Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County No. GA 069912 of Los Angeles. John P. Doyle, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant Derrick Dontae Carter.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant Richard Eugene Isham.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
Defendant Derrick Dontae Carter was convicted of attempted premeditated murder (count 1) and assault with a firearm (count 2). Allegations that both offenses were committed for the benefit of a criminal street gang, as well as allegations that a principal personally discharged a firearm causing great bodily injury (in connection with count 1) and that Carter personally used a firearm (in connection with count 2), were found true. Carter was tried jointly with Richard Eugene Isham, who was acquitted of the attempted murder count but convicted of assault with a firearm on an aiding and abetting theory, with a true finding on the gang enhancement.
Both defendants appeal. They claim (1) prosecutorial misconduct, in connection with the prosecutor’s statement in closing that “[t]he defendants have no evidence to prove their innocence”; (2) the instruction on flight from the crime scene (CALCRIM No. 372) contains a presumption of guilt that unconstitutionally lowers the prosecution’s burden of proof; (3) the admission of the prior statements of an accomplice, who testified but purported to remember nothing, violated the defendants’ Sixth Amendment confrontation rights; and (4) the trial court erred in admitting evidence of attempts by third parties to intimidate the victim. In addition, Carter contends (5) the trial court erred in failing to instruct on attempted voluntary manslaughter as a lesser included offense of the attempted murder charge; (6) the minimum parole eligibility date for his attempted premeditated murder conviction should be reduced from 15 years to seven years; and (7) he is entitled to one additional day of presentence credit. Isham asserts (8) the evidence was insufficient to support his conviction for assault with a firearm as an aider and abettor.
The respondent concedes Carter is entitled to an additional day of custody credit. We will so order, but affirm the judgment in all other respects.
FACTS
On May 13, 2006, the day before Mother’s Day, Christine B. drove to Charles White Park. Christine associated with two criminal street gangs, the Altadena Denver Lanes and the Pasadena Denver Lanes, who regularly congregated in the park. Both were “Blood” gangs and the park was considered Blood territory. Defendants Isham and Carter, both of whom were members of the Pasadena Denver Lanes, were at the park, as were Cedric Jolly and Cameron Kinney, who were members of the Altadena Denver Lanes.
Later that day, T.S. and R.V. (who were not gang members) were on their way to a party. One of them was wearing a blue shirt. As they walked through the park, someone yelled “soowhoop” (or “swoop” or “soo-woo”), a phrase used by Blood gang members to identify themselves. When T.S. and R.V. heard the yell, they began to run. According to Kinney, the Blood gang members thought the two boys were Crips (because one was wearing blue, a color associated with Crip gangs, and because they ran when they heard the “swoop” yell).
Jolly ran after the two boys, but returned to the park less than a minute later. Then, defendants and Kinney got into Christine’s car (with defendant Isham in the driver’s seat), and the three drove around looking for T.S. and R.V. They found the two boys walking near the corner of El Sereno Avenue and Woodbury Road. Defendant Isham stopped the car and defendant Carter got out. Carter approached the two boys, asked “[w]here you from, Blood?” and punched T.S. in the face. T.S. and R.V. ran, but the car followed them and met them at the corner. Isham got out of the driver’s seat and (according to R.V.) tripped T.S., causing him to fall to the ground. (T.S. himself said he simply slipped.)
After T.S. got up, defendant Carter shot him in the back, and the bullet lodged near T.S.’s spine. After the shooting, Isham ran away; Carter got back in the car and Kinney, who had moved to the driver’s seat, drove the car away from the scene. Later, Kinney told defendant Carter to get out of the car, and Kinney then drove the car back to the park and returned it to Christine.
At the end of May 2006, defendant Carter told his great aunt that he had shot someone in the back near Charles White Park around Mother’s Day and asked her for a ticket to Oregon. His great aunt called the police to confirm that a shooting had occurred and then made arrangements for the police to take Carter into custody. Carter was arrested during a pre-arranged traffic stop that occurred while the great aunt was driving defendant Carter (with his belongings) to the airport. In late July 2006, police interviewed Kinney, who provided much of the information just described.
In August 2007, both defendants were charged with a single count of attempted willful, deliberate, premeditated murder. (Pen. Code, §§ 187, subd. (a) & 664, subd. (a).) The information alleged the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and alleged three firearm enhancements: that a principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)); that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); and that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)). During the trial and without objection, the information was amended to add a second count, assault with a firearm (§ 245, subd. (a)(2)), with a gang enhancement and an allegation that defendant Carter personally used a firearm (§ 12022.5, subd. (a)). (The amended information also deleted the allegation that a principal personally used a firearm in connection with the attempted murder charge.)
Statutory references are to the Penal Code unless otherwise specified.
At the trial, in addition to the evidence described above, the prosecution presented testimony from Detective Joel Nebel as a gang expert. Nebel testified to the primary activities of the Pasadena Denver Lanes (murders, attempted murders, assaults with deadly weapons, robberies); the gang’s territory; their enemies (the Crip gangs); the history of violence between the Pasadena Denver Lanes and the Crip gangs; the “soowhoop” or “swoop” term used by the gang’s members to identify each other; the gang tattoos sported by defendants; and that Isham and Carter were members of the gang when the crime was committed. Nebel opined, in response to a hypothetical question based on the evidence adduced in this case, that the charged offenses were committed for the benefit of the gang.
