Opinion
NOT TO BE PUBLISHED
Superior Court No. 02F00117
OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT
MORRISON, J.
In an opinion filed on February 27, 2006, we affirmed the judgments in full. After granting a petition for writ of certiorari, the United States Supreme Court vacated the judgment and remanded the cause to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We recalled the remittitur and the parties filed supplemental briefs on the effect, if any, of Cunningham on this case. We again affirm the judgments.
BACKGROUND
This prosecution began as a six-defendant attempted murder case. A jury convicted appellants Lamar Benny Davis and Patrick Boyd of assault with a deadly weapon, rejected a firearm use allegation against Davis and criminal street gang enhancements as to both Davis and Boyd, and found Boyd personally used a handgun and inflicted great bodily injury. (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subd. (a), 12022.7, subd. (a).) The trial court found Davis had a prior strike. Davis was sentenced to eight years in prison and Boyd to seventeen years; both timely filed appeals. The former codefendants fared as follows: David Lee Williams successfully moved to sever his case; Antoine John McCullough obtained a mistrial due to his attorney’s arrest in the middle of this trial; Joe James Johnson, Jr., was acquitted; and Virgil Ray Lands was convicted of assault with a deadly weapon, received probation, and did not appeal.
There is no challenge to the evidence as such and the briefs agree on the basic facts. Arthur Taylor is a young rap artist whose lyrics, played for the jury, glorified the gangster lifestyle. Late evening on December 31, 2001, he drove with three friends and his toddler daughter to a 7-Eleven store to buy gas, en route to watch New Year’s Eve fireworks. That particular store was a hangout for the Eastside Piru Bloods, and three times in the preceding year people wearing blue clothing—the color of the rival Crip gang—had been shot or stabbed near the store. Apparently because Taylor was driving a blue Mustang, and because two of his passengers were White and the local Rosemont Crip gang had many White members, he was accosted by a group of Bloods preparing to commit a robbery (a “lick”). As Taylor grappled with codefendant Johnson, he was shot from behind.
The fight was filmed by a surveillance camera and filmed by a bystander using a camera-phone, but neither film shows clearly who shot Taylor. Later one of the Bloods, Andre Campbell, turned on his comrades and named Boyd as the shooter. Campbell testified Davis was a Blood “shot-caller,” and that Davis ordered Boyd to shoot Taylor while Taylor was struggling with Johnson. Campbell was severely impeached with his multiple-drug use, including on the date of the shooting, as well as with his immunity bargain by which his truthful testimony would free him of criminal liability for this case and for drug charges.
Neither defendant testified. A defense expert called by Johnson opined the shooting was not gang-related. Boyd’s expert testified marijuana and Ecstasy (which Campbell had been using) could impair a person’s perceptions. Boyd argued the People had not proved the shooting was gang-related or that Boyd was part of the fighting, and that Campbell was a liar. Davis argued the film exonerated him, and he belittled the gang evidence. He also emphasized reasons to disbelieve Campbell.
The jury rejected the People’s attempted murder theory, but found Boyd committed assault with a deadly weapon with the use of a gun, crediting the evidence that he pulled the trigger. The jury also found Davis guilty of assault with a deadly weapon, impliedly crediting the evidence that he encouraged Boyd. The jury rejected a gang allegation, at least expressing a doubt that the crime was in furtherance of gang activities.
DISCUSSION
I.
Defendants contend the trial court should have granted their Batson-Wheeler motions due to the prosecutor’s alleged race-based exercise of peremptory challenges. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.) We find no error.
Defendants mention three African-American prospective jurors, D, K and O. The prosecutor’s first five peremptory challenges included O and K and after K was challenged the defense made its first joint Batson-Wheeler motion. On appeal defendants concede O was excused for race-neutral reasons. The trial court found a prima facie case as to K, but found the prosecutor’s race-neutral explanation was genuine and supported by the record.
After both the defense and the prosecutor exercised further peremptory challenges, the prosecutor challenged D as soon as she was seated to replace a prospective juror individually challenged by codefendant McCullough. The trial court found no prima facie case, but invited the prosecutor to state his reasons for challenging her.
