 187, the defendant contended that
because the prosecution charged aggravated mayhem, as a continuous conduct crime
occurring in the same time period as that charged for the torture count, it would constitute
double punishment to punish him twice for the same continuous course of conduct. (Id.
at p. 200.) The Court of Appeal rejected the claim, saying: “The flaw in this argument is
that the application of section 654 does not depend on the allegations of the charging
instrument, but on what was proven at trial. Here, the People argue that ‘[t]he evidence
offered at trial established multiple acts that satisfied the legal requirements of both
torture and aggravated mayhem such as, the knife burning incident and the three separate
303.
beatings that occurred on September 9 and 10, 2007. Thus, the jury, which was given a
unanimity instruction and was further instructed to “consider each count separately and
return a separate verdict for each one,” had multiple incidents to choose from in reaching
its guilty verdicts for both counts.’ Defendant does not dispute the truth of this assertion.
Thus, it follows the trial court — like the jury — reasonably could have concluded the
torture and aggravated mayhem counts were not based on the same conduct or course of
conduct, and therefore the trial court did not err in refusing to stay the sentence on one or
the other of those counts.” (Ibid.)
In People v. Ramirez, supra, 189 Cal.App.3d 603, the defendants were convicted
of multiple sex crimes, robbery and attempted robbery, attempted murder, and two counts
of conspiracy to commit murder, apparently one with respect to each victim. (Id. at
p. 607.) The appellate court discussed the general rules relating to section 654 and
conspiracy, then stated:
“In the present case, had murder been the sole object of the
conspiracy it would be impermissible to punish both the conspiracy and the
substantive offense of attempted murder, but permissible to punish the sex
offenses and robberies which were not objects of the conspiracy. Since the
evidence necessarily shows an agreement to commit sex offenses as well as
murder, however, punishment for both the sex offenses and the conspiracy
violated the prohibition of section 654 just as would punishment for both
conspiracy and attempted murder — despite the fact that only conspiracy to
commit murder was charged. Thus the case must be remanded to allow the
trial court to choose whether to stay sentence on the conspiracy or on the
sex offenses. [Citation.] The stay of sentence on the attempted murder
counts must, of course, remain.
“Punishment on the robbery counts presents a somewhat different
issue, as the facts do not similarly compel a conclusion that these offenses
were an object of the conspiracy. The robberies occurred after the sex
offenses were well under way, were minor in comparison to the other
offenses, and were not as likely a subject of agreement between the
appellants. Although the trial court could reasonably have relied upon
these factors to conclude that the robberies were spontaneous acts, separate
from the conspiracy and therefore independently punishable, the record
304.
does not indicate whether in fact it did so. Upon remand appellants are
entitled to have the trial court make the appropriate finding as to their intent
and overall objective. [Citation.]” (People v. Ramirez, supra, 189
Cal.App.3d at p. 617, fns. omitted.)
In People v. Cooks (1983) 141 Cal.App.3d 224 (Cooks), Cooks was charged in a
separate action with the October 30, 1973, murder of Frances Rose. He pled guilty in
December 1973. (Id. at p. 317.) In May 1974, the grand jury returned an indictment
accusing Cooks and three others of conspiracy to commit murder between October 20,
1973, and April 30, 1974. Cooks and a cohort were also accused of multiple offenses,
including murder, in which Quita Hague was the victim; and multiple offenses, including
assault with a deadly weapon, in which Richard Hague was the victim. The crimes
against the Hagues were committed on October 20, 1973. The other two defendants were
accused of the January 28, 1974, murders of Tana Smith and Jane Holly; and one was
charged with the April 14, 1974, assault with a deadly weapon against Ward Anderson
and Terry White. All defendants were convicted as charged. (Id. at pp. 242-243.)
On appeal, Cooks claimed that allowing evidence of the Frances Rose murder to
be received in this case violated his right to protection against double jeopardy under the
state and federal Constitutions, and also resulted in double punishment under section 654.
(Cooks, supra, 141 Cal.App.3d at p. 317.) The appellate court stated: “It is true that
while a defendant may be convicted of the substantive crime and the conspiracy to
commit it, he may not be punished for both offenses unless the conspiracy extended
beyond the substantive offense. [Citations.] In this case the alleged conspiracy was not
limited to the murder of Frances Rose but extended to the murder of a number of other
people. Under these circumstances, Cooks could be lawfully punished for murdering
Frances Rose and for conspiracy to murder. [¶] Likewise, [the other three defendants]
could be lawfully punished for the substantive offenses of first degree murder and for
conspiracy to commit murder.” (Ibid.)
