Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA315610, Robert J. Perry, Judge. Affirmed with modifications.
Coker and Associates and Robbin M. Coker for Defendant and Appellant Kyle Macoy David.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Charles Block.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendants, Kyle Macoy David and Charles Block, appeal from their convictions for the murder of Kalbert Kauo. Mr. David was convicted of second degree murder. (Pen.Code, § 187, subd. (a).) The jurors further found Mr. David personally discharged a firearm causing death. Additionally as to Mr. David, the jury found a principal personally discharged a firearm causing death. (§ 12022.53, subds. (d) and (e)(1).) Mr. Block was convicted of first degree murder (§ 187, subd. (a)) and conspiracy to commit murder. (§ 182, subd. (a)(1).) As to both of Mr. Block’s convictions, the jurors also found a principal personally discharged a firearm causing death and the murder was committed for the benefit of a criminal street gang. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) and (e)(1).) The trial court also found that Mr. Block was previously convicted of three serious felonies. (§§ 667, subd. (a)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
Both defendants were originally tried together. As set forth above, the jury found Mr. David guilty of second degree murder and returned the firearm use findings. However, the jury was unable to reach a verdict as to Mr. Block and a mistrial was declared on January 29, 2008, as to him. Mr. Block was subsequently retried and convicted as noted above on March 27, 2008.
Mr. David argues the trial court improperly: denied his motion based on improper use of peremptory challenges; denied Mr. Block’s severance motion; replaced a sitting juror with an alternate; failed to instruct the jury to begin deliberations anew when the alternate juror was seated; and sentenced him to 40 years to life. Mr. Block argues that the trial court improperly: refused to grant him a separate trial; allowed Mr. David to take the stand during the retrial; and failed to instruct the jury that Jennifer Fajota and Attawut Rhahamadprasert were accomplices as a matter of law. The Attorney General argues an additional court security fee should have been imposed and the section 186.22(b)(1)(c) enhancement should have been stricken as to Mr. Block. We affirm with modifications.
II. FACTUAL BACKGROUND
A. Evidence Presented at Joint Trial
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Mr. Rhahamadprasert was a member of a local Asian gang in December 2006. Both defendants were also members of that gang. Mr. Block was the leader of the gang. Mr. Block’s half-brother, Mr. Kauo, Mr. David’s twin brother, Casey, Raymond Kim, Ray Macoy, Anthony Bishop, and Angelo Quintas were also members of the local gang. Mr. Kim was David’s cousin. Mr. Block and Mr. Kauo had guns. Casey had a shotgun. After Mr. Block was released from prison, the members of the Asian gang joined forces with a regional Latino gang. Mr. Block told his fellow gang members, “Either you’re riding with me or you’re not.” Mr. Rhahamadpasert understood that to mean Mr. Block wanted the local gang to associate with the Latino gang. Approximately four or five months prior to December 2006, Mr. Block spoke to Mr. Rhahamadpasert about the affiliation with the Latino gang. Mr. Rhahamadpasert testified, “He always said you not riding with me, then you and your family and your homies will be in danger too.” Although the local gang had no specific enemies, they defended their territory against anyone who did something bad by fighting or exchanging gunfire. The local gang frequented a house at 112 South Mariposa Avenue where they used methamphetamine. The local gang “tagged” the house with their gang signs. The gang was also involved in stealing mail to obtain credit cards.
For purposes of clarity and out of no disrespect, Casey David will be referred to as “Casey.” Kyle David will be referred to as Mr. David.
Ms. Fajota, Mr. Block’s fiancé, testified under a grant of immunity. Prior to December 28, 2006, Ms. Fajota lived with her children, Mr. Block, and Mr. Kauo at 5744 North Laurel Canyon Boulevard in North Hollywood. Mr. Kauo left from time to time. On December 28, 2006, Mr. Kauo, Helen Chung and Raymond Kim visited Ms. Fajota’s apartment. Ms. Fajota was about to leave with her children to meet Mr. Block in Thousand Oaks. Mr. Kauo told Ms. Fajota that he wanted to pick up some of his clothes. Ms. Fajota gave Mr. Kauo the keys to her apartment. Mr. Kim returned the keys to her. When Ms. Fajota left, Mr. Kauo, Ms. Chung and Mr. Kim were in the apartment.
Ms. Fajota and her four children went to the home of Tina Molina and Bryan Johnston in Thousand Oaks. Ms. Fajota later telephoned her apartment. Mr. Block answered the phone. Mr. Block wondered where Ms. Fajota was and what happened to her apartment. Mr. Block angrily asked, “Who the F was here?” Mr. Block said the apartment was “tagged” with the gang monikers of Mr. Kauo and others. Ms. Fajota told Mr. Block that Mr. Kauo, Mr. Kim and Ms. Chung had been at the apartment. Thereafter, Mr. Block drove to Thousand Oaks. Mr. Block and Ms. Fajota drove back to her apartment to look for Mr. Kauo. After securing her apartment, Mr. Block and Ms. Fajota drove to the Burbank residence of Mr. David and Casey. Mr. Block was very angry. Mr. Block asked Ms. Fajota if she was sleeping with Mr. Kauo. Ms. Fajota responded, “No.”
Before arriving in Burbank, Mr. Block telephoned Mr. David. Mr. David placed his cellular telephone on speaker mode. This allowed Mr. Rhahamadpasert and Casey to hear the conversation. Mr. Block said that Mr. Kauo “Got to go” and “Green light on [Mr. Kauo].” Casey heard Mr. Block say: “If [they] didn’t take out [Mr. Kauo], out of the picture, he would [] kill [their] families, the rest of the party’s families.” Mr. Rhahamadpasert understood that to mean they should “take him out;” i.e. kill Mr. Kauo. Mr. Rhahamadpasert spoke to Mr. David. Mr. David was asked if he was sure of the directions they had heard over the telephone. Mr. David said, “We just got to do what we got to do.” Casey contacted Mr. Macoy and Mr. Bishop. Casey told Mr. Bishop, “There’s been a green light put out on [Mr. Kauo].” Casey told Mr. Bishop that Mr. Block’s house was trashed by someone suspected to be Mr. Kauo. Mr. Bishop was directed to drive to Casey’s house. Mr. Bishop said he was busy and did not want a part in their plan. Ten minutes later, Casey called Mr. Bishop again. Mr. Bishop was ordered to drive to Casey’s house. Mr. Bishop again refused. Later Mr. Bishop received a call from Mr. Macoy. Mr. Bishop then went to Casey’s home with Mr. Rhahamadpasert. Casey took out a shotgun.
Mr. Block and Ms. Fajota arrived at the David residence at approximately 1:30 or 2 p.m. Mr. David, Casey, Mr. Macoy, Mr. Bishop and Mr. Rhahamadpasert met Mr. Block in the driveway. Mr. Block said: “I can’t believe I have to do this. I can’t believe my own brother would do this to me in my own house.” Mr. Rhahamadpasert explained he had to complete his community service. Also, Mr. Rhahamadpasert’s father had to be picked up from work. Mr. Block told Mr. Rhahamadpasert to go ahead and leave. Mr. Rhahamadpasert then drove away. Thereafter, Mr. David, Casey, Mr. Macoy, Mr. Rhahamadpasert, Mr. Block and Ms. Fajota drove away in two cars. Mr. Block, Mr. David and Ms. Fajota drove in a van together. Mr. Rhahamadpasert understood that he was supposed to have participated in the killing. The other two cars were driven to the home of Mr. Kim in Torrance, where Mr. Kauo was believed to be staying. En route, Mr. Block told Ms. Fajota to get out a gun. When they arrived at Mr. Kim’s home, no one was present. Casey locked his keys in his car. Mr. Block, Mr. David and Ms. Fajota drove to the “Mariposa” house in Ms. Fajota’s van. Mr. Block ordered Mr. Bishop, Mr. Macoy and Casey to remain at the Torrance address to await assistance for unlocking the car and then drive to the Mariposa house.
When, Mr. David, Mr. Block and Ms. Fajota arrived at the Mariposa house, Mr. Kauo was playing cards there. Mr. Block asked Mr. Kauo to step outside. Mr. Block and Mr. Kauo talked and hugged one another. Mr. Block kissed Mr. Kauo. Mr. Kauo looked at Ms. Fajota and mouthed, “I’m sorry.” Ms. Fajota and Mr. Block then left for her apartment, where they began to clean up the damage. Mr. David remained behind. When Casey, Mr. Macoy and Mr. Bishop finally arrived at the Mariposa house, Mr. David was in the driveway. Mr. David was dressed in black with a bandanna on his neck and a beanie over his head. Mr. David told Mr. Macoy and Mr. Bishop to go inside and speak to Mr. Kauo. Mr. Kauo was to be told that the twins wanted to talk to him outside. Casey remained in his car. Mr. Kauo, Ms. Chung and two older men were in a bedroom of the house playing cards. Mr. Macoy asked where Mr. Kim was. Mr. Kauo said Mr. Kim was sleeping in another room. Mr. Macoy spoke to Mr. Kauo. Mr. Kauo was told the twins wanted to speak with him. Mr. Kauo responded, “After this card game.” Mr. Bishop asked Mr. Kauo for a cigarette. Mr. Bishop stepped out of the house, while Mr. Macoy remained inside.
Mr. Bishop walked outside of the house. There Mr. David placed a bandanna over his mouth and nose. Mr. David pulled a.9 millimeter gun from his front waistband. Mr. Bishop had seen the same gun in Mr. Block’s hand a month earlier. Mr. Bishop saw Mr. Kauo through the window. Mr. Kauo walked into the hallway. Mr. Bishop saw Mr. David raise the gun in his right hand and aim it at Mr. Kauo’s back. Mr. David pulled the trigger, but the gun did not fire. Mr. Kauo turned around with a shocked look on his face. Mr. Kauo reached for the gun. As Mr. David and Mr. Kauo struggled, the gun fired, striking Mr. Kauo in the stomach. Mr. Kauo turned and ran toward the bedroom where he had been playing cards. Mr. David ran after him. Mr. Bishop lost sight of the two men, but heard four to six additional shots. Mr. David then ran into the hallway and out the back door with the gun in his hand. Mr. Macoy saw Mr. Kauo run back into the bedroom. Mr. Macoy hid behind a large dresser but heard several additional shots. Mr. Macoy saw Mr. Kauo collapse on the floor. Mr. Macoy jumped over Mr. Kauo’s body. Mr. Macoy ran outside to Casey’s car, where Mr. David and Mr. Bishop were already seated. Casey drove away immediately thereafter.