The trial court, in accord with California Supreme Court precedent, concluded the defense had to show a “strong likelihood” that the challenge as to D was race-based. (See People v. Johnson (2003) 30 Cal.4th 1302, 1312-1314.) After the original appellate briefs were filed in this case, the United States Supreme Court rejected the “strong likelihood” test and held that in determining whether a defendant has shown a prima facie case, he or she need only produce “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California (2005) 545 U.S. 162, 170 [162 L.Ed.2d 129, 139] (Johnson).) For purposes of this appeal, applying the newly-clarified standard, we will assume that the defense made out a prima facie case as to D. After setting out the applicable substantive legal standard, we will discuss the relevant facts regarding D and K.
Jurors may be peremptorily challenged for subjective reasons, including hunches and a juror’s in-court demeanor. (People v. Reynoso (2003) 31 Cal.4th 903, 917-918 (Reynoso); People v. Allen (2004) 115 Cal.App.4th 542, 547.) The ultimate issue is the persuasiveness of the tendered reason in light of the record, that is, whether the record supports a trial court’s finding that the challenge was properly exercised. (See Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339 [154 L.Ed.2d 931, 951]; Reynoso, supra, at pp. 907-908.)
“Where . . . the trial court is fully apprised of the nature of the defense challenge to the prosecutor’s exercise of a particular peremptory challenge, where the prosecutor’s reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutor’s reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reasons for the exercise of each such peremptory challenge.” (Reynoso, supra, 31 Cal.4th at p. 929; see id. at p. 919; see also People v. Howard (1992) 1 Cal.4th 1132, 1155 [Wheeler rulings reviewed with deference].)
Recent California Supreme Court cases have not decided whether, in light of the decision in Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] (Miller-El II), a defendant on direct appeal may insist that an appellate court consider a comparative juror analysis for the first time on appeal. (People v. Schmeck (2005) 37 Cal.4th 240; People v. Gray (2005) 37 Cal.4th 168; People v. Cornwell (2005) 47 Cal.4th 50; People v. Ward (2005) 36 Cal.4th 186, 203.)
Even were such an analysis legally appropriate, defendants in their briefs and supplemental briefs—filed after Miller-El II was decided—have not presented a comparative analysis argument and therefore any such claim is forfeited. (See People v. Gidney (1937) 10 Cal.2d 138, 142-143 (Gidney).) Nothing in Miller-El II, even broadly construed, indicates an appellate court is compelled to engage in such an analysis absent compliance with normal appellate briefing rules.
A. Prospective Juror K (No. 243)
K was a single mother who worked for Vision Service Plan. She had been on a criminal assault jury before. She had felt prejudice while growing up. In 1984, a cousin was assaulted and the criminal was convicted. In a juror questionnaire she had been asked “What, if any, feelings do you have regarding street gangs in Sacramento?” and she had answered “I don’t have feelings for made-up families.”
When the trial court found a prima facie case as to K, the prosecutor explained his challenge in part as follows:
“I am extraordinarily cognizant of how potential jurors view individuals who are associated with criminal street gangs. When I find a response by someone like [K] who indicates and refers to gangs as made-up families, as well as I have seen other jurors who talk about how the gang problem is related to something that these young men may be missing at home, a gigantic red flag goes up for me.
“I am not going to allow to sit on this jury individuals who in any sense of the word view gang members as people who are either missing something in their home life so they turn to gangs or who view gangs as made-up families.
“And because [gang] liability for four of these five hinges on that, I’m not ever going to take that chance. So when I see these types of responses, in my mind that person is gone.”
Defense attorneys argued the literal meaning of K’s answer was anti-gang, that she did not have feelings for “made-up families.” The trial court accepted the prosecutor’s explanation as race-neutral.
On appeal defendants argue the prosecutor could have clarified the juror’s written answer about gangs. The trial court stated the juror might have been salvaged “had I or the attorneys clarified what she meant by made-up families. She may have a different view [of] what she meant by families. Namely, gang banging families that would be a very negative term rather than one of warm and fuzzy families.” But the prosecutor was adamant that he would never take the risk of allowing such a juror on the case. That was a rational and race-neutral explanation and there is nothing in the record to show that it was not genuine.
The fact another prosecutor may have made another choice about this juror is not relevant. “The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. . . . ‘[A] “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]’” (Reynoso, supra, 31 Cal.4th at p. 924.) Here, the reason both made sense and was race-neutral. In Reynoso, one juror was excused because she was “a counselor for at-risk youth”; the prosecutor believed this would give her “‘undue sympathy for both defendants in this case because they are young and definitely if not at risk, past risk’” and this reason was accepted as race-neutral and genuine by both the trial court and the Court of Appeal, and was not disturbed by the Supreme Court. (Id. at pp. 911, 923, fn. 5.) Here, the challenged juror’s use of the term “made-up families” when referring to street gangs raised similar concerns about undue sympathy. The prosecutor emphasized that no matter what the juror may have intended to convey, follow-up questioning would not have dissipated his qualms. The fact the prosecutor chose to challenge Juror K outright rather than spend court time parsing her answer does not render his race-neutral reason “meaningless” as defendants assert on appeal.