305.
From the foregoing cases — especially Cooks — we discern that where there
could be multiple bases on which the jury could return a verdict of conspiracy to commit
a specific crime, punishment may be imposed without knowing, for purposes of
section 654, which particular basis or bases jurors agreed upon. As long as substantial
evidence supports its determination, “‘[i]n sentencing pursuant to Penal Code
section 654, the trial court retains discretion to impose punishment for the offense that it
determines, under the facts of the case, constituted the defendant’s “primary objective”’
keeping in mind the overall purpose of section 654. [Citation.]” (People v. Cleveland,
supra, 87 Cal.App.4th at p. 268, italics added.)
People v. Coelho (2001) 89 Cal.App.4th 861 (Coelho), on which defendants rely,
does not alter our conclusion. In that case, the issue was whether the trial court had
discretion to impose concurrent or consecutive sentences, or whether consecutive
sentences were mandatory, under the “Three Strikes” law. The question turned on
whether the current offenses were committed on the same occasion and arose from the
same set of operative facts. (Coelho, supra, 89 Cal.App.4th at pp. 864-865.) To prevent
a court from negating the defendant’s right to a jury trial by clarifying ambiguous
verdicts and assigning factual bases to convictions other than those actually found by the
jury, the appellate court held that “at sentencing, a trial court must accept and rely upon
the same factual basis which the jury unanimously selected and relied upon to convict the
defendant on a particular count.” (Id. at pp. 875-876.) The appellate court further
determined that in determining the factual basis for a jury’s verdict, “the federal standard
of certainty beyond a reasonable doubt applies. [Citation.]” (Id. at p. 876.) It concluded
that when a trial court “is unable to determine beyond a reasonable doubt which unlawful
acts among many the jury based its verdicts on, the court for the purposes of sentencing
should assume the factual bases that would provide the most discretion.” (Id. at p. 885.)
Although Coelho contains language that could be interpreted as applying to the
issue in the present appeal, that case does not apply because it does not deal with
306.
section 654. Unlike the provisions of the Three Strikes law at issue in Coelho,
section 654 “‘is a sentencing “reduction” statute.… [I]t is a discretionary benefit
provided by the Legislature to apply in those limited situations where one’s culpability is
less than the statutory penalty for one’s crimes. Thus, when section 654 is found to
apply, it effectively “reduces” the total sentence otherwise authorized by the jury’s
verdict.’” (People v. Solis (2001) 90 Cal.App.4th 1002, 1022; cf. People v. Black (2007)
41 Cal.4th 799, 823; People v. Black (2005) 35 Cal.4th 1238, 1263-1264, overruled on
another ground in Cunningham v. California (2007) 549 U.S. 270, 293.)
Having concluded the trial court here appropriately determined which murder was
the object of the conspiracy to commit murder of which defendants were convicted, we
turn to whether substantial evidence supports the court’s findings. In argument, the
prosecutor urged jurors to base their verdict on the conspiracy to murder Fumes. The
testimony of Jackson, if sufficiently corroborated since he was an accomplice (§ 1111;
People v. Garcia (2000) 84 Cal.App.4th 316, 325), provided substantial evidence of that
offense.
To be adequate, corroboration must be “by such other evidence as shall tend to
connect the defendant with the commission of the offense; and the corroboration is not
sufficient if it merely shows the commission of the offense or the circumstances thereof.”
(§ 1111.) “The corroboration must, without aid from the accomplice’s testimony,
connect the defendant to the charged offense, but may be circumstantial, slight and
entitled to little consideration when standing alone. [Citations.] Corroborating evidence
need not be sufficient to establish the defendant’s guilt or corroborate the accomplice to
every fact to which the accomplice testified. [Citations.] It must raise more than a
suspicion or conjecture of guilt, and is sufficient if it connects the defendant with the
crime in such a way as to reasonably satisfy the trier of fact as to the truthfulness of the
accomplice. [Citations.]” (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1177-
307.
1178.) Corroborative evidence must be furnished by means of a nonaccomplice witness.
(People v. Fauber, supra, 2 Cal.4th at p. 834.)