Defendant Isham presented an alibi defense in the form of testimony from Joseph Earl. Earl, a longtime friend of Isham’s, was in prison at the time of the crime, but had telephoned S.P. (the mother of his son) from prison and had spoken to defendant Isham (who was at S.P.’s home) during the call. Earl remembered making the call on Mother’s Day because he wanted to wish S.P. a happy Mother’s Day. The court took judicial notice that in 2006, Mother’s Day occurred on Sunday, May 14.
Carter testified on his own behalf. He admitted the shooting, but said that Isham had been dropped off earlier, and a friend of Kinney’s named Zack was driving the car, with Kinney in the passenger seat and Carter in the back seat. When they saw T.S. and R.V., Zack ordered everyone out of the car, ran across the street and hit T.S. Carter, “not really knowing what... was happening, ” jumped out of the car, aimed his gun toward a wall and fired a shot, not meaning to hurt anyone, but “trying to scare the person.” Carter “didn’t know if [T.S.] had a gun.” Carter said he did not mean to hurt or kill T.S.; he told Detective Nebel he was alone because he did not want to implicate others; and he received most of his gang tattoos after he was placed in custody. Carter also said no one knew he had a gun (which he said he had bought that day for $150). Carter also presented testimony from two of his teachers, showing that he caused no disciplinary problems, was on the track team and did very well in his classes.
Defendant Isham gave surrebuttal testimony on his own behalf. He said he was passing through the park on the day of the crime to take a Mother’s Day present to S.P.’s house. Kinney gave him a ride in the front passenger seat of Christine’s car and Carter was in the back. Isham said he met Carter for the first time that day. Kinney dropped Isham off at the corner of Lincoln Avenue and Carlton Street, and he went to S.P.’s home and stayed there until after 8:00 p.m. (shortly after the crime was reported). While he was there, he spoke to Joseph Earl on the telephone. After he left, he encountered Christine and got into her car; while riding in the car, the police stopped the car and questioned Isham.
The jury returned verdicts finding Carter guilty on both charges and finding the gang allegations and firearm enhancements true. Isham was acquitted of the attempted murder count but convicted of assault with a firearm, with a true finding on the gang enhancement.
The court sentenced Carter on count 1 (staying imposition of sentence on count 2 under section 654) to life in prison with a minimum parole eligibility of 15 years (as a consequence of the section 186.22 gang allegation). On the firearm allegations, the court sentenced Carter to an additional consecutive term of 25 years to life under section 12022.53, subdivision (d). The court awarded Carter total presentence custody credits of 1, 036 days and made various other orders not at issue in this appeal.
The court sentenced Isham to the middle term of three years for the assault with a firearm (§ 245, subd. (a)(2)), with an additional term of five years consecutive for the gang enhancement under section 186.22, subdivision (b)(1)(B).
Both defendants filed timely appeals.
DISCUSSION
1. The prosecutorial misconduct claim
The Supreme Court has summarized the standards under which we evaluate a claim of prosecutorial misconduct.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
The defendant may not complain on appeal of the prosecutor’s misconduct unless he timely objected at trial “and also requested that the jury be admonished to disregard the perceived impropriety.” (People v. Thornton (2007) 41 Cal.4th 391, 454.) If the defendant objected, or if an objection would not have cured the harm, we ask whether the improper conduct was prejudicial, that is, whether it is reasonably probable a result more favorable to the defendant would have occurred if the prosecutor had refrained from the misconduct. (People v. Haskett (1982) 30 Cal.3d 841, 866.) When a prosecutorial misconduct claim is based on the prosecutor’s arguments to the jury, “we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument.” (People v. Woods (2006) 146 Cal.App.4th 106, 111.)
In this case, defendants contend there was prosecutorial misconduct in closing argument, with the prosecutor improperly suggesting that defendants “were obliged to prove their innocence through their testimony.” At the beginning of his closing argument, the prosecutor said this (after describing the crime and stating it was a gang crime):
“How do we know this? Even beyond the witnesses, that Carter and Isham told what was done, we know Pasadena Denver Lanes, the lies they put together on their behalf. The defendants have no evidence to prove their innocence. The court instructed you, if they put on false evidence and created alibis, you can use that to consider whether or not they are guilty of the crime. A good defense will explain that they didn’t do it. [¶] Why do we know they did it? One, rely on witnesses with [credibility]. It would convince you they were truthful. We know what happened. [T.S. and R.V.] told us what they went through. We know what – Christine... told us what happened. We know Cameron Kinney when he was under oath and talking with fellow gang members, what he told the police.” (Italics and boldface added.)
Then, after discussing the testimony of Christine, T.S., R.V. and Carter’s great aunt and the absence of any motivation for those witnesses to lie, the prosecutor returned to Isham and Carter – both of whom testified – and their motive to lie, observing that:
“If you lie, it is because you have to do it because the truth won’t set you free. [¶] If there was a truth that will show that Derrick Carter and Richard Isham didn’t commit the crime, they would have taken the stand and told it. The only reason they lied is because they needed to do it to get off.” (Italics and boldface added.)
Defendants point to the statement that “[t]he defendants have no evidence to prove their innocence, ” and correctly point out that, while a prosecutor “may comment that a defendant has not produced any evidence, he or she may not suggest that ‘a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1195-1196.)