Mr. David repeatedly said, “I had to do this for you guys.” The four men prayed for Mr. Kauo as they drove. Mr. David telephoned Mr. Block and said, “It’s done.” Casey understood that to mean that Mr. David had killed Mr. Kauo. Casey drove to a 7-Eleven store in North Hollywood, where they met Mr. Block and Ms. Fajota. Mr. Block had driven a red van to the 7-Eleven store. Ms. Fajota drove her blue van. Mr. David and Mr. Block spoke for a short time. Thereafter, Mr. David directed Casey to follow Mr. Block’s red van. Ms. Fajota and Mr. Macoy went to Ms. Fajota’s apartment to clean it. Mr. David rode in Mr. Block’s van. After getting gas at a nearby station, Mr. Block and Casey drove to the Thousand Oaks home where Ms. Fajota’s children were staying. An older Filipino man asked Mr. Block where Mr. Kauo was. Mr. Block shrugged and said, “I hadn’t seen him.” Casey was ordered to retrieve an object wrapped in a white cloth from the van for Mr. Block. Casey believed the object inside the cloth was a gun. Mr. Block got a screwdriver. Mr. Bishop saw Mr. Block disassembling the gun in the kitchen with the screwdriver. When Mr. Bishop asked why he did not just throw it away, he responded: “Why should I? It’s my gun.”
Later, Mr. David, Mr. Block, Mr. Macoy, Mr. Bishop, Ms. Fajota’s children and two Filipino men returned to North Hollywood. They went to Mr. Block’s apartment. Mr. Macoy and Ms. Fajota were inside the apartment. Mr. Block directed all but the Filipino men into the back bedroom. Mr. Block spoke directly to Mr. David. Mr. David was instructed to change his clothing. Mr. Block instructed Mr. Bishop, Mr. Macoy and Casey to put out a story that the three of them had been at the mall. The story was to include that they had been with Casey’s girlfriend all day and had not seen Mr. Block. Mr. Block hugged each of the men and kissed them on the cheek. An autopsy revealed that Mr. Kauo died as the result of 10 gunshot wounds. Several nine millimeter casings were found at the murder location.
On January 12, 2007, Mr. David was arrested by Detective Alan Solomon. Mr. David led Detective Solomon to an area to the rear of Mr. Rhahamadpasert’s residence. Mr. David pointed out an ivy bush, where Detective Solomon retrieved a silver semiautomatic nine millimeter handgun wrapped in a white towel.
Detective Solomon had contact with Mr. Block on December 29, 2006. At that time, photographs were taken of Mr. Block’s tattoos. Mr. Block admitted that he had been a member of the local gang since he was 12 or 13 years old. Mr. Block also indicated that he began to associate with a Mexican gang while in prison. After being arrested, Mr. Block stated that on the day Mr. Kauo was murdered, Ms. Fajota dropped her children off in Thousand Oaks so that they could spend time together. At approximately 7 or 7:30 p.m., Mr. Block went to see his Mr. Kauo at the Mariposa address. Mr. Block did not mention the damage done to Ms. Fajota’s apartment or having gone to Burbank. After visiting with Mr. Kauo for approximately 15 minutes, Mr. Block went back to Thousand Oaks to pick up the children. Mr. Block denied knowing who killed Mr. Kauo. Mr. Block speculated that Ms. Chung, her associates or a rival gang may have killed Mr. Kauo. Mr. Block did not believe any local gang members were involved in Mr. Kauo’s murder.
Detective Ken Yeung was assigned to the Asian gang unit. Detective Yeung lived in an area of Los Angeles where there was a large Filipino population. Detective Yeung was familiar with the local gang through his high school and work experience. Detective Yeung had over 500 interactions with gang members in consensual encounters and through investigation of gang-related crimes. Detective Yeung was familiar with members of the local gang who explained their activities to him. The local gang dressed more like Hispanic gangs. Based on his relationships with other gang investigators, Detective Yeung was aware of several cliques or subgroups of the local gang within Los Angeles County. Detective Yeung believed there were approximately 15 to 20 members of the local gang clique within the Rampart area. When local gang members are sentenced to prison, they are often obligated to join forces with a regional Latino gang.
Detective Yeung was one of the investigating officers in this case. Detective Yeung went to the Mariposa house where the murder occurred. Detective Yeung saw gang graffiti on the walls that reflected the local gang symbols. Detective Yeung was aware that in December 2006, the primary activities of the local gang were drug sales out of the house on Mariposa, vehicle theft, identity theft, assault with a deadly weapon, firearms possession, attempted murder and murder. Detective Yeung was familiar with the conviction of Michael Verador in case No. BA287167 of possession of a loaded firearm on August 24, 2005. At the time of his arrest, Mr. Varador admitted he was a member of the local gang. In another case, case No. NA040253, a local gang member was convicted of robbery with a firearm on October 20, 1999.
Mr. Block’s gang tattoos suggested that he attained an elevated status within the gang. If a gang member is older than other members and has been in prison, that puts him higher in the gang hierarchy. To maintain that leadership role, he must react to incidents of disrespect. Hypothetically, if the leader’s home was ransacked and tagged with the gang monikers of fellow gang members by another gang member, such would be viewed as an act of disrespect. A further act of disrespect would be displayed if the gang member who performed the vandalism also had sexual relations with the leader’s girlfriend. If that leader did not act and word of his failure to act got out to the regional Latino gangs, he would be perceived as weak. Word of his weakness would spread rapidly within the prison system. A reference to a “green light” amongst Asian gang members and the regional Latino gangs usually means to kill someone. Detective Yeung believed that a killing as a result a gang leaders’s home being vandalized by other members of his gang would be committed for the benefit of the gang. This would be true even if the victim was a member of the same gang. The killing would enhance the gang’s reputation.
B. Evidence Presented at Mr. Block’s Second Trial
The evidence presented at the second trial was consistent with that of the first trial with the following exceptions. Detective Solomon testified concerning the tape-recorded interview with Mr. Block on December 28, 2006. Mr. Block said that none of the local gang members were at the Mariposa house during the visit with Mr. Kauo. Mr. Block went to look for Mr. Kauo because, “He was like missing in action.” When interviewed by Detective Solomon, Mr. Block described a conversation with Mr. Kauo: “I told him, ‘Well, I got to go. You all right? You don’t need no money or anything?”’ Mr. Kauo allegedly stated he did not need any money.
Mr. Block never mentioned that anyone else went with him to Thousand Oaks to pick up the children or to Ms. Fajota’s apartment thereafter. Mr. Block denied that there had been any problem with Mr. Kauo on the day before the murder. At the time of the interview, Mr. Block was crying and appeared distraught.
Ms. Fajota was arrested with Mr. Block on January 13, 2007. Ms. Fajota told the detectives that she and Mr. Block had been at City Walk the entire day of December 28, 2006. The detectives warned Ms. Fajota that if she knew something about the murder or had some involvement her children could be taken from her. Ms. Fajota then told Detective Solomon that she was afraid of Mr. Block. Ms. Fajota said she was afraid of Mr. Block because he had threatened her in the past. Mr. Block had held a gun to her head. Ms. Fajota recognized the gun Mr. Block gave to Mr. David on December 28, 2006. It was the same gun Mr. Block had once held to her head. Ms. Fajota testified that she could not recall many of the things she discussed with the detectives. Ms. Fajota stated she had lied because Mr. Block had cheated on her.
However, when Ms. Fajota was interviewed on January 15, 2007, she said that after she spoke with Mr. Block about the damages in her apartment, he had travelled to Thousand Oaks. Ms. Fajota left her children in Thousand Oaks and travelled with Mr. Block to lock her apartment. Ms. Fajota and Mr. Block then went to Mr. David’s house in Torrance, where all of the “homies” came outside to greet them. Thereafter, Mr. Macoy, Mr. Rhahamadpasert, Casey and Mr. David went to Burbank to look for Mr. Kauo. Mr. Rhahamadspert left. Mr. Block, Mr. David and Ms. Fajota then drove to the Mariposa residence. Ms. Fajota also told Detective Solomon that after Mr. Block spoke with Mr. Kauo, they left without Mr. David. Thereafter, Mr. Block picked up his red van at Ms. Fajota’s apartment. They both drove to the 7-Eleven store nearby. Tape recordings of both interviews were played for the jury.
III. DISCUSSION.
A. Mr. Block’s Severance Motion
1. Factual and procedural background
Mr. Block argues that the trial court’s denial of his severance motion deprived him of his federal and state constitutional right to a speedy trial. The prosecution originally charged Mr. Block, Mr. David, Mr. Macoy, Casey and Mr. Bishop with Mr. Kauo’s murder. All five defendants were arraigned on June 28, 2007. On July 19, 2007, Mr. Block filed a severance motion. At the pretrial conference the same day, the trial court noted that most of the attorneys agreed that a continuance was necessary to allow for trial preparation and filing of motions. Attorneys for all defendants, except Victor Martinez who represented Mr. Block, agreed to continue the matter to August 24, 2007. However, Mr. Martinez, objected to “any type of continuance” beyond the 60-day time period after the arraignment. Mr. Martinez indicated in addition to the severance request he intended to file peace officer personnel records disclosure and dismissal motions. The trial court found good cause to continue the matter noting: “There is a multiple defendant case. I am satisfied by my discussions with the other attorneys that they’re not ready for trial. And I feel it would be imprudent to allow one defendant’s request for a speedy trial to force a severance that would be uneconomical and not in the interest of justice or to require the other defendants to go to trial before they’re ready.”