Agustin’s testimony concerning what Johnson told her about the incident
sufficiently corroborated Jackson’s testimony with respect to Johnson and Dixon.157 Cell
phone tower records showing Lee’s phone was near Bakersfield College — which in turn
was near the house of Fumes’s father — on the date and around the time of evening
Jackson said he and defendants went looking for Fumes, sufficiently corroborated
Jackson’s testimony as to Lee. Accordingly, the trial court did not err by imposing, and
not staying, sentence for conspiracy to commit murder on each defendant with respect to
count nine.
B. Conspiracy to Actively Participate in a Criminal Street Gang
Lee claims he was improperly charged with conspiracy to commit a violation of
section 186.22, subdivision (a), active participation in a criminal street gang. He says this
is an invalid crime because a violation of section 186.22 is itself a conspiracy, and “a
conspiracy to commit a conspiracy is a nonsensical redundancy that results in
unconstitutional vagueness.”158 He further says the subject of conspiracy relating to
gangs and active participation is usurped by section 182.5, a specific statute on the
subject. Because of the error, he says, the prosecution was permitted to introduce
evidence of the codefendants’ criminal activities and statements (Evid. Code, § 1223) that
were unrelated to Lee or to the specific other crimes charged in the case. Johnson and
157 Agustin was not an accomplice to the conspiracy to murder David “Fumes”
Taylor. Additionally, Johnson’s statements to Agustin about the incident did not require
corroboration. (See People v. Sully, supra, 53 Cal.3d at p. 1230; People v. Jeffery (1995)
37 Cal.App.4th 209, 218.)
158 Such a claim may be raised for the first time on appeal. (See, e.g., §§ 1004, 1012;
People v. McKenna (1889) 81 Cal. 158, 159; In re P.C. (2006) 137 Cal.App.4th 279, 287;
People v. Butler (1980) 105 Cal.App.3d 585, 588.)
308.
Dixon join. The People say the offense is constitutionally valid, and in any event, the
coconspirator hearsay exception applied even in the absence of a formal conspiracy
charge.
1. Background
During the course of trial, some evidence that otherwise would have been limited
to one or two of the defendants or as to purpose — or that might not have come in at all
— was admitted against all defendants or for an unlimited purpose due to the existence of
the conspiracy charge. Neither the prosecutor nor the court always specified which crime
alleged as an object of the conspiracy was the basis for finding the evidence relevant or
otherwise admissible. It is apparent, however, that some of the evidence was admitted
against all three defendants pursuant only to the charged conspiracy to actively
participate in a criminal street gang.
At one point, a discussion took place outside the jury’s presence about whether the
overt acts alleged in the indictment addressed the subjects of some of the testimony.
During the course of the debate, counsel for Lee observed that since it took a minimum of
three people to have a gang, it seemed redundant to allege, by means of a conspiracy
charge, that Lee was part of what was already a group of more than two people doing
something for the benefit of the gang. With counsel for the other defendants joining in
his comments, counsel for Lee asked whether it was the position of the law “that
everyone that is responsible for having committed 186.22(a) also be a conspirator for
186.22(a)?” Counsel for Lee argued that if there were the requisite number of people for
a gang, then any time there were two individuals, they were necessarily conspiring to be
in the gang. He asserted that allowing liability by duplicate means was unconstitutional.
At that point, unfortunately, the discussion turned to hearsay exceptions and never
fleshed out the question whether a gang is essentially a conspiracy and so whether
alleging conspiracy to actively participate in a gang amounted to charging conspiracy to
participate in a conspiracy.
309.
2. Analysis
In our original opinion, we agreed with defendants’ claim they were improperly
charged with conspiring to actively participate in a criminal street gang. We found the
crime of actively participating in a criminal street gang was, at its core, a form of
conspiracy. As such, we concluded a charge, that would most accurately be characterized
as a conspiracy to commit a conspiracy, was improper. The California Supreme Court
reversed our holding on this issue. We are bound to follow its pronouncement. (Auto
Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455; People v. McGuire
(1872) 45 Cal. 56, 57-58.) Accordingly, we reject defendants’ challenge to the charge
(and jury’s finding) of conspiracy to actively participate in a criminal street gang/violate
section 186.22, subdivision (a).
IV
CUMULATIVE PREJUDICE
Defendants contend the cumulative effect of the errors at trial rendered the trial
fundamentally unfair. The People disagree.
A number of errors occurred at trial, some trivial and some not. No individual
error furnished cause for reversal of the verdicts in their entirety. When we examine the
cumulative effect of the errors found and assumed, we still find no cause for reversal.