We agree that the prosecutor should not have referred to defendants’ lack of evidence “to prove their innocence.” However, defendants forfeited the claim of prosecutorial misconduct by making no objection at trial. (People v. Thornton, supra, 41 Cal.4th at p. 454.) Assuming without deciding that the prosecutor’s statement was misconduct, it was not prejudicial. After the prosecutor’s argument, Carter’s counsel began her closing argument by observing that the prosecution had the burden of proof beyond a reasonable doubt. The jury was repeatedly instructed that it was the prosecution’s burden to prove defendants’ guilt beyond a reasonable doubt. In short, we see no reasonable probability of a result more favorable to defendants if the prosecutor had not made the comments at issue. (People v. Haskett, supra, 30 Cal.3d at p. 866.)
2. The instruction on flight from the crime scene (CALCRIM No. 372)
The jury was instructed with CALCRIM No. 372, as follows:
“If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
Defendants contend this instruction was improper because it “presumes the defendant’s guilt” and “is slanted in favor of the prosecution.” According to defendants, the language stating that flight immediately after the crime “may show that [defendant] was aware of his guilt” presumes the existence of defendant’s guilt, because the word “aware” implies knowledge gained through one’s own perceptions, and therefore “[t]he phrase ‘he was aware of his guilt’ leaves no room for a conclusion that he was not guilty.” Defendants contrast CALCRIM No. 372 with CALJIC No. 2.52, which did not use the phrase “aware of his guilt” and thus “left open the question whether the defendant was guilty....”
CALJIC No. 2.52 stated that flight “is not sufficient in itself to establish... guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
We cannot read CALCRIM No. 372 as defendants do, and we do not think any speaker of the English language would do so. Read as a whole, CALCRIM No. 372 says the same thing that CALJIC No. 2.52 said: flight from the crime scene is a factor that may be considered in determining a defendant’s guilt, but is not enough by itself to establish guilt. CALCRIM No. 372 expressly leaves the meaning of the defendant’s conduct up to the jury. In People v. Mendoza (2000) 24 Cal.4th 130, 180, the Supreme Court held that the flight instruction in CALJIC No. 2.52 does not violate due process: “ ‘A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citation.]’ [Citations.] This test permits a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt.” (Italics and boldface added.) That is precisely the import of CALCRIM No. 372, which instructs that flight immediately after the crime “may show that [defendant] was aware of his guilt, ” but that “it is up to you to decide the meaning and importance of that conduct.” In short, we find no impropriety in CALCRIM No. 372. (Accord, People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1159 [“we reject Rios’s arguments that CALCRIM No. 372 impermissibly presumes the existence of his guilt and lowers the prosecution’s burden of proof”].)
3. The admission of Cameron Kinney’s prior statements to the police
The prosecution called Cameron Kinney as a witness in its case-in-chief. Kinney was an uncooperative witness who purported to remember nothing of the circumstances of the charged offenses. He denied knowing defendants, denied knowing Christine, denied seeing defendants at the park, denied being a gang member, and denied knowing any members of the Pasadena or Altadena Denver Lanes. He testified he did not remember speaking to the police about the shooting and said he was intoxicated at the time of the interview. The prosecutor questioned Kinney about specific statements he made to the police, to all of which Kinney responded that he did not remember because he was intoxicated.
After Kinney denied knowing Christine or any members of the Altadena and Pasadena Denver Lanes, the prosecutor asked if he had talked to detectives about Christine and if he told the detectives that he and defendants got into Christine’s car, that they drove off looking for some Crips, and that they spotted the two individuals they were looking for, to all of which Kinney replied, “I do not remember. I was intoxicated.”
At this point, Carter’s counsel objected to the prosecutor’s line of questioning about Kinney’s prior statements to the police, stating at side bar that the prosecutor would bring in the investigating officer to impeach Kinney and the defense “will really never get an opportunity to cross-examine this witness, and I think that’s basically what Crawford v. Washington [(2004) 541 U.S. 36] states. How do we cross-examine this witness?” Isham’s counsel joined in the side bar argument, both counsel asserting the court should not allow the prosecutor to continue asking Kinney “these questions that are totally prejudicial...” and also not allow the prosecution to present the investigating officer to testify to Kinney’s prior inconsistent statements.
The trial court overruled the objections, and the prosecutor continued his questioning, asking Kinney if he told detectives (among other things) that, when they saw the individuals they were looking for, defendant Isham got out of the driver’s seat and defendant Carter got out of the rear seat of the car; that Carter punched one of the victims in the face; that Carter then shot one of the victims in the back; that he (Kinney) knew Isham, the one who was driving the car, as Tiny Black Blood; that when Carter and Isham got out of the vehicle, he (Kinney) moved over into the driver’s seat; that, after Carter got back in the car and Kinney realized Carter still had the gun and Kinney was afraid he was going to get stopped, he made Carter get out of the car. Kinney continued to answer, for example, “I do not remember. I don’t know. I plead the Fifth. I don’t know anything.”
The prosecutor also questioned Kinney about whether he was housed in custody with Carter after this incident, and whether he participated (with Carter) in an assault on a Crip gang member while in custody, to which Kinney responded, “I plead the 5th.” The prosecutor asked the court to hold Kinney in contempt if he continued to refuse to answer those questions, but the trial court declined to do so.