On August 24, 2007, the trial court inquired whether Mr. Block’s severance motion was not premature because it was not yet known what statements, if any, the prosecution would use at trial against him. Mr. Martinez argued that Mr. Block was differently situated from the other four defendants. According to Mr. Martinez, the other defendants indicated that they participated in the murder plot because they felt threatened by Mr. Block. The trial court stated that duress was not a defense to murder. Thereafter, the trial court ruled the motion was premature. However, the trial court indicated that once the prosecutor made some firm strategy decisions, it would entertain a new motion. Casey’s attorney had also filed a severance motion. Mr. Martinez further argued that Mr. Block continued to refuse to waive time. Mr. Martinez acknowledged Mr. Bishop’s counsel had just substituted in to the case and had thousands of pages of transcripts to read. However, Mr. Martinez continued: “I don’t think it is reasonable to allow Mr. Block another 3 or 4 months when [counsel for Mr. Bishop] gets up to speed, which is not an unreasonable time for him to get ready to go. [¶] I know the other attorneys also are not ready to announce ready at this point. We are ready to go. We would like to be severed so we can handle our trial. Get on witnesses, move this case forward to protect Mr. Block’s speedy trial rights.” The trial court stated, “Just because your client wants a speedy trial is not a reason for me to sever him from the others, particularly in a case like this where it is alleged that he was so intimately involved.” Thereafter, the prosecutor requested that the matter be continued to the first week of October to allow him to determine how he would use the other defendants’ statements. Mr. Martinez again declined to waive time. Alejandro Mayorkas, Mr. Bishop’s newly retained attorney, stated: “[W]e were going to request [a continuance] because we’re new counsel. We don’t yet have all of the discovery from prior counsel....” The trial court took the severance motions under submission and set the next hearing for October 4, 2007. In his opposition to the severance motions, the prosecutor noted that at that time, he did not intend to elicit any incriminating extrajudicial statement of any non-testifying co-defendants.
On October 4, 2007, the trial court found good cause over Mr. Block’s objection to continue the matter to November 2, 2007, noting: “I find that this is a complex case. At this moment it involves several co-defendants, and many of the co-defendants have indicated a willingness to enter pleas, and I think that we’ve got to let the dust settle and find out exactly who is going to trial. [¶] But it is my understanding... that it is the prosecution’s intention to try Mr. Block and Mr. Kyle David in a joint trial; is that correct?” The prosecutor responded, “Yes.” Thereafter, the court inquired, “And it is your argument that the economies of scale, such as they are, would support the joint trial of these two defendant?” The prosecutor answered, “Yes, your honor.” The trial court then ruled, “And on that basis I am finding good cause to continue the matter to November 2nd....”
On November 6, 2007, the trial court indicated its intention was to start trial on January 3, 2008. Mr. David waived his right to a speedy trial. Mr. Martinez, on behalf of Mr. Block, objected to any further continuance. The prosecutor noted that one defense attorney requested that date based upon his schedule. The prosecutor further stated he preferred a joint trial because several witnesses, including some co-defendants, would testify. The prosecutor argued: “I believe justice and efficiency would be best served by presenting all that evidence at one trial. I think it would prejudice the People’s case also to separate and have all of these witnesses testify at two different trials.” The trial court responded: “I recognize the defendant Charles Block has a right to a speedy trial. [¶] I do think, though, that the interest of justice outweighs his right to an immediate trial and that we should continue the case. [¶] And I do find good cause for the reasons stated by the prosecutor. [¶] The fact of the serious nature of the charges and the interest of judicial economy persuade the court that a continuance is appropriate.” On December 5, 2007, Mr. Martinez again objected to the January 3, 2008 trial date. The trial court continued the matter to January 3, 2008 for the reasons previously set forth. Trial commenced on January 8, 2008, against Mr. Block and Mr. David. All the other co-defendants had reached plea agreements prior to trial.
2. The trial court could properly deny the severance motions and continue the trial
Section 1049.5 provides, “In felony cases, the court shall set a date for trial which is within 60 days of the defendant’s arraignment in the superior court, unless, upon showing of good cause as prescribed in Section 1050, the court lengthens the time.” Both the United States and California Constitutions guarantee a defendant’s right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, Cl. 1; see United States v. Marion (1971) 404 U.S. 307, 320; People v. Roybal (1998) 19 Cal.4th 481, 512.) Our Supreme Court recently held: “In deciding whether to grant relief due to unreasonable delay in the prosecution, courts must consider what the high court refers to as the four ‘Barker’ factors (Barker v. Wingo (1972) 407 U.S. 514): ‘whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.’ (Doggett[v. United States (1992)] 505 U.S. [647,] 651.)” (People v. Horning (2004) 34 Cal.4th 871, 891; see also People v. DePriest (2007) 42 Cal.4th 1, 26.)
Section 1382 provides in pertinent part: “(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [¶]... [¶] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment....” However, section 1050.1 provides: “In any case in which two or more defendants are jointly charged in the same complaint, indictment, or information, and the court... for good cause shown, continues the... trial of one or more defendants, the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants’ cases so as to maintain joinder. The court... shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court... that it will be impossible for all defendants to be available and prepared within a reasonable period of time.” A codefendant’s need to prepare for trial or a preliminary examination can constitute good cause for a continuance. (In re Samano (1995) 31 Cal.App.4th 984, 993; Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 501.)
We review a trial court’s good cause determination to continue the trial for abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Memro (1995) 11 Cal.4th 786, 852-853; People v. Johnson (1980) 26 Cal.3d 557, 570; Arroyo v. Superior Court (2004) 119 Cal.App.4th 460, 464.) Whether good cause exists depends upon the circumstances of the case. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 781; Owens v. Superior Court (1980) 28 Cal.3d 238, 250.) Moreover, the Supreme Court has held: “Where a continuance is granted upon good cause to a codefendant the rights of the other defendants are generally not deemed to have been prejudiced. [Citation.]” (People v. Teale (1965) 63 Cal.2d 178, 186; Greenberger v. Superior Court, supra, 219 Cal.App.3d at p. 500.)
Defendant does not disagree that a good cause showing was sufficient to continue the matter as to all defendants. Rather, defendant argues, “[A] finding that the defendants should not be severed is not, in itself, good cause for a continuance of the trial of jointly charged defendants.” (Original emphasis) Defendant argues that the trial court abused its discretion by granting the continuances on that basis alone. However, the trial court did not grant the continuances solely on the ground that severance would not serve the interests of justice. Rather, as noted on each occasion that a continuance was granted, the trial court explained its reasoning based on the preference for joint trials and the circumstances presented by: the fact that not all counsel for co-defendants were ready to proceed to trial; the remaining possibility that additional motions would be filed, including Mr. Block’s own peace officer personnel record disclosure and dismissal requests; the substitution of counsel for Mr. Bishop; this substitution required Mr. Bishop’s attorney, Mr. Mayorkas, to read through voluminous transcripts; the need for additional decisions by the prosecution regarding the potential pleas for some of the co-defendants; and the complexity and serious nature of the charges.
Here, the circumstances of the case were particularly suited for a joint trial. All of the defendants were involved in the murder of Mr. Kauo. The prosecutor indicated that he would not use any extrajudicial statements of co-defendants. The delay was not inordinate in light of the complexity of the case, the gravity of the charge and the reasons for the continuances. Nor was the delay attributable to the conduct of the prosecution. (See Barker v. Wingo, supra, 407 U.S. at p. 530-531; Greenberger v. Superior Court, supra, 219 Cal.App.3d at pp. 504-507; People v. Powell (1974)40 Cal.App.3d 107, 152, disapproved on another point in People v. Harris (1984) 36 Cal.3d 36, 53.) No abuse of discretion occurred.
Mr. Block did not file a dismissal motion pursuant to section 1382 prior to the commencement of trial based upon the denial of his speedy trial rights. In People v. Wilson (1963)60 Cal.2d 139, 147, our Supreme Court held: “‘[A] right to move for a dismissal is the sole right protected by section 1382.’ It is not enough that the defendant has objected at the time the cause was set for trial beyond the statutory period: ‘an appellant is such a case cannot make a successful claim of error by the trial court merely because the court has not heeded an objection to the setting of the case....’ [Citation.] The defendant must also move to dismiss after the expiration of the allowable delay (but before the beginning of trial) so that if the court decides the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided.” (See Sykes v. Superior Court (1973) 9 Cal.3d 83, 94 [“duty placed upon an accused in protecting his right to a speedy trial is to object when his trial is set for a date beyond the statutory period and then move to dismiss once that period expires”]; Bailon v. Appellate Division (2002) 98 Cal.App.4th 1331, 1348-1350; People v. Lind (1924) 68 Cal.App. 575, 578-579.) In this case Mr. Block repeatedly objected to the continuances. However, Mr. Block did not move to dismiss his case prior to the commencement of trial. As a result, he has waived the statutory speedy trial issue on appeal.
Even if the circumstances should not have occurred, defendant has failed to demonstrate any prejudice. (People v. Wilson, supra, 60 Cal.2d at p. 147; People v. Anderson (2001) 25 Cal.4th 543, 605.) Mr. Block’s alleged prejudice was set forth as follows: “[O]ne of the chief reasons why the prosecutor and co-defendants’ counsel sought to delay the trial was to facilitate plea bargaining by the co-defendants who, eventually, agreed to testify against [him] in exchange for leniency. It is abundantly clear that both the prosecutor and co-defendants’ counsel utilized the delay to strengthen their respective positions. Moreover, it is clear that the prosecutor utilized the delay to significantly weaken [his] defense by enlisting his former co-defendants as prosecution witnesses.”