The properly admitted evidence, while primarily circumstantial, was overwhelming as to
each of the three defendants. (Contrast People v. Felix (1993) 14 Cal.App.4th 997, 1008-
1009.) Although the prosecutors had an unfortunate tendency to overprove their case
(see People v. Williams, supra, 170 Cal.App.4th at p. 610), neither that nor the errors —
even taken together — undermine the fairness of the trial as a whole. Although
defendants did not receive a perfect trial, they received the fair one to which they were
entitled. (People v. Beeler (1995) 9 Cal.4th 953, 994.)
Nor did “‘“gross unfairness”’” or the denial of a fair trial result from the denial of
severance. (People v. Ervin (2000) 22 Cal.4th 48, 69.) Our review of the record as a
310.
whole “fails to show that the jurors in this joint trial were unable or unwilling to assess
independently the respective culpability of each codefendant or were confused by the
limiting instructions.” (Ibid.; contrast People v. Biehler (1961) 198 Cal.App.2d 290, 298,
303.) The mere possibility of juror confusion is not enough. (See Ervin, at p. 69.)
V
MARSDEN
Lee contends the trial court erred by denying his postverdict request to substitute
appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) The People say
the court acted within its discretion.
A. Background
On the date originally set for sentencing, Lee asked for a Marsden hearing with
respect to his trial attorney.159 Lee asserted he was denied a fair trial and the effective
assistance of counsel, and he requested new counsel to bring a new trial motion based on
ineffective assistance of counsel. Lee claimed:
 His case should have been severed from that of his codefendants.
 Counsel should have filed a motion in limine to exclude gang expert
testimony.
 Counsel should have filed a motion in limine to impeach prosecution
witnesses who were biased and had motive and opportunity to lie.
 Counsel failed to object to or file motions to exclude the prison letters
authored by Lee’s brother, Lee’s tattoo, and the Internet postings.
 Witnesses existed who could have testified concerning the events of
March 21, 2007, and the condition of Lee’s hand after he was shot, and who could have
159 Lee twice sought unsuccessfully to have new counsel appointed prior to trial. He
does not now challenge the rulings on those motions.
311.
testified he was not at the tattoo parlor when Bonner was there. No investigator talked to
these witnesses and they were not called at trial.
 Counsel failed to obtain Lee’s cell phone records for the entire time period
to show a pattern of calls, to call an expert on cell phone records, and to call an expert
disputing the prosecution’s cell phone tower evidence.
 Counsel failed to present evidence that Saleta Roseburr’s house, the Crip
house at Monitor and Pacheco Road, and where Bonner was shot were on the same cell
phone tower, so Lee could have been at Roseburr’s house when the shooting took place.
 Counsel failed to call a witness to testify concerning how long Lee had had
his firearm tattoo and what it meant.
 Counsel failed to call the person who actually created the MySpace page
and put “Keepin’ it Gangsta” on it, or Lee’s cousin, who wrote the messages the
prosecutor found significant.
 Lee wanted to testify about the messages he wrote and what they meant, but
counsel told him it probably was not a good idea to testify.
 Counsel failed to subpoena a witness who was subpoenaed by counsel for
Johnson, or to request a bench warrant when the witness, who could have testified
Bonner was lying about some of Bonner’s activities before the shooting, failed to appear.
 Counsel failed to elicit the distance between McNew Court and the
Country, to show Johnson would not have had to leave his clothes at a crime scene if he
had a getaway driver, since he could have run to Country Boy Crip territory in under a
minute.
 Counsel failed to present evidence that when gang members rent cars, they
do not use credit cards and their own driver’s licenses. Counsel also failed to call
witnesses who would have testified that when Lee rented cars, he was out of town with
them.
312.
 Counsel failed to present jail housing records to show that Bonner could not
have been threatened in jail.
 Counsel failed to present a letter Jackson wrote to Dixon apologizing and
stating Jackson was lying.
 Counsel failed to introduce Lee’s medical records to show he could not
have fired a gun because, after he was shot, his fingers would not bend.
 Although counsel sought to exclude Lee’s statement to Johnson in the back
hallway, counsel used it in his closing argument against Lee’s wishes and even though
Lee told him it was not what he said.
 Counsel used an argument tying Lee to the McNew Court shootings against
Lee’s wishes.
 Counsel failed to provide evidence and paperwork to Lee or to go over
things with him. Although, as the court noted, the two spoke in the courtroom, there was
only so much they could discuss there, and by then it was too late because trial had
started.