Carter’s counsel cross-examined Kinney, who continued to answer that he did not remember anything, and Isham’s counsel asked no questions. The prosecutor then presented Detective Nebel as a witness, and Nebel (in addition to his testimony as a gang expert) testified about his interview with Kinney, which occurred in July 2006, about two months after the shooting. He testified Kinney was not intoxicated and was coherent throughout the audiotaped interview. Nebel then testified to the substance of Kinney’s statements to the police, which confirmed the information described above in the prosecutor’s questions to Kinney. Kinney told Nebel he knew they were driving around looking for the two boys who had run away from Jolly and they were looking for them “to at least beat them up, ” because they believed they were Crips, and that when Isham and Carter got out of the car, Kinney got in the driver’s seat and repositioned the vehicle. Nebel testified Kinney told him Kinney “believed that he saw Derrick Carter with a handgun and thinks that he shot one of the boys, ” and that Carter was pointing the gun “towards one of the boys and towards his back, ” and that “the boy was actually on the ground” when he was shot.
Defendants assert that the admission of Kinney’s statements to the police violated their Sixth Amendment right to confront Kinney (and their Sixth and Fourteenth Amendment rights to due process) “because there was never an opportunity to cross-examine him.” Defendants are mistaken.
Defendants also claim that Nebel’s account of Kinney’s statements to him was inadmissible hearsay, but make no cogent argument suggesting why the statements should not be admissible as prior inconsistent statements, the basis upon which the trial court considered the testimony admissible. (See People v. Green (1971) 3 Cal.3d 981, 988-989 [normally testimony from a witness that he does not remember an event is not “inconsistent” with a prior statement by him describing the event, but “[i]nconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement”; the witness’s “deliberate evasion... in his trial testimony must be deemed to constitute an implied denial” so that his testimony was materially inconsistent with prior testimony and extrajudicial statements].)
Crawford v. Washington, supra, 541 U.S. 36, upon which defendants rely, established that the right to confrontation precludes the admission of extrajudicial testimonial statements of witnesses who are not available at trial, except where the defendant had a previous opportunity to cross-examine the witness. (Id. at p. 68.) Here, however, Kinney testified at trial. The defendants’ claim that Kinney was “essentially unavailable” for cross-examination because of his professed memory loss is without merit, as is clear from case precedents.
The point is explained in United States v. Owens (1988) 484 U.S. 554, 558-560 (Owens). There, the high court observed that it had previously noted (in California v. Green (1970) 399 U.S. 149, 168-169) the possibility that a witness’s memory loss “so affected the petitioner’s right to cross-examine as to violate the Confrontation Clause.” (Owens, supra, at p. 558.) In a concurring opinion in California v. Green, Justice Harlan stated he would have held that a witness’s inability to “recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence.” (California v. Green, at p. 188.) In Owens, the high court “agree[d] with the answer suggested 18 years ago by Justice Harlan, ” observing that the confrontation clause “ ‘guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” ’ ” (Owens, supra, at p. 559.)
In short, as Owens concluded, “The weapons available to impugn the witness’ statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.” (Owens, supra, 484 U.S. at p. 560.) The Owens principles have been applied in our state courts. (See People v. Perez (2000) 82 Cal.App.4th 760, 766 [“[e]ven though [the witness] professed total inability to recall the crime or her statements to police, and this narrowed the practical scope of cross-examination, [the witness’s] presence at trial as a testifying witness gave the jury the opportunity to assess her demeanor and whether any credibility should be given to her testimony or her prior statements”; “[t]his was all the constitutional right to confrontation required”]; see People v. Gunder (2007) 151 Cal.App.4th 412, 420 [“[t]he witness feigning memory loss is in fact subject to cross-examination, providing a jury with the opportunity to see the demeanor and assess the credibility of the witness, which in turn gives it a basis for judging the prior hearsay statement’s credibility”].) No violation of defendants’ Sixth Amendment confrontation rights occurred.
4. Admission of evidence of third party attempts to intimidate the victim
T.S., the victim of the shooting, testified at the preliminary hearing and at trial. At the preliminary hearing, T.S. testified that two people got out of the car; they were both Black males; the driver got out of the car and hit him; the person who struck him “asked me where I was from, ” but he could not respond before the person hit him; and the second person came from the passenger side of the vehicle. At trial, T.S. did not remember how many people got out of the car and did not “see where anyone got out of the car”; he said that one person approached him and started talking to him in a friendly manner before hitting him; and he recognized no “gang type words or slogans.” T.S. testified that the person who approached him did not say, “Where you from, Blood?” and that the car “didn’t come next to me.” He said he did not see the driver get out of the car and denied telling the police he believed the person who shot him was the driver. He admitted that at the preliminary hearing, he said he saw two people get out of the back seat of the car.
Deputy Sheriff David VanGorder subsequently testified that he interviewed T.S. at the hospital after the incident, and T.S. told him that the man who punched him in the face asked him, “Where you from, Blood?”
Defense counsel objected when the prosecutor then asked whether T.S. had had any threats since the shooting. At a sidebar, the prosecutor stated his belief that T.S. was “somewhat recanting” and the trial court observed that, “[b]ased on my understanding of offers of proof and... review of the prelim[inary] transcript, it does appear he is recanting.”
After further discussion, the court decided to hold a brief hearing outside the presence of the jury at which the parties could question T.S. about the threats. T.S. described four incidents, three before and one after the July 2007 preliminary hearing. In these incidents, different people (not the defendants, and more than one person in each case) approached him and told him not to go to court. In one incident, two males approached him, asked him if he was “the dude that got shot, ” and then started chasing him, but he got away. T.S. testified that “I am never going to be afraid, ” and when defendant Carter’s counsel asked him, “[I]f you testify that you don’t remember to certain events, is it because it is so far away or is it because you are afraid?” T.S. answered, “Is it [sic] so far away.”