If Mr. Bishop, Casey, and Mr. Macoy had not testified against Mr. Block, Mr. Rhahamadprasert no doubt would have explained the events leading up to the murder of Mr. Kauo, including: Mr. Block’s insistence that the local gang members associate with the Latino gang; the vandalism at Ms. Fajota’s apartment; Mr. Block’s leadership and authority in giving the “green light” to kill Mr. Kauo; the threats made to the co-defendants if they refused to commit the murder; and the efforts made to find Mr. Kauo by Mr. Block and the co-defendants. Likewise, Ms. Fajota would have been called as a witness regarding these events. Any argument that the plea agreements would not have occurred earlier if the matter was forced to trial is entirely speculative. Moreover, in terms of the severance issue, Mr. Block was tried alone and was convicted. Given the state of the evidence, Mr. Block has failed to sustain his prejudice burden.
B. Mr. David’s Severance Claim
1. Factual and procedural background
Mr. David argues that the trial court improperly denied Mr. Block’s and Casey’s severance motions. Mr. David further argues the trial court improperly found that Mr. Block’s extrajudicial statements were admissible at trial. As previously discussed, the trial court took the severance motions under submission on August 24, 2007. Before trial was set to commence on January 3, 2008, Mr. Macoy, Casey and Mr. Bishop entered into plea agreements and agreed to testify at trial. Prior to opening statements, the prosecutor indicated, “As I have indicated to counsel, I intend to elicit and probably will state during my opening state that [Mr.] David led the detectives to the gun that was used in the murder, that he admitted to shooting the victim.” Following an objection by Mr. Block’s attorney, the trial court ruled: “I would allow you to say that [Mr.] David took the police to an area where the gun was found. That would be about as far as I think you should go in your opening statement.” During the course of the trial, the prosecutor indicated the intention to use Mr. Block’s statement to Detective Solomon. In that statement, Mr. Block said that he was with Ms. Fajota on the date of the murder. Mr. Block said that at approximately 7 p.m. they went to see Mr. Kauo. Thereafter, they returned to Thousand Oaks where Ms. Fajota’s children were left earlier that day. Mr. Block made no mention any of the codefendants or members of the local gang. Mr. Block was asked who killed Mr. Kauo. Mr. Block claimed he did not know, but believed it was possibly a rival gang, taggers, Ms. Chung, or her associates. The prosecutor argued Mr. Block’s statement did not incriminate Mr. David in any way. Counsel for Mr. David expressed surprise by this revelation and argued the admission of Mr. Block’s extra-judicial statements without the right to conduct cross-examination of the declarant would be inappropriate. Initially, the trial court indicated that it was troubled that although the statement may not be made inadmissible by Bruton v. United States (1968) 391 U.S. 123, 126-137, it might suggest Mr. David’s involvement by implication as discussed in People v. Fletcher (1996) 13 Cal.4th 451, 456. The trial court ruled that it would not allow the prosecutor to introduce the statement until it had reviewed it.
Later that day, the trial court indicated it had reviewed Mr. Block’s statement. The trial court found that there was no reference to any codefendant including Mr. David. The trial court also noted: “I have also looked again at the Fletcher case. Fletcher, which is at 13 Cal.4th 451, is an editing case. The Supreme Court said, ‘Editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the co-participant designated in the confession by symbol or neutral pronoun.’ We don’t have that in this case. [¶] I would be inclined, even though I find that there is some surprise to [counsel for Mr. David], to say that I think this relates only to [Mr.] Block. And I will instruct the jury that they are to consider this statement only as to [Mr.] Block. And I will allow the prosecution to use this statement.” Thereafter, the prosecutor questioned Detective Solomon regarding Mr. Block’s statement. The questioning included Mr. Block’s opinion that he did not believe the local gang was involved in the murder.
2. Forfeiture
Preliminarily, Mr. David did not join the severance motions of either Mr. Block or Casey. In People v. Rogers (2006) 39 Cal.4th 826, 851, our Supreme Court held: “We have held that even if a trial court’s ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law. [Citations.] Defendant asserts such review for gross unfairness is available even when no motion to sever ever was made. [Citations.] This court never has adopted the position urged by defendant, however.” (See People v. Maury (2003) 30 Cal.4th 342, 392; People v. Hawkins (1995) 10 Cal.4th 920, 939-940, overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 88.) Mr. David has therefore forfeited the severance issue.
3. The trial court could properly deny the severance motion
Notwithstanding that waiver, gross unfairness did not result in this case. The California Supreme Court has held: “Under [Penal Code,] section 1098, ‘[w]hen two or more defendants are jointly charged... they must be tried jointly, unless the court order[s] separate trials.’ In light of this legislative preference for joinder, separate trials are usually ordered only ‘“in the face of an incriminating confession, 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.”’ (People v. Turner (1984) 37 Cal.3d 302, 312 [], overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1115 [], quoting People v. Massie (1967) 66 Cal.2d 899, 917 [].) A trial court’s denial of a severance motion is reviewed for abuse of discretion on the basis of the facts known to the trial court at the time of the ruling. (People v. Alvarez [(1996)] 14 Cal.4th [155,] 189; People v. Cummings (1993) 4 Cal.4th 1233, 1287 [].)” (People v. Box (2000) 23 Cal.4th 1153, 1195; see also People v. Taylor (2001) 26 Cal.4th 1155, 1173-1174; People v. Pinholster (1992) 1 Cal.4th 865, 932; see also People v. Conerly (2009) 176 Cal.App.4th 240, ___.)
The United States Supreme Court has held: “Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption of law that jurors follow their instructions....” (Richardson v. Marsh (1987) 481 U.S. 200, 206; see People v. Hampton (1999) 73 Cal.App.4th 710, 717.) A narrow exception was drawn in Bruton v. United States, supra, 391 U.S. at page 124, where the United States Supreme Court held a Sixth Amendment violation resulted when a nontestifying accomplice’s confession inculpated a criminal defendant. (See Nelson v. O’Neil (1971) 402 U.S. 622, 626.) Our Supreme Court ruled likewise on state law grounds in People v. Aranda (1965) 63 Cal.2d 518, 522. (See People v. Burney (2009) 47 Cal.4th 203, ___; People v. Combs (2004) 34 Cal.4th 821, 841.)
However, both Supreme Courts allow for the admission of statements in a joint trial under the following circumstances: “(1) It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established. (2) It can grant a severance of trials if the prosecution insists that it must use the extrajudicial statement and it appears that effective deletions cannot be made. (3) If the prosecution has successfully resisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, the trial court must exclude it if effective deletions are not possible.” (People v. Aranda, supra, 63 Cal.2d at pp. 530-531, fn. omitted; Richardson v. Marsh, supra, 481 U.S. at pp. 203, 208, 211 [“confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence”]; see also People v. Fletcher, supra, 13 Cal.4th at p. 464; People v. Hampton, supra, 73 Cal.App.4th at pp. 718, 721 [no error where the redacted confession contained no reference to the accomplice or any substituted symbols for an unnamed person and limiting instruction was given that the extrajudicial inculpatory statement could not be considered against the defendant].)
Here, the trial court could properly find that the facts presented satisfied the statutory preference for joint trial of jointly charged defendants. (§ 1098; People v. Taylor, supra, 26 Cal.4th at p. 1174; People v. Pinholster, supra, 1 Cal.4th at p. 932.) Mr. Block’s statement did not implicate Mr. David. Rather, Mr. Block indicated he believed the murder was committed by a rival gang and did not involve the local gang members. Mr. Block’s statement would have also been admissible had there been separate trials. In addition, Mr. David committed the murder in the presence of other witnesses who testified at trial. Mr. David also confessed to the murder and led police to the murder weapon. His confession would have certainly been admissible at a separate trial.
C. Peremptory Challenge Issue
Factual and procedural background
First, Mr. David argues that the prosecutor improperly utilized a peremptory challenge to excuse an African-American prospective juror. Mr. David argues the prosecutor’s challenge reflected a group bias. Mr. David argues this bias violated his state and federal rights to an impartial jury and equal protection. More specifically, Mr. David argues that the trial court improperly found no prima facie case had been established and accepted the prosecutor’s explanation as legitimate.
In this case, Mr. Martinez, on behalf of Mr. Block, raised the discriminatory use of peremptory challenges issue during the selection of the first jury alleging the prosecutor improperly excused three Black jurors. Counsel for Mr. David, Pat Lengyel-Leahu, joined the motion. The trial court responded: “I don’t find a prima facie case. They all had baggage as far as I could see. Mr. Avila?” Thereafter, the prosecutor explained that juror No. 5: was more likely Hispanic than Black; had been arrested for driving under the influence in 2007; and the father of her child was a gang member who was in prison. Regarding juror No. 10, the prosecutor stated: “His best friend is a gang member. He has been around [gangs]. He is also a producer. My thoughts, he says he sees it both ways. He can see the redeeming qualities of gang members. That is not the type of prosecution juror that I would be looking for or I think any prosecutor would in a case like this.” The trial court indicated: “I felt he was flippant in his responses, frankly. I certainly understood why you would exercise on him.” Finally, regarding juror No. 22, the prosecutor stated, “My reason for kicking her, she said family members were in gangs and may feel sympathy for gang members.” The trial court concluded: “I thought they were all very legitimate and fairly obvious. The Wheeler motion is denied.” Jury selection continued. After the jury had been selected but before trial had commenced, a defense mistrial was motion was granted.