 Counsel refused to call any of Lee’s witnesses, and did not have an
investigator talk to Lee about which witnesses should be contacted. Counsel himself saw
Lee at the jail only about four times.
The court questioned defense counsel about some of Lee’s claims. Counsel
related that he had an investigator if he was meeting with a client and the client indicated
there would be a reason to have alibi witnesses investigated. Early on, however, Lee
indicated he did not remember where he was on the dates of the various incidents, and so
there was not really a list of people to have an investigator talk to.
With respect to Lee’s claim no witnesses were called, counsel explained there was
indeed an expert appointed to review the cell tower information, a DNA expert was
appointed early on, and a witness with a criminalistics background was called at trial. As
for other potential witnesses, it was never the People’s theory that Lee was a shooter at
313.
any of the crime scenes, but rather that he was the driver. Because there were
photographs of vehicles owned and driven by Lee that were outside the Bakersfield area
during the time of the incidents, a reasonable inference could be drawn that he was
capable of driving. Counsel did not call Lee’s doctor because (1) the doctor was not an
expert in trajectory, and (2) would have had to speculate about what Lee’s condition
might have been at a certain time or date had he taken a certain medication. Moreover,
Lee’s injuries were not suffered during a criminal act Lee was alleged to have committed.
The crimes Lee was convicted of committing were incidents in which the People’s theory
was that he was capable of driving a car. There was no indication he fired a weapon
during those incidents.
With respect to whether Lee was given the opportunity to testify, counsel pointed
out that Lee was admonished of his rights in that regard on the record. Counsel explained
he understood it was a client’s constitutional right to testify or not, and that counsel did
not make that decision for his clients.
Counsel chose to address Lee’s other claims by category, rather than individually.
With respect to motions and objections, counsel observed, and the court confirmed, that
counsel filed a number of in limine motions. Counsel also objected, during the trial
process, on both state and federal constitutional grounds. Experts were appointed and
utilized. Counsel interviewed but chose not to call Burts to impeach Agustin, believing
his testimony would be harmful; counsel for Dixon ultimately called him as a witness.
As far as character witnesses, counsel pointed out that the nature of character evidence is
not someone who is called to testify to what they believe a tattoo to mean. Counsel
believed such testimony would be objectionable on a number of grounds. Finally, as to
the issue of alibi witnesses, Lee was unable to say where he was or when, making it
difficult to acquire alibi witnesses.
Counsel acknowledged that he and Lee had disagreements concerning what
counsel would say during closing argument. After Dixon and Burts testified, and Burts
314.
corroborated some of Agustin’s testimony, counsel felt he had to shift positions to
mitigate the damage done by that testimony and the testimony concerning the cell phone
towers. Counsel felt it was in Lee’s best interests to ask for instructions on lesser
included offenses with respect to the Bonner shooting. He also chose to give the jury an
option they could accept, which was that Lee was contacted after the McNew Court
shootings and used as a means of escape, which was why his cell phone was in the area.
Counsel also acknowledged that he and Lee disagreed about whether to call
certain witnesses such as Lee’s father. Counsel explained that as a defense lawyer
assessing credibility, he had to consider motivation and bias, the amount of time that had
passed, and any criminal records that might be present on certain witnesses. Ultimately,
counsel had to make those decisions.
Counsel conceded that his visits with Lee were minimal. He explained, however,
that Lee had always maintained he was not involved, but did not remember where he was
at the various times. Accordingly, counsel found it more fruitful to use his time doing
other things such as trying to use Lee’s work records as a platform to determine whether
he might have been working some of the days in question, going through rental car
receipts, and the like.
The court invited Lee to respond. Lee questioned why, if there was no indication
he was the actual shooter, counsel asked for the lesser offenses, which gave the jury the
option of finding him guilty as the shooter in the Bonner incident. Lee also noted his
attorney asked no questions of Burts, even though Burts testified Agustin said either Lee
or Dixon did not do anything. Lee conceded he told counsel that he did not know where
he was at on all of the occasions, but there were witnesses who could have said where he
was within certain time periods. Lee also opined that the expert witness called by
counsel was not an effective witness. Lee also complained that counsel did not call the
officers who were present on at least two occasions when Lee’s house was searched, to
testify they did not find any gas masks or gang attire; moreover, counsel did nothing to
315.
show that the Robert Lee for whom an obituary was found committed suicide and was
not related to Lee.