After T.S.’s testimony, the court observed that it was “completely comfortable with [admitting testimony about] two of these four incidents” and permitted the prosecutor to ask about two of them. The testimony consisted of the fact that three or four people T.S. did not know approached him at a park, and on another occasion two people approached him at the movies, and told him not to come to court. T.S. also testified he did not want to be at the trial or the preliminary hearing, and attended “[b]ecause my Mom said I had to, ” and that, “[a]s a result[] of [his] contacts with people, since the incident” he had to move out of the area.
Defendants argue the trial court erred in admitting evidence of attempts by third parties to intimidate the victim because the evidence was “calculated to bias the jury” and was more prejudicial than probative. (Evid. Code, § 352.) They say the evidence was “irrelevant to [T.S.’s] credibility” because both threats occurred before the preliminary hearing and “could not logically have caused him to change his testimony....” We see no abuse of the trial court’s discretion.
First, the evidence was relevant to T.S.’s credibility no matter when the threats occurred; as respondent points out, T.S. could have determined, after further reflection, that it behooved him to provide fewer incriminating details at a trial that could end in conviction of the defendants. (Cf. People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142 [“ ‘[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible’ ”; evidence that a witness feared retaliation for testifying against the defendant “was offered for the nonhearsay purpose of explaining inconsistencies in portions of her testimony”].)
Second, the trial court has broad discretion under Evidence Code section 352 to assess “whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We cannot disturb the exercise of that discretion 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.]’ ” (Ibid.)
Here, there has been no showing that the court’s ruling was arbitrary, capricious or absurd. The evidence was probative on the issue of T.S.’s credibility, explaining the partial recanting of details in his earlier testimony. Moreover, the court refused to allow testimony on all four threat incidents, demonstrating a balancing of probative value against undue prejudice. In addition, the court read a stipulation of the parties to the jury, stating that: “[Y]ou have heard testimony that threats were made to T.S.... to not come to court. You are not to infer that either defendant was in any way involved or responsible for those threats. This testimony was offered for the limited purpose of showing [T.S.’s] state of mind.”
In short, defendants have made no showing the court exercised its discretion in a manner resulting in a “manifest miscarriage of justice” (People v. Rodrigues, supra, 8 Cal.4th at p. 1124); on the contrary, the court’s exercise of discretion was entirely proper.
5. The failure to instruct on attempted voluntary manslaughter
Defendant Carter argues that the trial court erred in failing to instruct on attempted voluntary manslaughter as a lesser included offense of the attempted murder charge. We disagree.
“If a person kills or attempts to kill in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter or attempted voluntary manslaughter, not murder or attempted murder.” (People v. McCoy (2001) 25 Cal.4th 1111, 1116.) This principle applies if the defendant acted “in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury....” (People v. Koontz (2002) 27 Cal.4th 1041, 1086.)
“In a murder case, trial courts are obligated to instruct the jury on defenses supported by substantial evidence that could lead to conviction of the lesser included offense of voluntary manslaughter, even where the defendant objects, or is not, as a matter of trial strategy, relying on such a defense.” (People v. Moye (2009) 47 Cal.4th 537, 541.) However, the Supreme Court has “cautioned” that imperfect self-defense is a narrow doctrine and “will apply only when the defendant has an actual belief in the need for self-defense and only when the defendant fears immediate harm that ‘ “ ‘must be instantly dealt with.’ ” ’ [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 883.) A trial court’s duty to instruct on this theory “arises ‘whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.’ [Citation.]” (Ibid.) “ ‘[T]he existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is “substantial enough to merit consideration” by the jury. [Citations.] “Substantial evidence” in this context is ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]’ ” that the lesser offense, but not the greater, was committed. [Citations.]’ [Citation.]” (People v. Moye, supra, at p. 553.)
If a trial court has erred in failing to give such an instruction, the error is reviewed under the standard stated in People v. Watson (1956) 46 Cal.2d 818, 836, that is, the error is harmless if, “[u]pon examining the entire cause... including the evidence... it is not ‘reasonably probable’ defendant would have obtained a ‘more favorable’ outcome had the instructional error not occurred.” (People v. Moye, supra, 47 Cal.4th at p. 541, citation omitted.)
Here, defendant Carter claims that his testimony amounted to substantial evidence that would support an instruction on voluntary manslaughter based on imperfect self-defense. On direct examination, Carter testified that someone named Zack was driving the car, and it was Zack who got out of the car, ran across the street and hit T.S. in the face. Then, Carter “jumped out the car and I shot but I wasn’t meaning to hurt anyone.” Carter continued: “I shot. I was aiming I aimed down to the wall and I shot and I hit him and I ran.” Carter testified he did not mean to hurt or to kill T.S.
On cross-examination by Isham’s counsel, Carter testified that Zack “hit the dude. Me not thinking, I was aiming down. I shot one time, not to be killing the person. I shot one time and the bullet hit him. So he fell. I had to have hit him and I panicked. I went to the car where [Kinney] was at. I jumped in the car and [Kinney] drive back.”
On cross-examination by the prosecutor, these exchanges occurred:
“Q. He [Zack] punched one of the boys?
“A. Yes.
“Q. How many times?
“A. Once.
“Q. And then what happened?