Jury selection commenced anew with an entirely different panel. During the course of voir dire of the second panel, the prosecutor exercised a peremptory challenge to excuse prospective juror No.33. Thereafter, Mr. Lengyel-Leahu objected. The following colloquy occurred: “[Mr. Lengyel-Leahu]: As before, it would appear that the People are excluding all the people of African American heritage from the jury pool. They did it on the first jury. Now we have available - - [¶] The Court: Well, first of all, I don’t think I should consider what challenges were made the first time when we went through the jury selection. But even if I were, I want to point out that the prosecutor has accepted on many occasions juror number twelve who is a Black male. He is an engineer. [¶] If you are asking me to find a prima facie case of exclusion for race, the prosecutor has excused only two African American members at this point; is that true? [¶] [Mr. Lengyel-Leahu]: That’s my count. [¶] The Court: Juror number 32 and juror number 33. [¶] And do you agree that number twelve is also an African American? [¶] [Mr. Lengyel-Leahu]: Yes. [¶] The Court: And has been accepted on multiple occasions by this prosecutor. [¶] [Mr. Lengyel-Leahu]: Yes, your honor. [¶] The Court: All right. I don’t think there is a prima facie case based upon that. [¶] [Mr. Lengyel-Leahu]: I don’t think there has to be - - you have to show all African Americans have been excused. But we’re showing a pattern, why I suggested we bear in mind that he did this the last time around and he seems to be doing it this time around so I think the prima facie case has been made. [¶] The Court: I disagree with you. [¶] Were I trying the case, I probably would have held onto 33. He is a security guard. I thought he seemed to be a relatively, if anything, pro-prosecution. [¶] But I don’t find a prima facie case.”
The prosecutor then asked to state his reasons for excusing juror No. 33 on the record. The trial court invited Mr. Avila to do so. Mr. Avila stated: “As far as juror number 33, yes, he is a security guard. He is not a security guard that deals with police officers or turns over suspects to police officers. [¶] He has numerous tattoos all throughout both his arms one of them appeared to be lettering going down his arm which I have been trying to decipher. I don’t know if these are gang related tattoos or not. [¶] What I do know, Mr. Block has numerous tattoos on his arms and there may be some kind of understanding that tattoos on the arms may be no big deal. [¶] In my case they have significant points showing commitment to a particular gang. I don’t know if the juror would take offense to me arguing that as far as the number of tattoos Mr. Block has. [¶] As far as the other juror [juror No. 32], she was a dispatcher for the Hollywood Casino. Many a times she was laughing back there. And I don’t think she was taking much of this very seriously.” The trial court responded, “I thought she was very - - very slow in her responses and did not impress the court as an appropriate candidate for this trial.”
2. The trial court could properly find no prima facie case was demonstrated on either occasion
Our Supreme Court has repeatedly held: “Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. (Batson[ v. Kentucky (1986)] 476 U.S. [79,] 97; Georgia v. McCollum (1992) 505 U.S. 42, 59; [People v.] Wheeler[(1978)] 22 Cal.3d [258,] 276-277.) Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (People v. Bonilla (2007) 41 Cal.4th 313, 341; People v. Avila[ (2006)] 38 Cal.4th [491,] 541.)... [¶] The Batson three-step inquiry is well established. First the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from the opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional claims. (People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Bell (2007) 40 Cal.4th 582, 596.)” (People v. Lenix (2008) 44 Cal.4th 602, 612-613; People v. Lancaster (2007) 41 Cal.4th 50, 74; see also People v. Cruz (2008) 44 Cal.4th 636, 655; Johnson v. California (2005) 545 U.S. 162, 168.)
We review a trial court’s denial of a premised motion upon the improper use of a peremptory challenge with deference, examining only whether substantial evidence supports its conclusions. (People v. Lenix, supra, 44 Cal.4th at p. 613; People v. Bonilla, supra, 41 Cal.4th at pp. 341-342; People v. Burgener (2003) 29 Cal.4th 833, 864.) In Lenix, our Supreme Court held: “‘[T]he trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie “‘peculiarly within a trial judge’s province,’” [citations], and we have stated that “in the absence of exceptional circumstances, we would defer to [the trial court].” [Citation.]’ [Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 614, quoting Hernandez v. New York (1991) 500 U.S. 352, 364-365; Snyder v. Louisiana (2008) 522 U.S. ___, ___ [128 S.Ct. 1203, 1208].)
Where a trial court asks for explanation after indicating it has questions about the defense’s prima facie showing, “The court’s expression of doubt negates any inference that it made an implied finding either way about the existence of a prima facie case.” (People v. Arias (1996)13 Cal.4th 92, 135; People v. Davenport (1995) 11 Cal.4th 1171, 1200-1201.) Our Supreme Court has held that when the record demonstrates the trial court has merely asked the prosecutor for justifications to make a complete record rather than finding a prima facie case, we need not review the adequacy of the justification. (People v. Welch (1999) 20 Cal.4th 701, 746; People v. Turner (1994) 8 Cal.4th 137, 167.) When a trial court rules that no prima facie case has been made, the following rules apply on appeal: “‘[T]he reviewing court considers the entire record of voir dire. [Citation.] “If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question,”’ we reject the challenge. [Citation.]” (People v. Welch, supra, 20 Cal.4th at p. 746, quoting People v. Davenport, supra, 11 Cal.4th at p. 1200; see also People v. Bell, supra, 40 Cal.4th at p. 597.) Once it was satisfied with the reasons given, the trial court was not obligated to conduct further inquiry into the prosecutor’s race-neutral explanations regarding prospective juror No. 6674. (People v. Jackson (1996) 13 Cal.4th 1164, 1197-1198; People v. Johnson (1989) 47 Cal.3d 1194, 1218.)
As set forth previously, we give great deference to the trial court’s denial of a motion premised upon the improper use of a peremptory challenge. (People v. Lenix, supra, 44 Cal.4th at p. 613 [“We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.]”]; People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Avila, supra, 38 Cal.4th at p. 541.) Our Supreme Court has held that even where a prima facie case has been shown: “The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanations need not justify a challenge for cause. [Citation.] ‘Jurors may be excused based on “hunches” and even “arbitrary” exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citations.]’ [Citation.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Box, supra, 23 Cal.4th at p. 1186, fn. 6; People v. Turner, supra, 8 Cal.4th at p. 165; see also Purkett v. Elem (1995) 514 U.S. 765, 767.) Our Supreme Court recently held: “‘[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.’ [Citations.] Original italics.” (People v. Bonilla, supra, 41 Cal.4th at p. 343; People v. Bell, supra, 40 Cal.4th at p. 598, fn. 3 [“Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.]”]; accord Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 1198.)
We have reviewed the record regarding both peremptory challenges motions in this case. With regard to the first motion, the record reflects that juror No. 5 stated: she had family members who were involved in gangs; one of her cousins was convicted of “something to do with drugs”; and the cousin had an upcoming court date. Juror No. 10 stated: “Gangs, yes. When I came here one of my best friends went to school, Howard University, he was in a gang.” Juror No. 10, a producer, said he was raised on the East Coast but came to California in 1998 to become involved in acting, producing and directing. Juror No. 10 did not know the friend from Howard University was a gang member until arriving in California. The friend was the only gang member juror No. 10 knew. According to juror No. 10, the friend lived in the area where the “riots were.” Juror No. 10 reported that he had also been in rival gang territory and “seen both sides.” Juror No. 10 also stated: “Sometimes you can’t help not to be affiliated in a gang. You don’t have to be in gangs. They don’t necessarily pressure to be a part of them.... [¶] I have seen both sides in terms of gangs. It doesn’t sway me on the other. I have friends on the positive law, locked up, died. Friends that died because of that life-style.” With regard to domestic violence, juror No. 10 reported that he had seen it since he was young. Juror No. 10 said he had neighbors who were involved in domestic violence and his cousin was stabbed but remained with her partner. Juror No. 10 concluded: “I have seen the good, bad and ugly. And it really comes down to personal choice, no matter what the case is.” The record reflects that juror No. 22 indicated: she lived in a gang neighborhood; she was arrested for driving under the influence and had an upcoming court date; the father of her child was in prison in Oklahoma; she knew that the father of her child was a gang member when they got together; and she believed his sentence was “pretty harsh.” Also, any error in connection with the first jury panel is of no constitutional consequence. A mistrial was granted and an entirely new jury panel was summoned. Thus any discriminatory conduct in connection with the first panel as to Mr. David is entirely harmless.
During the voir dire of the second panel, the trial court asked juror No. 32: “Do you want to be on this jury?” Juror No. 32 responded, “No.” The trial court then asked: “Why not? It’s going to be an interesting case.” Juror No. 32 again responded, “No.” Juror No. 32 indicated that she had contact with gang members at her job as a dispatcher at Hollywood Park Casino. Juror No. 32 explained that as a dispatcher, she sent out “security” if there was an issue going on on the casino floor. Juror No. 33 said he almost had a few “runs-ins” with gangs when he was mistaken for a gang member in his neighborhood. Juror No. 33 stated he was a security officer for a prominent boxer and worked in a building in downtown Los Angeles. Although he had not arrested anyone in his current position, he had previously arrested someone for shoplifting. Juror No. 33 did not carry a gun in his job. As noted, juror No. 32 did not perform any essential law enforcement functions despite the fact she was armed while working at the casino. Also, according to Mr. Avila, juror No. 32 was laughing and not taking the proceedings seriously. Further, as to juror No. 33, he had tattoos. The prosecutor was uncertain whether the tattoos were gang related. But gang tattoos were an issue as to Mr. Block. Mr. Avila was concerned as to how juror No. 33 would react to arguments relating tattoos to Mr. Block’s gang life-style. The trial court could reasonably find these were neutral nondiscriminatory reasons for Mr. Avila to excuse juror Nos. 32 and 33.
D. Replacement of a Sitting Juror with an Alternate
1. Factual and procedural background
Mr. David argues that the trial court improperly replaced a sitting juror with an alternate during deliberations. Mr. David further argues that the trial court should have started deliberations again after the alternate juror was seated. Following a mistrial, the second jury voir dire began on January 7, 2008. Jury selection was completed and trial commenced on January 8, 2008. On Tuesday, January 15, 2008, the trial court met with counsel regarding various jurors’ scheduling problems, noting: “Juror number nine, she reports she’s gone next week. She leaves Los Angeles on January 21st and will be gone the whole week. So we are going to lose her next week starting Monday, which of course is a court holiday. [¶] Juror number twelve says he’s flying to Utah on Friday, that would be January 18th at 8:30 in the morning. He will be back on Tuesday at 5:00 p.m. So he would like to remain on the jury but if we don’t have a verdict by Thursday afternoon, the jury will not be able to resume deliberations until Wednesday of next week. And then he’s flying out on [the following] Friday. [¶] I was hoping we could finish the evidence today and argue this case tomorrow. We are taking longer than I had hoped with this trial.” Thereafter, the prosecutor indicated he expected to complete his presentation of evidence that day. Mr. Lengyel-Leahu indicated there should be no problem if the prosecution finished that morning.