Counsel admitted having a copy of Jackson’s jail kite. However, when he asked
Jackson on the stand whether he had ever communicated with Dixon about the incident or
written anything to him, Jackson denied it. This left counsel unable to authenticate the
writing. Counsel pointed out that Dixon could not do it, because it was made through a
third person and was not a direct communication. Counsel also pointed out that he gave
Lee a search warrant application containing the best description of evidence available at
the time.
In ruling on Lee’s motion for new counsel, the trial court observed that the
standard was the same regardless of when the motion was made, to wit, whether defense
counsel was not providing adequate representation or whether counsel and the defendant
had such an irreconcilable conflict in their relationship that ineffective representation was
likely to result. The court stated:
“… I find from a review of all of the matters you’ve set forth here this
morning and your written papers and your attachments in this matter, and
from the totality of the evidence that [counsel] at all stages of this case, …
has provided very adequate representation and that you and [counsel] have
not engaged in an irreconcilable conflict in your relationship that would
prevent ineffective [sic] representation in the future, and arguments that
counsel would not make certain motions, disagreement on trial tactics,
refusal to make certain arguments, those, as they stand alone, or in this case
as you mentioned them, are insufficient to require discharge of appointed
counsel. [¶] … [¶]
“If you’re telling your attorney that he needs to call witnesses, needs
to do certain things, and you don’t know where you are on a given day, it
puts the attorney in a very difficult position.
“And I watched with great admiration on your attorney’s
presentation of the final argument, and … he used a PowerPoint display,
and I have never seen, in 26 years on the bench, a more effective use of
electronic media and his presentation and the way in which he linked all of
the evidence. I’ve just never seen an argument presented quite so well.
316.
“And I think when an attorney has … limited material to present, he
did the best he could under those circumstances.
“So I think that what you’re trying to do certainly can’t be criticized,
but you’re trying to say that -- or misrepresent -- and I say this most
respectfully to you -- motives on his part or lack of determination. I mean,
he’s been in our court many, many times and he goes to the mat for
everyone, regardless of their position, and I certainly don’t think that he
gave up on you or failed to call any appropriate witness.”
The court further found no irreconcilable conflict. As a result, it denied the
Marsden motion.
B. Analysis
“[C]riminal defendants are entitled under the Constitution to the assistance of
court-appointed counsel if they are unable to employ private counsel. However, the
decision whether to permit a defendant to discharge his appointed counsel and substitute
another attorney during the trial is within the discretion of the trial court, and a defendant
has no absolute right to more than one appointed attorney…. [¶] ‘“The right of a
defendant in a criminal case to have the assistance of counsel for his defense … may
include the right to have counsel appointed by the court … discharged or other counsel
substituted, if it is shown … that failure to do so would substantially impair or deny the
right …, but the right to such discharged or substitution is not absolute, in the sense that
the court is bound to accede to its assertion without a sufficient showing … that the right
to the assistance of counsel would be substantially impaired … in case the request is not
granted, and within these limits there is a field of discretion for the court.”’ [Citations.]”
(Marsden, supra, 2 Cal.3d at p. 123.)
Marsden established “that the trial court must give the defendant the opportunity
to explain the reasons for desiring a new attorney. [Citation.] ‘[T]he trial court cannot
thoughtfully exercise its discretion in this matter without listening to [the defendant’s]
reasons for requesting a change of attorneys.’ [Citation.] Accordingly, ‘When a
defendant moves for substitution of appointed counsel, the court must consider any
317.
specific examples of counsel’s inadequate representation that the defendant wishes to
enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the
motion is not an abuse of discretion unless the defendant has shown that a failure to
replace the appointed attorney would “substantially impair” the defendant’s right to
assistance of counsel. [Citations.]’ [Citation.]” (People v. Smith (1993) 6 Cal.4th 684,
690-691.)
Marsden applies posttrial as well as preconviction, and the standard, although
sometimes worded differently, is the same. “‘When, after trial, a defendant asks the trial
court to appoint new counsel to prepare and present a motion for new trial on the ground
of ineffective assistance of counsel, the court must conduct a hearing to explore the
reasons underlying the request. [Citations.] If the claim of inadequacy relates to
courtroom events that the trial court observed, the court will generally be able to resolve
the new trial motion without appointing new counsel for the defendant. [Citation.] If, on
the other hand, the defendant’s claim of inadequacy relates to matters that occurred
outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of
counsel, then the trial court may, in its discretion, appoint new counsel to assist the
defendant in moving for a new trial. [Citations.]’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 346.)