“A. The dude like stumbled and fell and he turned. That is when I got
“Q. He was trying to get away when you shot, right?
“A. I really can’t say. I don’t know. I didn’t know if he had a gun, I don’t know what, I was trying to scare the person, not no [sic] hurting them. That is why only one shot fired. It wasn’t aiming at his head or shoulder or anywhere that can hurt something. I aimed down towards the wall to scare him.
“Q. He was already scared, he was running away, right?
“A. From the distance I was at, I can’t say, sir. [¶]... [¶]
“Q. How far from the car did you get before you fired the shot?
“A. I can’t really say. In the midst of the moment, it is all in this heat that this happened.
“Q. When you say this heat, what emotions were going through you at the time you fired the shot?
“A. Adrenalin[e], fear, a lot of fear.
“Q. Why was there adrenalin[e]?
“A. I didn’t know what was happening. It was like a rush, what is going on.
“Q. Why was there a fear?
“A. I don’t know.
“Q. You thought they might have a gun; is that right?
“A. I don’t know. I don’t get up and say, hey, do you have anything in your pocket.
“Q. What ran through your mind they might have a gun?
“A. I don’t know. I was trying to scare them and keep them away.
“Q. Your friend would be in real danger if they had a gun?
“A. You can say that.
“Q. You were trying to save your friend, right?
“A. You could say that.” [¶]... [¶]
“Q Now, where was the other boy at that time you fired the shot that hit [T.S.]?
“A. He was like low key like running back[w]ards, like in a back peddle [sic]. Not my friend but Zack.
“Q You were still running or did you stop at the time he [sic] fired the shot?
“A. I stopped in a panic state of mind.
“Q. So you can aim?
“A. I panicked.
“Q. All I am asking, at time you fired the shot, were you still running towards your friend when you saved him or were you still firing the shot?
“A. I was running when I shot. I panicked. I don’t know what happened.
“Q. How did you hold the gun when you shot?
“A. Like this.”
Carter asserts that, based on this evidence, a reasonable jury could conclude that Carter “believed that [T.S. and R.V.] were armed and that they had turned to face him in order to shoot him.” We think not. At no time did Carter testify that he believed he was “in imminent danger of death or great bodily injury” (People v. Koontz, supra, 27 Cal.4th at p. 1086) or anything to that effect. “From the distance [he] was at, [he couldn’t] say” whether T.S. was running away or not. He said he did not know if he thought they might have a gun, and he did not know “[w]hy [there was] a fear.” Indeed, he testified that he was not aiming “anywhere that can hurt something” but “aimed down towards the wall to scare him, ” an approach inconsistent with someone who believes he is in imminent danger of death or great bodily injury.
In short, nothing in Carter’s testimony suggests he actually thought the victims had a gun; at best he “[didn’t] know.” Nor did he testify that he “fear[ed] immediate harm that ‘ “ ‘must be instantly dealt with, ’ ” ’ ” but only that he had a “lot of fear” and did not know why. (See People v. Rogers, supra, 39 Cal.4th at p. 884.) No jury “composed of reasonable persons” (People v. Moye, supra, 47 Cal.4th at p. 553) could reasonably conclude from this evidence that Carter actually thought he was in imminent danger of death or great bodily injury. (See People v. Rogers, supra, at p. 884 [“defendant himself testified only that he felt fear and a need for protection”; “[h]e did not state what he feared and certainly never testified he feared his life was in danger or that he would suffer great bodily injury”].) Accordingly, the court was under no duty to instruct on attempted voluntary manslaughter based on unreasonable self-defense.
6. Carter’s minimum parole eligibility date
Defendant Carter argues that the minimum parole eligibility date for his attempted premeditated murder conviction should be reduced from 15 years to seven years. We disagree.
The court sentenced Carter to life in prison for attempted premeditated murder (§ 664, subd. (a)). Because the crime was committed for the benefit of a criminal street gang, the court ordered Carter serve a minimum of 15 years in prison before being eligible for parole, as required by section 186.22, subdivision (b)(5). And, because the jury found that, in the commission of the attempted murder, a principal personally and intentionally discharged a firearm which caused great bodily injury to T.S., the court imposed an additional consecutive term of 25 years to life under section 12022.53, subdivision (d).
Under section 186.22, subdivision (b)(5), with certain inapplicable exceptions, a person who violates subdivision (b) – that is, is convicted of a crime committed for the benefit of a criminal street gang – “in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.”
Section 12022.53, subdivision (d) provides that: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including attempted murder]... personally and intentionally discharges a firearm and proximately causes great bodily injury... to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
Carter asserts the trial court should not have imposed the 15-year minimum parole eligibility specified by the gang enhancement statute, reasoning as follows:
1. When the jury found Carter guilty of attempted murder, it also found that a principal in the commission of the attempted murder personally and intentionally discharged a firearm causing great bodily injury, but did not find (and the verdict forms did not ask it to find) that Carter himself personally used a firearm in the commission of the attempted murder. 2. Similarly, the information did not allege, with respect to the attempted murder charge, that Carter himself personally and intentionally discharged a firearm, but only that a principal did so. 3. Section 12022.53, subdivision (e)(2) of the firearm enhancement statute (section 12022.53(e)(2)) mandates that an enhancement for participation in a criminal street gang – including the 15-year minimum parole eligibility date – “shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivisionunless the person personally used or personally discharged a firearm in the commission of the offense.”