The jury began deliberations on Wednesday, January 16, 2008. Before the jury left the courtroom, the trial court again discussed the two scheduling problems with counsel at sidebar, noting: “What I thought I would do is tell the jurors we plan to have them deliberate the rest of today and tomorrow and that we will recess to accommodate juror 12’s schedule until next week and that they should feel under no pressure to come to a decision tomorrow. [¶] That is what my plan was. Now, if they don’t reach a decision tomorrow, we will lose juror number 9. I don’t [k]now what else we can do. [¶].. [¶] I am going to tell them that number 9 will be excused if they don’t reach a verdict by tomorrow afternoon. But that they’re not to feel that they’re under any pressure. Can I do that?” Both defense counsel and the prosecutor indicated displeasure with that proposal. Mr. Lengyel-Leahu suggested: “Instead of telling them either one directly, I understand we have problems about scheduling. We’ll try to do [what] we can to accommodate.” Thereafter, the trial court advised the jurors: “Ladies and Gentlemen, we have received two of your notes regarding scheduling. We will do our best to accommodate jurors’ schedules. I tell you that because I don’t want you to feel that you are under any special pressure to decide this case quickly, okay? [¶] But we are aware of the schedules that some of you have. And we will be mindful about it.”
After the jury resumed deliberations on Thursday, January 17, 2008, the trial court advised counsel that two notes had been received regarding the jurors’ scheduling problems. In addition to the two previously discussed schedules of juror Nos. 9 and 12, the trial court said, “[T]he clerk has heard that perhaps alternate number 2 will not be available next week.” The trial court posed two options: “[T]o inquire of the jurors if they could take the week off and return on the 28th of January to resume deliberations. [¶]... [¶] Another option would be to go ahead and dismiss number 9 and the first alternate and ask the jurors to return and resume their deliberations on Wednesday, the 23rd.” The trial court continued: “I will tell you, I don’t like the idea of interrupting deliberations, but if you have to, you have to. We went beyond our estimate of five to six days by two or three days and that has resulted in these problems. [¶] Why don’t we make inquiry of the jurors as to their availability, because we may have a whole bunch of jurors that cannot come back the week of January 28 and, if so, that would foreclose that option and we would have to go forward with probably twelve jurors on Wednesday, the 23rd. [¶] The clerk advises me that juror number 12 has told her that he has to also fly out of town on the 25th. So I just don’t know what we’ve got going. Let’s bring them out and we’ll talk to them.”
Thereafter, the trial court brought out the jurors and confirmed the schedules of juror Nos. 9 and 12. Thereafter, the trial court learned that alternate juror No. 2 would be departing on the evening of Thursday, January 24, 2008, and returning on Tuesday, January 29, 2008. Juror No. 2 reported that he would be beginning school on Tuesday, January 22, 2008. Juror No. 11 stated she had work-related travel plans on Thursday, January 24, 2008. The trial court learned that the jurors had reached a verdict on one count against one defendant. The trial court discussed the options with counsel at sidebar. Both the prosecutor and Mr. Martinez, who represented Mr. Block, suggested deliberations continue on Tuesday, January 22, 2008, and that the trial court substitute alternate jurors as necessary. Mr. Lengyel-Leahu, who represented Mr. David, suggested the deliberations be postponed until January 28, 2008.
The trial court then addressed the jurors. Juror No. 9 acknowledged that if deliberations resumed on January 23, 2008, she would be gone. Juror No. 11 stated she could adjust her travel to be gone only on January 25, 2008. Juror No. 2 indicated that he could speak with his professors and try to work out something. Alternate juror No. 2 stated she did not plan to leave town until the evening of January 24, 2008. The trial court stated: “I think, counsel, we should receive the verdict that the jury has and then I will seat an alternate and excuse juror No. 9. [¶] Counsel want to object?” The prosecutor responded, “No.” Mr. Lengyel-Leahu did not voice an objection. Thereafter, the trial court indicated it would receive the one verdict reached by the current jurors.
The clerk randomly selected alternate juror No. 1 to replace juror No. 9 when the deliberations resumed on Wednesday, January 23, 2008. The trial court received the not guilty verdict as to count 2 against Mr. Block. The trial court then excused juror No. 9. Alternate juror No. 1 was advised that he was now on the jury. The trial court instructed the jury in pertinent part as follows: “[Y]ou must set aside and disregard all past deliberations and begin your deliberations all over again. [¶] Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place.” Thereafter, the trial court excused the jury and ordered them to return on Wednesday, January 23, 2008, again admonishing them: “You understand that you have to start all over again. That means your request for readback of testimony is not going to be honored. If you need that request just tell us you need the readback previously requested. That is, after you all get together.”
Deliberations commenced on January 23, 2008. The jury sent out requests for readbacks during that day. On January 24, 2008, the trial court reported the jurors had sent a note at 3:20 p.m. the previous day indicating that they were unable to reach a verdict as to Mr. Block and as to Mr. David, “[W]e are unanimous that [Mr. David] is guilty of count 1, but we cannot come to a unanimous decision for first degree or second degree murder.” The prosecutor then moved to dismiss the first degree murder allegation as to Mr. David in the interest of justice and in order to avoid a mistrial as to Mr. David. Mr. Lengyel-Leahu said nothing on these issues. The jurors were brought into the courtroom. The trial court read their note aloud. The trial court then informed them that the prosecutor had withdrawn the first degree murder charge as to Mr. David. The trial court asked the jurors to continue to deliberate regarding the charges against Mr. Block and ask for additional readback or additional instruction if necessary.
Later that morning, the trial court received another note from the jurors inquiring, “Do we need to decide on anything for Kyle David?” The trial court informed the jurors: “[Y]es, we need you to deliberate. And if the jury has unanimously reached a verdict, then you must fill out the verdict form, and if you can, answer all the allegations that are part of that verdict form.” The trial court also clarified, in response to a juror’s question, that all the allegations against Mr. David had to have a unanimous decision. The trial court further stated, “Now there is no first, so if the jury in its wisdom, after deliberating, had decided that he is guilty of second degree murder, then you just write in the word ‘second,’ okay?” The jury resumed deliberations at 9:40 a.m. At 11:20 a.m. the jurors sent word that they had reached a verdict as to Mr. David. The jury continued deliberations as to Mr. Block. The second degree murder verdict as to Mr. David was received at 3:30 p.m.
2. Forfeiture
Mr. David made no objection to the trial court’s excusal of juror No. 9 at the time it occurred. The only comment made by Mr. Lengyel-Leahu was to continue the deliberations until January 28, 2008. When juror No. 9 was actually excused, Mr. David voiced no objection. Mr. David has forfeited this issue on appeal. (People v. Ashmus (1991) 54 Cal.3d 932, 987, fn. 16 [“As a general rule, a defendant may properly raise [on appeal] a point involving a trial court’s allegedly improper discharge of a juror only if he made the same point below.”]; Cf. People v. Gallego (1990) 52 Cal.3d 115, 166.)
3. The trial court could reasonably find good cause to excuse juror No. 9
In any event, a trial court may discharge a juror pursuant to section 1089, “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”
The trial court’s decision to discharge a juror for good cause is reviewed for abuse of discretion. (People v. Zamudio (2008) 43 Cal.4th 327, 349; People v. Guerra (2006) 37 Cal.4th 1067, 1158, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.) The California Supreme Court recently held: “The substitution of a juror for good cause pursuant to section 1089, even after deliberations have commenced, ‘“does not offend constitutional proscriptions.”’[Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, ___, quoting People v. Leonard (2007) 40 Cal.4th 1370, 1410.)
Mr. David argues there was no good cause to dismiss juror No. 9. We disagree. The trial court was placed in a difficult position as a result of the extended presentation of trial evidence. On January 7, 2008, the trial court told the jurors the time estimate was a five to six day trial. Trial commenced on January 8, 2008. On January 15, 2008, the sixth day of trial, the trial court was reminded of juror No. 9’s unavailability and of juror No. 11’s travel commitments as well as juror No. 2’s school obligations. This posed a difficult decision for the trial court. At that time, there remained only two alternate jurors, one of whom likewise had upcoming travel plans. The trial court held extensive discussions with counsel and then discussed the matter with the jurors. It was reasonable for the trial court to conclude that, since one verdict had been reached, and the only alternative to replacing juror No. 9 was to continue deliberations for approximately 10 days, the most prudent decision would be to allow the remaining jurors and an alternate to commence deliberations anew while there remained at least two full days before the next scheduling conflict. The trial court sought to diminish the attrition of jurors and advised the jurors that they need not feel rushed to reach a verdict.
4. The trial court did order the jurors to begin deliberations anew when alternate juror No. 1 was seated
Mr. David argues that despite the trial court’s admonishment that the newly constituted jury begin deliberations anew, the jurors “ignored” that instruction because they requested the same readback request sent by the previous jury members the previous day. As set forth above, the trial court twice instructed the jurors following the seating of alternate juror No. 1 that they must begin deliberations anew: “[Y]ou must set aside and disregard all past deliberations and begin your deliberations all over again. [¶] Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place.” Before the proceedings adjourned, the trial court reiterated: “You understand that you have to start all over again. That means your request for readback of testimony is not going to be honored. If you need that request just tell us you need the readback previously requested. That is, after you all get together.” As noted previously, we presume the jurors followed those instructions. (People v. Carey (2007)41 Cal.4th 109, 130; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) With neither citation to authority nor factual support for his contentions, Mr. David presumes the jury committed misconduct. Mr. David has the burden of providing an argument and legal authority to support his contentions. (Cal. Rules of Court, rule 8.204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004, fn. 2.) Mr. David has not done so.