The “colorable claim” language originated in People v. Stewart (1985) 171
Cal.App.3d 388, 396-397, which was the first case to apply Marsden posttrial (see People
v. Smith, supra, 6 Cal.4th at p. 691). The California Supreme Court has made it clear that
this does not state a lesser standard than that established in Marsden (Smith, at p. 693);
instead, “the standard expressed in Marsden and its progeny applies equally
preconviction and postconviction…. A defendant has no greater right to substitute
counsel at the later stage than the earlier.” (Id. at p. 694.) Stewart has been disapproved
to the extent its language implies a different rule than that of Marsden. (People v. Smith,
supra, 6 Cal.4th at pp. 694, 696.)
318.
In the present case, Lee moved to discharge defense counsel and have new counsel
appointed to bring a motion for new trial based on ineffective assistance of counsel. (See
People v. Lucky (1988) 45 Cal.3d 259, 281.) Thereafter, the trial court afforded him
ample opportunity to explain the reasons for his request. (See People v. Vera (2004) 122
Cal.App.4th 970, 979.) Accordingly, we review the denial of Lee’s motion for abuse of
discretion. (People v. Memro (1995) 11 Cal.4th 786, 857; Vera, at p. 979.) “[D]iscretion
is abused whenever the court exceeds the bounds of reason, all of the circumstances
being considered. [Citations.]” (People v. Giminez, supra, 14 Cal.3d at p. 72.)
We conclude the trial court’s ruling was reasonable, both with respect to counsel’s
purported inadequacies and any irreconcilable conflict between client and counsel. (See
People v. Memro, supra, 11 Cal.4th at p. 857.) The court patiently permitted Lee to fully
state his claims, seeking clarification where necessary for the court to ensure it
understood Lee’s true complaints. It inquired of defense counsel with respect to
particular assertions by Lee, and solicited Lee’s response after defense counsel addressed
the various categories of Lee’s claims. Many of Lee’s complaints of counsel’s purported
inadequacy amounted to tactical disagreements. Marsden error will not be found under
such circumstances. (People v. Dickey (2005) 35 Cal.4th 884, 922; see also People v.
Lazenby (1992) 6 Cal.App.4th 1842, 1846.) To the extent there was a credibility question
between Lee and defense counsel, the trial court was entitled to accept counsel’s
explanations. (People v. Smith, supra, 6 Cal.4th at p. 696.) In light of those
explanations, it was not required to accept Lee’s assertions of inadequate investigation
(People v. Vera, supra, 122 Cal.App.4th at p. 979) nor, in our view, was it required to
elicit from defense counsel a response to every single point raised by Lee (see People v.
Turner (1992) 7 Cal.App.4th 1214, 1218-1219).
Lee says the trial court erroneously believed the scope of the Marsden inquiry was
limited to in-court matters. We disagree. Although the court quoted at length from
Justice Baxter’s concurring opinion in People v. Smith, supra, 6 Cal.4th at pages 697-
319.
706, the record clearly shows it denied the motion only after obtaining and considering
defense counsel’s explanations of his conduct. The court was not required to ignore its
own knowledge and observations of what went on at trial. (See People v. Abilez (2007)
41 Cal.4th 472, 488-489; People v. Bolin, supra, 18 Cal.4th at p. 347.)
Under the circumstances presented here, “‘we find no basis for concluding that the
trial court either failed to conduct a proper Marsden inquiry or abused its discretion in
declining to substitute counsel.’ [Citation.]” (People v. Smith, supra, 6 Cal.4th at p. 697,
fn. omitted.) Lee is entitled neither to reversal nor to remand for a new Marsden hearing.
VI
SENTENCING
Defendants contend a variety of sentencing errors occurred. In each instance, the
People appropriately concede the error.
The following errors require modification or correction:
 Johnson and Lee were sentenced on counts one, five, and seven, and Dixon
on counts five and seven, to seven years to life in prison for attempted murder, exclusive
of any enhancements.160 Because premeditation was neither charged nor found true,
however, the indeterminate terms must be stricken and sentence modified on each count
to a determinate term of seven years, doubled to 14 years in Dixon’s case, exclusive of
any enhancements. (§ 664, subd. (a).)