Section 12022.53, subdivision (e) provides in its entirety: “(1) The [firearm] enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22 [committed the crime for the benefit of a gang]. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d) [personally used a firearm, or personally and intentionally discharged a firearm, or did the latter and caused great bodily injury]. [¶] (2) An enhancement for participation in a criminal street gang... shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.”
In short, because the information did not allege and the jury did not find (in connection with the attempted murder charge) that Carter personally used a firearm (but only that a principal did so), the court could not impose both the 15-year parole eligibility and the 25 years to life firearm enhancement under section 12022.53, subdivision (d). Carter’s contention finds support, at first glance, in the principles announced in People v. Brookfield (2009) 47 Cal.4th 583 (Brookfield) and applied in People v. Gonzalez (2010) 180 Cal.App.4th 1420 (Gonzalez). But the circumstances in this case dictate a contrary conclusion, because the jury did find that Carter personally used a firearm in connection with his conviction for assault with a firearm on T.S.
In Brookfield, the Supreme Court interpreted section 12022.53(e)(2), in a case in which the defendant was convicted of a gang-related crime “in the commission of which he did not personally discharge a firearm, but a companion did.” (Brookfield, supra, 47 Cal.4th at p. 586.) The trial court imposed a life sentence under section 186.22, subdivision (b)(4) – which required an indeterminate life sentence for certain crimes committed for the benefit of a gang, including the defendant’s crime of shooting at an inhabited dwelling – and a 10-year firearm enhancement under section 12022.53, subdivisions (b) and (e)(1), because a principal in the crimes had used a firearm. (Brookfield, supra, at p. 587.) The court concluded it was improper to impose both and described the effect of section 12022.53, subdivision (e)(1):
“Ordinarily, section 12022.53’s sentence enhancements apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute’s additional punishments apply even if, as in this case, the defendant did not personally use or discharge a firearm but another principal did. Section 12022.53(e)(2), however, limits the effect of subdivision (e)(1). A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an ‘enhancement for participation in a criminal street gang... in addition to an enhancement imposed pursuant to’ section 12022.53. (§ 12022.53(e)(2).)” (Brookfield, supra, 47 Cal.4th at p. 590.)
Gonzalez involved charges against two defendants very like the charges in this case. In Gonzalez, both defendants were convicted of attempted murder (one premeditated, the other nonpremeditated) and assault with a semiautomatic firearm, and associated gang and firearm enhancements were found true. As here, the defendant who was convicted of attempted premeditated murder was sentenced to state prison for life with a 15-year minimum parole eligibility and, as here, the court imposed an additional term of 25 years to life on the firearm allegation (that a principal personally and intentionally discharged a firearm causing great bodily injury). This court, after observing that there “was no finding that either defendant personally used a firearm, ” followed Brookfield and held that the trial court erred in imposing the gang statute’s 15-year minimum parole eligibility period in addition to the 25 years to life firearm enhancement. (Gonzalez, supra, 180 Cal.App.4th at pp. 1424, 1427.)
This case presents a critical difference from the circumstances in Brookfield and Gonzalez. In both of those cases, there was no finding that the defendant personally used a firearm. In Brookfield, the court stated that the defendant was convicted of a gang-related crime “in the commission of which he did not personally discharge a firearm, but a companion did.” (Brookfield, supra, 47 Cal.4th at p. 586.) In Gonzalez, there was conflicting evidence on which defendant was the shooter, and the court observed that “[t]he jury here did not find Ortiz personally used a gun....” (Gonzalez, supra, 180 Cal.App.4th at p. 1424.)
By contrast, in this case, although the verdict convicting Carter of the attempted murder of T.S. did not include a finding Carter personally used or discharged a firearm (but only that a principal did so), the verdict convicting Carter of assault with a firearm did: the jury found that Carter personally used a firearm in the commission of that offense. (The amended information also alleged that Carter personally used a firearm in the commission of the assault on T.S.) The presence of the jury’s finding that Carter personally used a firearm in the assault on T.S. – not to mention all the evidence in the case, including Carter’s own testimony that he fired the gun and hit T.S. – convinces us that the rule applied in Brookfield and Gonzalez has no application in this case.
Carter insists that the language of section 12022.53(e)(2) does not permit our conclusion. But that section (see fn. 11, ante) merely says that an enhancement for participation in a criminal street gang shall not be imposed in addition to the section 12022.53, subdivision (e)(1) firearm enhancement “unless the person personally used or personally discharged a firearm in the commission of the offense.” (§ 12022.53(e)(2).) There is no doubt Carter did so; the same conduct formed the basis for both the attempted murder and the assault with a firearm (offenses for which Carter cannot be punished separately). (§ 654.) As Brookfield observed, the Legislature sought to draw a distinction between offenders who personally used firearms in gang-related felonies and those who were merely accomplices to such offenses. (Brookfield, supra, 47 Cal.4th at p. 594.) Consequently, “A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53.” (Id. at p. 590.) Where, as here, the jury found defendant personally used a firearm to shoot T.S., for which the jury convicted him of attempted murder, we see no error in sentencing Carter accordingly.
7. Carter’s presentence custody credits
Defendant Carter was arrested on June 2, 2006, and sentenced on November 19, 2008. He was awarded total credits for time served of 1, 036 days (901 days actual and 135 days local conduct credit). He argues, and respondent correctly concedes, that he spent 902 days in custody, rather than 901, and is entitled to one additional day of credit.