Moreover, the record contradicts Mr. David’s contentions. The jury deliberated all day January 23, 2008. On January 24, 2008, the trial court received a note indicating that the jury had reached a guilty verdict as to Mr. David, but had not decided on the first or second degree murder. After the prosecutor dismissed the first degree murder charge, the jurors continued to deliberate and reached a verdict as to Mr. David at 11:20 a.m.
E. The Prosecutor’s Call Of Mr. David As A Witness
Factual and procedural background
Mr. Block argues that during the retrial the trial court improperly allowed the prosecutor to call Mr. David as a witness during the retrial. Mr. Block asserts that despite Mr. David’s grant of immunity, he did not intend to answer questions. On March 20, 2008, the prosecutor granted use immunity to Mr. David. This was to allow Mr. David to testify against Mr. Block. The trial court signed an order granting that immunity. The prosecutor requested that Mr. David be brought into the courtroom in order to testify before the jury. Mr. Martinez argued that although Mr. David was already convicted, the situation did not differ from an individual who is granted immunity but declines to testify. It was unknown whether Mr. David would refuse to testify. The trial court granted Mr. Martinez additional time to research the issue. The trial court indicated that Mr. David had no right to refuse to testify. The trial court further explained: “[I]t’s my understanding that the prosecution perceives this to be a gang case. And that their argument would be that this is the way gang members hang together. They do not implicate each other.... [Mr. David’s] unwillingness to testify, if that is what ultimately comes about, would reflect gang pressure. And I think that the other reason to call Mr. David in front of the jury is to eliminate juror speculation as to why he wasn’t called.” Mr. Lengyel-Leahu then reported that Mr. David was “absolutely not” going to testify. Nonetheless, the prosecutor planned to have Mr. David refuse to testify in the jurors presence.
On the following day, the prosecutor indicated Mr. David would not fulfill a prior agreement to testify. Mr. Martinez argued: “[Mr. David] doesn’t have the constitutional right. So there are differences. I would say in the normal particular case, that - - that it may be appropriate for us to allow this witness to testify, but this is a little bit different because you still have the same danger you have when a witness invokes the privilege against self-incrimination. In other words, the jury is drawing improper inferences from a witness who does not testify.” The prosecutor argued: “We have a gang case, which is typical of gang cases where gang members may or may not answer questions. So it’s not a Fifth Amendment issue. We’re willing to grant him use of immunity, but I believe that the jury needs to see why this person would not answer questions. [¶] I think the inference is that there is a gang - - it’s gang related, there is a gang association here, and if he doesn’t want to answer questions, it’s very much like what Casey David said, he may be in fear of something else.” The trial court then indicated that it would announce its decision on the matter on the following Monday.
The trial court ultimately held, “My feeling is we don’t really know what Kyle David is going to do, and I think that under the law the prosecutor has the right to show the jury his good faith effort and attempt to call Kyle David as a witness, and I am going to allow that to happen.” Thereafter, the prosecutor indicated that Mr. David might be cooperative. Mr. David was brought to the witness stand. The oath was administered. Mr. David agreed to tell the truth. Mr. David acknowledged that Kyle David was his true name and identified his gang moniker. Thereafter, Mr. David responded, “I plead the Fifth.” The trial court explained: “Yes. Well, I have already granted the witness immunity, ladies and gentlemen, for any testimony he might give today. [¶] So, Mr. David, I am going to tell you you cannot plead the Fifth Amendment, and I am ordering you to answer the question.” The prosecutor further explained: “Meaning, Mr. David, that you’re granted use immunity, which means that nothing you say here in court can be used against - - against you to prosecute you. [¶] Do you understand that?” Mr. David responded, “Yes.” However, when further questions were posed, Mr. David responded, “No answer.” The trial court again explained that Mr. David could not rely on the Fifth Amendment. Mr. David again acknowledged that he understood. The prosecutor inquired whether Mr. David was afraid. Mr. David responded, “Yes, sir.” Mr. David also acknowledged that he did not want to be in court or testify. Mr. David further admitted that there are consequences to testifying. When the prosecutor inquired about what could happen as a result of testifying, Mr. David responded, “No answer.” The trial court ordered Mr. David to answer the questions or be faced with contempt. The trial court inquired whether Mr. David understood that he was being ordered to answer questions. Mr. David said, “Yes, sir.” When asked by the court if he was refusing to answer all questions, Mr. David stated, “That’s right.” Mr. David acknowledged that he was committing an act of contempt. The court then ordered: “All right. Well, I do find Mr. David to be in contempt of court, and I will impose an appropriate punishment at a later time. He may be removed.” The trial court then instructed the jury: “Ladies and gentlemen, because Mr. David’s testimony was not complete, you may not consider anything he said other than his name. There was no completion of the testimony. So I am striking all questions and answers posed to him beyond what his name was.”
2. The trial court could properly allow Mr. David to take the witness stand
The Fifth Amendment to the United States Constitution protects witnesses from compulsory self-incrimination in any criminal or civil case. The California Constitution likewise provides, “Persons may not... be compelled in a criminal cause to be a witness against themselves....” (Cal. Const., art. I, § 15; see also § 1324.) However, a grant of immunity from prosecution for the individual’s testimony is sufficient to compel testimony over a claim of the privilege. (Kastigar v. United States (1972) 406 U.S. 441, 453; Murphy v. Waterfront Comm’n (1964) 378 U.S. 52, 54, overruled on another point in United States v. Balsys (1998) 524 U.S. 666, 687; Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 714-715; People v. Cooke (1993) 16 Cal.App.4th 1361, 1366.) Once immunity is granted, a witness may not refuse to answer questions directed to him or her. (Kastigar v. United States, supra, 406 U.S. at p. 449; People v. Seijas (2005) 36 Cal.4th 291, 305.)
In this case, once Mr. David was granted use immunity, the trial court could properly compel him to testify. As noted by the prosecutor and the trial court, and ultimately conceded by Mr. Martinez, Mr. David’s conviction and the subsequent immunity grant removed any Fifth Amendment privilege issue. In People v. Sisneros (2009) 174 Cal.App.4th 142, 151-152, we recently held the trial court did not abuse its discretion in calling a witness before the jury despite her indication that she would not testify. We held: “[E]vidence of the Mexican Mafia’s penchant for witness intimidation was relevant to the prosecution case both as to the credibility of eyewitness testimony and as substantive evidence supporting the gang allegations. Luna’s refusal to take the oath and testify provided strong support for the expert’s opinion that the [gang] engaged in witness intimidation.” (People v. Sisneros, supra, 174 Cal.App.4th at p. 152.) Our decision in Sisneros relied in part on People v. Lopez (1999) 71 Cal.App.4th 1550, 1555-1556.
In this case, the trial court acknowledged: “The prosecution perceived this to be a gang case. And that their argument would be that this is the way gang members hang together. They do not implicate each other.... [Mr. David’s] unwillingness to testify, if that is what ultimately comes about, would reflect gang pressure. And I think that the other reason to call Mr. David in front of the jury is to eliminate juror speculation as to why he wasn’t called.” These were proper reasons for bringing Mr. David before the jury to testify.
Ultimately, the trial court struck Mr. David’s entire testimony because he refused to answer all questions. The trial court instructed the jury not to consider any of Mr. David’s testimony. As noted previously, we presume the jury followed that instruction. (People v. Carey, supra, 41 Cal.4th at p. 130; see Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 803.) As a result, any error in calling Mr. David to the stand was harmless.
F. Instructions
1. Factual and procedural background
Mr. Block argues that the trial court should have instructed the jury that Ms. Fajota and Mr. Rhahamadprasert were accomplices as a matter of law. After the prosecutor rested, Mr. Martinez moved for entry of judgment of acquittal pursuant to a section 1118.1 motion, arguing: the evidence presented during the retrial was “substantially the same as what was presented in the previous trial with just some minor changes”; all of the incriminating evidence came from accomplices; and the conspiracy began with Mr. Block’s phone call to Mr. David’s home, thereby making Mr. Rhahamadprasert’s subsequent acts part of the plot to kill Mr. Kauo. The trial court noted that Mr. Martinez had previously argued that the conspiracy did not commence until the meeting at Mr. David’s residence. The prosecutor argued that whether Mr. Rhahamadprasert or Ms. Fajota were accomplices to the murder count was a question of fact for the jury. Mr. Martinez then argued that Mr. Rhahamadprasert was an aider and abettor to the murder.
The jury was instructed with CALCRIM No. 334 over Mr. Block’s objections: “Before you may consider the testimony of Attawaut Rhahamadprasert, that would be Rudy, or Jennifer Fajota as evidence the testimony [sic] you must decide whether he or she was an accomplice to the crimes of murder and conspiracy to murder. [¶] A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if, one, he or she knew of the criminal purpose of the person who committed the crime; and, two, he or she intended to and did in fact aid, facilitate, promote, encourage or instigate the commission of the crime, or participate in a criminal conspiracy to commit the crime. [¶] The burden is on the defendant to prove that it is more likely than not that Attawaut Rhahamadprasert and Jennifer Fajota were accomplices. An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he or she is present at the scene of a crime even if he or she knows that a crime will be committed or is being committed and does nothing to stop it. [¶] A person may be an accomplice even if he or she is not actually prosecuted for the crime. If you decide that a witness was not an accomplice, then supporting evidence is not required and you should evaluate his or her testimony as you would that of any other witness. [¶] If you decide that Attawaut Rhahamadprasert and Jennifer Fajota were accomplices, then you may not convict the defendant of murder or conspiracy to commit murder based on their testimony alone. You may use the testimony of accomplices to convict the defendant only if, one, the accomplice’s testimony is supported by other evidence that you believe; two, that supporting evidence is independent of the accomplice’s testimony; and, three, that supporting evidence tends to connect the defendant to the commission of the crimes. [¶] Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crimes. And it does not need to support every fact mentioned by the accomplice about which the accomplice testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice. Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence. [¶] If the crimes of murder and conspiracy to commit murder were committed then Anthony Bishop, Casey David and Ray Macoy were accomplices to those crimes and you may not convict the defendant or murder or conspiracy to commit murder based upon the accomplice alone. You may use the testimony of an accomplice to convict the defendant only if, one, the accomplice’s testimony is supported by other evidence that you believe; two, that supporting evidence is independent of the accomplice’s testimony; and, three, that supporting evidence tends to connect the defendant to the commission of the crimes.”