 The trial court ordered Dixon’s sentence on count two enhanced by five
years pursuant to section 667, subdivision (a), plus one year pursuant to section 667.5,
subdivision (b). Because both enhancements arose from the same prior offense, however,
only the five-year enhancement can stand. The one-year enhancement must be stricken.
(People v. Jones (1993) 5 Cal.4th 1142, 1153.)
160 Sentence was doubled in Dixon’s case due to his prior strike conviction.
320.
 As to Dixon, the trial court imposed separate five-year enhancements,
pursuant to section 667, subdivision (a), with respect to counts five and seven on the
assumption they were indeterminate terms. Modification of sentence on those counts,
ante, means separate serious felony enhancements can no longer be imposed. They must
be stricken. (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on another ground in
People v. Ewoldt, supra, 7 Cal.4th at p. 401.)
 The court ordered each defendant to pay victim restitution pursuant to
section 1202.4, subdivision (f). As to Dixon, the court clarified its intent that liability for
such restitution be joint and several among all three codefendants, but it neglected to do
so when sentencing Johnson and Lee. The sentencing minute orders and abstracts of
judgment for all three defendants should include the notation that victim restitution
liability is joint and several. (See, e.g., People v. Neely (2009) 176 Cal.App.4th 787, 800;
People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 & cases cited therein.)
 The abstract of judgment for Dixon’s indeterminate term correctly shows,
at line 6.d., imposition of a sentence of 50 years to life on count nine for conspiracy to
commit murder. At line 5., however, it incorrectly shows an additional term of life with
the possibility of parole on count nine. The abstract of judgment must be corrected to
remove the reference to count nine from line 5.
DISPOSITION
In People v. Corey Ray Johnson (Super. Ct. Kern County, 2009, No. BF122135A),
the verdict on count nine, insofar as it finds Johnson guilty of conspiracy to commit
robbery/violate section 211, is reversed, and the true findings on the overt acts alleged in
support thereof are vacated. Sentence on counts one, five, and seven is modified to a
determinate term of seven years in prison on each count, exclusive of any enhancements.
The trial court is directed to cause the sentencing minutes and abstract of judgment to
include the notation that liability for victim restitution imposed pursuant to section
1202.4, subdivision (f), is joint and several. As so modified, the judgment is affirmed.
321.
The trial court is directed to cause to be prepared an amended abstract of judgment
reflecting said modifications and corrections, and to transmit a certified copy of same to
the appropriate authorities.
In People v. Joseph Kevin Dixon (Super. Ct. Kern County, 2009,
No. BF122135B), the verdict on count nine, insofar as it finds Dixon guilty of conspiracy
to commit robbery/violate section 211, is reversed, and the true findings on the overt acts
alleged in support thereof are vacated. Sentence on counts five and seven is modified to
a determinate term of 14 years in prison (seven years doubled pursuant to the Three
Strikes law) on each count, exclusive of any enhancements. The one-year enhancement
imposed on count two pursuant to section 667.5, subdivision (b) is stricken. The five-
year enhancements imposed on counts five and seven pursuant to section 667,
subdivision (a) are stricken. The trial court is directed to cause the sentencing minutes
and abstract of judgment to include the notation that liability for victim restitution
imposed pursuant to section 1202.4, subdivision (f), is joint and several. As so modified,
the judgment is affirmed. The trial court is directed to cause to be prepared an amended
abstract of judgment reflecting said modifications and corrections, and deleting the
reference to count nine in line 5. of the indeterminate portion of said abstract, and to
transmit a certified copy of same to the appropriate authorities.
In People v. David Lee, Jr., (Super. Ct. Kern County, 2009, No. BF122135C), the
verdict on count nine, insofar as it finds Lee guilty of conspiracy to commit
robbery/violate section 211, is reversed, and the true findings on the overt acts alleged in
support thereof are vacated. Sentence on counts one, five, and seven is modified to a
determinate term of seven years in prison on each count, exclusive of any enhancements.
The trial court is directed to cause the sentencing minutes and abstract of judgment to
include the notation that liability for victim restitution imposed pursuant to section
1202.4, subdivision (f), is joint and several. As so modified, the judgment is affirmed.
The trial court is directed to cause to be prepared an amended abstract of judgment
322.
reflecting said modifications and corrections, and to transmit a certified copy of same to
the appropriate authorities.
_________________________
DETJEN, J.
WE CONCUR:
_______________________________
GOMES, Acting P.J.
_______________________________
POOCHIGIAN, J.
323.