8. Isham’s claim of insufficient evidence
Isham asserts the evidence was insufficient to support his conviction for assault with a firearm as an aider and abettor. His claim has two elements: first, that there was no evidence Isham knew of Carter’s purpose to assault T.S. with a firearm (specifically, no evidence Isham knew Carter had a gun or knew he intended to shoot someone); and second, that the only testimony implicating Isham in the assault was from Kinney, an accomplice whose testimony was insufficiently corroborated. We disagree on both counts.
The principles governing Isham’s contentions are these.
First, we review a claim of insufficient evidence by determining whether, viewing the whole record in the light most favorable to the prosecution, the record discloses substantial evidence – evidence which is reasonable, credible, and of solid value – from which a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)
Second, a person aids and abets the commission of a crime when he, “ ‘ “acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” ’ ” (People v. Jurado (2006) 38 Cal.4th 72, 136.) Whether the defendant aided and abetted a crime is a question of fact. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Third, “[a] conviction can be based on an accomplice’s testimony only if other evidence tending to connect the defendant with the commission of the offense corroborates that testimony. [Citation.] The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice’s testimony, tend to connect the defendant with the crime. [Citation.] The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 985-986.)
We turn first to Isham’s claim there was no evidence he knew of Carter’s gun or of his purpose to shoot the victim with it. But Isham’s knowledge of Carter’s unlawful purpose (and his intent to facilitate it) may readily be inferred from the circumstances. There was evidence Isham, Carter and Kinney were members of a Blood gang, evidence of the enmity between Bloods and Crips, evidence that the primary activities of Isham’s gang included shootings and assaults with deadly weapons, evidence that Isham was in the car with Carter and Kinney, evidence they were looking for the boys they thought were Crips, evidence that Isham was driving the car, evidence from Deputy VanGorder that the victim T.S. told him that the car pulled up next to him prior to the shooting, evidence that Isham and Carter both got out of the car, and evidence (from R.V.) that the person who got out of the driver’s seat tripped T.S. just before he was shot. In short, while there was no direct evidence that Isham knew Carter had the gun, the evidence of the surrounding circumstances and of Isham’s participation in the events leading up to the shooting constituted sufficient circumstantial evidence from which jurors could reasonably infer that Isham knew of Carter’s unlawful purpose – to assault the boys they thought were Crips with a firearm – and intended to and did facilitate that assault.
Isham also claims that Kinney’s testimony and hearsay statements to Detective Nebel (see part 3, ante) were “the sole evidence of [Isham’s] guilt, ” and this evidence was necessarily insufficient because Kinney was an accomplice. While Kinney was an accomplice, his evidence was adequately corroborated.
As we have seen, Kinney’s statements established that he, Isham and Carter were driving around looking for the two boys who had run away from Jolly and they were looking for them “to at least beat them up, ” because they believed they were Crips, and that when Isham and Carter got out of the car, Kinney got in the driver’s seat and repositioned the vehicle. Isham’s position is that because no one else identified him as being at the scene of the assault, Kinney’s statements were insufficiently corroborated. But Kinney’s statements did not have to be corroborated in every particular; the corroborating evidence “may be circumstantial or slight and entitled to little consideration when standing alone....” (People v. McDermott, supra, 28 Cal.4th at pp. 985-986.) The requirement is that the corroborating evidence “must tend to implicate the defendant by relating to an act that is an element of the crime” and “must, without aid from the accomplice’s testimony, tend to connect the defendant with the crime.” (Ibid.)
Here, Christine testified that, after the “soo-woo” call, the two boys walking in the street (one wearing a blue shirt) took off running, and Jolly ran after them. She testified that Carter, Isham and Kinney got into her car, and “[thought] it was after” Jolly came back but she was not certain. She testified Isham drove the car away from where it was parked, and when the car came back, “five minutes or so” after Isham, Carter and Kinney drove off, only Kinney was in the car. Further, R.V. testified that he saw the driver get out of the car and trip T.S.: “We was running.... I was in the front and [T.S.] was behind. He fell in the street and I picked him up and we kept running. I was like petrified and the driver hopped out and tripped him [T.S.].”
The prosecutor then asked R.V.: “I am trying to make sure I get the sequence – a person from the rear [of the car] got out, asked a question and punched [T.S.] and you guys started running and then the driver got out and came after you? [¶] A. No. He got up. The car had pulled up and he got out and then he tripped [T.S.] and then I heard a bang and I turned around and everybody had like left.” On cross-examination, R.V. was questioned about seeing two people get out of the car. R.V. testified: “I said when the car was stopped, the first time we seen the car, a guy in the back seat got out. That is one dude and the car came up. The driver got out. That is two dudes. [¶]... [¶] Q. The first time it was the back? [¶] A. Yes, and then the driver. [¶] Q. What, if anything, did you see that person do? [¶] A. He just got out of the car and tripped [T.S.]”
The testimony from Christine and R.V., considered together, “reasonably tend[ed] to connect the defendant with the commission of the crime” (People v. McDermott, supra, 28 Cal.4th at p. 986), and we accordingly conclude Kinney’s testimony was adequately corroborated.
In sum, viewing the whole record in the light most favorable to the prosecution, a reasonable trier of fact could have found that Isham aided and abetted Carter’s assault with a firearm beyond a reasonable doubt.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment in the case of Derrick Dontae Carter reflecting total presentence custody credits of 1, 037 days, consisting of 902 days of actual custody credits and 135 days of local conduct credits, and to transmit a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.