The trial court ruled: “I do not believe that [Mr. Rhahamadprasert] was ever a member of any conspiracy. That’s where the court comes from having heard the evidence in this case. [¶] I do think that there was a gathering of members. I feel that the argument the People are making, that the actors of the conspiracy acted under duress is interesting, but the definition of an accomplice is one that is subject to prosecution for the same offense. And certainly these other persons, setting aside Jennifer Fajota, were subject to prosecution. [¶]... [¶] So I’m saying [Mr.] Bishop, Casey David, Kyle David and [Mr.] Macoy were all subject to prosecution and are, therefore, accomplices, and the rule regarding accomplice corroboration applies to them.” Regarding Ms. Fajota, the trial court stated: “She drove around. She went off looking for [Mr. Kauo]. Her statements were, she didn’t realize that they were going to kill him. And if the jury credits that, then she would not be a member of the conspiracy, even though she’s acting unwillingly to further the conspiratorial activity.” Ultimately, the trial court held: “I am going to deny the motion based on 1118.1. I am going to find that there is a disputed fact that Jennifer Fajota as to whether she was a knowing aider and abettor and a knowing member of the conspiracy. [¶] I know the People did not include her in count 5 [conspiracy] as a listed member of the conspiracy, nor did they include [Mr. Rhahamadprasert], which is the court’s view as well.” Thereafter, the trial court instructed the jurors with CALCRIM No. 334 as to Ms. Fajota and Mr. Rhahamadprasert. (See fn. 5.) The jurors were also instructed with CALCRIM No. 335 as to Mr. Casey, Mr. Macoy and Mr. Bishop.
2. The jury was properly instructed
Section 1111 defines an accomplice thusly, “An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” Our Supreme Court has held, “[A] court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness’s criminal culpability are ‘clear and undisputed.’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 104; People v. Williams (1997) 16 Cal.4th 635, 679; People v. Rodriguez (1986) 42 Cal.3d 730, 759; accord People v. Fauber (1992) 2 Cal.4th 792, 834.) Our Supreme Court has also held: “‘An accomplice must have “‘guilty knowledge and intent with regard to the commission of the crime.’” [Citation.]’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 467.) The defendant has the burden to prove by a preponderance of the evidence that a witness is an accomplice. (People v. Cook (2006) 39 Cal.4th 566, 601; People v. Williams (1997)16 Cal.4th 153, 225; People v. Fauber, supra, 2 Cal.4th at p. 834; People v. Tewksbury (1976) 15 Cal.3d 953, 960.)
Here, the evidence was in dispute as to both Ms. Fajota and Mr. Rhahamadprasert’s status as an accomplice. Ms. Fajota testified under a grant of immunity at both trials. Ms. Fajota testified at the second trial that she could not recall what she had told detectives following Mr. Block’s arrest. When Ms. Fajota was interviewed on January 15, 2007, she told Detective Solomon she spoke with Mr. Block about the damages in her apartment. Thereafter, she told Detective Solomon that Mr. Block travelled to Thousand Oaks. Ms. Fajota left her children in Thousand Oaks and travelled with Mr. Block to lock her apartment. Ms. Fajota and Mr. Block then went to Mr. David’s house in Torrance, where all of the “homies” came outside to greet them. Thereafter, Mr. Macoy, Mr. Rhahamadpasert, Casey and Mr. David went to Burbank to look for Mr. Kauo. Mr. Rhahamadprasert left to pick up his father. Mr. Block, Mr. David and Ms. Fajota then drove to the Mariposa residence. Ms. Fajota also stated that after Mr. Block spoke with Mr. Kauo, they left without Mr. David. Thereafter, Mr. Block picked up his red van at Ms. Fajota’s apartment. They both drove to the 7-Eleven store nearby. The evidence of Ms. Fajota’s criminal culpability was not so clear and undisputed that a single inference could be drawn that she could be liable for the same offense charged against Mr. Block. Therefore, the jury was properly instructed to decide the question of whether Ms. Fajota was an accomplice.
The same is true for Mr. Rhahamadprasert’s involvement. Mr. Rhahamadprasert was present at Mr. David’s home when Mr. Block telephoned to give the “green light” on Mr. Kauo. But Mr. Rhahamadprasert did not participate in either the conspiracy or the actual killing. Mr. Rhahamadprasert understood that he was supposed to have participated in the killing of Mr. Kauo. However, Mr. Rhahamadprasert found a way to avoid involvement in the killing. Mr. Rhahamadprasert claimed he had to leave in the car he was driving in order to perform a community service obligation. Also, the car had to be given to Mr. Rhahamadprasert’s father. Approximately four or five months prior to December 2006, Mr. Block and Mr. Rhahamadprasert discussed the consequence of not “riding” with the gang in its activities. Mr. Rhahamadprasert was not an accomplice as a matter of law.
3. Harmless error
Even assuming the trial court should have instructed that Mr. Rhahamadprasert and Ms. Fajota were accomplices as a matter of law, any such error is harmless when there is ample evidence corroborating the witness’s testimony. (People v, Cook, supra, 39 Cal.4th at p. 601; People v. Williams, supra, 16 Cal.4th at p. 226.) Moreover, Mr. Block has not demonstrated prejudice as a result of the failure to so instruct. There was extensive corroborating testimony by Mr. Macoy, Casey and Mr. Bishop that Mr. Rhahamadprasert left the group before they drove to the Mariposa house where the murder occurred and Mr. Block gave the “green light” to kill Mr. Kauo. Mr. David placed his phone on speaker mode so that the others present in the car could hear. Casey heard Mr. Block say: “If [they] didn’t take out [Mr. Kauo], out of the picture, he would [] kill [their] families, the rest of the party’s families.” In addition, Mr. David led police to the gun used in the shooting.
G. Sentencing
1. Mr. David’s 40-years-to-life term
Mr. David argues that because the trial court imposed a 25-year section 12022.53, subdivision (d) enhancement, his 40-years-to-life sentence is so grossly disproportionate as to violate the United States and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Defendant’s argument is meritless. As our colleagues in Division Four of this appellate district noted: “‘The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]’” (People v. Gonzales (2001) 87 Cal.App.4th 1, 16, quoting People v. Martinez (1999) 76 Cal.App.4th 489, 494; see also People v. Taylor (2001) 93 Cal.App.4th 318, 324; People v. Villegas (2001) 92 Cal.App.4th 1217, 1231; People v. Alvarez (2001) 88 Cal.App.4th 1110, 1118; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216.)
Mr. David argues that if Mr. Kauo was stabbed or strangled rather than shot to death, the firearm use enhancement would be inapplicable. However, Mr. David used a gun, firing 10 shots into Mr. Kauo. The fact that defendant’s prior record was limited is outweighed by the gravity of the offense and the circumstances surrounding its commission. In fact, the Legislature specifically determined that those who use firearms in the commission of the felonies designated in section 12022.53 pose such a danger that substantially longer prison sentences must be imposed in order to protect the innocent and to deter violent crime. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124; People v. Martinez, supra, 76 Cal.App.4th at p. 497.) Defendant’s sentence is not grossly disproportionate to the offense and no constitutional violation has occurred. (Rummel v. Estelle (1980) 445 U.S. 263, 268; Spencer v. Texas (1967) 385 U.S. 554, 559-560; People v. Gonzales, supra, 87 Cal.App.4th at p. 16; People v. Martinez, supra 76 Cal.App.4th at p. 497.)
Mr. Block’s section 186.22, subdivision (b)(1)(C) term
Following our request for further briefing, we find the trial court improperly stayed the section 186.22, subdivision (b)(1)(C)gang enhancement as to Mr. Block rather than striking it. The court also imposed a firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1) as to count 1 as to Mr. Block. In People v. Salas (2001) 89 Cal.App.4th 1275, 1278-1283, we held: “In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm used by the accused is not required under these specific circumstances. However, as a consequence of this expanded liability under section 12022.53, subdivision (e), the Legislature has determined to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm. In the present case, the jury never found that defendant personally used a firearm.” (Original italics; see also People v. Lopez (2005) 34 Cal.4th 1002, 1006-1011 [first degree murder committed for the benefit of a gang falls within the 15-year minimum parole eligibility term in section 186.22, subdivision (b)(5) rather than being subject to the 10-year enhancement set forth in section 186.22, subdivision (b)(1)(C)].) In this case, the 10-year section 186.22, subdivision (b)(1)(C) enhancement imposed as to count 1 should be stricken because the jury did not find Mr. Block personally used a firearm.
Court security fees
The Attorney General argues that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Walz (2008) 160 Cal.App.4th 1364, 1372-1373; People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one $20 section 1468.5, subdivision (a)(1) fee as to Mr. Block. Therefore, one additional section 1465.8, subdivision (a)(1) fees shall be imposed as to Mr. Block. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to strike the 10-year Penal Code section 186.22, subdivision (b)(1)(C) term that was imposed and stayed as to Mr. Block. Further, the trial court is to impose two Penal Code section 1465.8, subdivision (a)(1) court security fees as to Mr. Block. Upon remittitur issuance, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation reflecting the modifications set forth above. The judgments are affirmed in all other respects.
We concur: ARMSTRONG, J. MOSK, J.