We reject Davis’s claim that other information about K should have dispelled the prosecutor's concerns. For example, although K may have given testimony suggesting she was not anti-prosecution, the prosecutor was not compelled to credit that portion of her testimony, nor compelled to abandon his concerns about her, even if that testimony might have satisfied another prosecutor. And contrary to Davis’s argument in his supplemental brief, the prosecutor was not required to question K further once he had enough non-race-based information to convince him that he did not want her on the jury. Davis relies on a passage of the recent case of Miller-El II, supra, 545 U.S. 231 [162 L.Ed.2d 196]. In that case the court observed that in stating reasons for one challenge a Texas prosecutor “simply mischaracterized” the prospective juror’s voir dire testimony regarding willingness to impose the death penalty: “In light of Field’s outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike.” (Id. at p. 244 [162 L.Ed.2d at p. 216].) Contrary to Davis’s apparent view, this passage does not impose on prosecutors a duty to exhaustively question jurors deemed to be unacceptable to the prosecution; it reiterates the existing duty of prosecutors to be accurate when stating the reasons for peremptory challenges. Here, what the prosecutor knew caused him to suspect K of undue lenity and no questioning would have dispelled his concerns.
Boyd argues the trial court must make “detailed findings” “when a prosecutor’s stated reasons . . . are either inherently implausible or unsupported by the record,” and continues that “Courts must examine whether the stated justification is borne out by the actual record.” We agree with the premise that a trial court may not passively accept anything offered as a justification, but instead must evaluate the reasons given in light of the record and determine whether they are the actual, sincere, reasons. (See People v. Silva (2001) 25 Cal.4th 345, 385-386; People v. Fuentes (1991) 54 Cal.3d 707, 714-715.) But Boyd has not demonstrated that the record in this case shows that the prosecutor’s reasons were implausible or unsupported such that more detailed inquiry or findings by the trial court were required.
B. Prospective Juror D (No. 259)
D answered a written question by stating “many of my friends and some of my relatives have been detained by law enforcement without good reason.” On voir dire she testified that within the past couple of weeks her nephew became upset when he was detained near his home and asked for identification. She told him “welcome to society. This is how it goes for young black brothers, you know.”
A friend of hers had had a nice car and “his mother lived next door to a park where a lot of activity was done. [¶] Q. Negative activity? [¶] A. Sure. And, you know, well, he was leaving there one time and he had been parked there for awhile. And the police had been up and down the street. But the moment he left they came up behind him, pulled him over, and went through some [rigmarole] as to what are you doing.” This happened in 1988.
Within the past three to four months, the same friend had been followed by the police and at least once D had been in the car with him when this happened. “Q. So it sounds to me like you . . . you’ve experienced, or your friend has experienced, racial profiling on his way home from work? [¶] A. Yeah. I do think it exists. I do think so.” She thought she could put those incidents aside and be fair, but she did think “it’s just something that happens out there. . . . I had advised my nephews about it to make sure they have their identification and be courteous and do whatever they're told.”
D’s brother had been killed by an African-American at a party. He was killed by the husband of her brother’s girlfriend; the killer also shot the girlfriend and the girlfriend’s sister. The brother of a friend of D shot someone during a drunken confrontation and was convicted: Although D thought the public defender had not done a good job, she thought the outcome was fair since the friend’s brother had been guilty.
Without hearing argument the trial court stated that D had lost her brother to a vicious murder and had had experience with racial profiling, therefore she was “a controversial juror.” The prosecutor gave an explanation, even though the court found no prima facie case had been made, referring to the incident where D was riding in a car that was followed by the police, and that she had heard of her nephew or friends “being hassled . . . . Uh, I think her actual comment was that, uh, she told her nephew, this is how it goes for young black brothers. I’m going — [¶] THE COURT: That’s correct. I remember that phrase.” The prosecutor was going to have a White gang expert, a detective, “and my fear is that - her own personal experiences are going to weight those tables and that she is not going to be able to fairly judge” the expert’s testimony. He also referred to the incident where D thought a guilty person’s attorney did a poor job of defending him: The prosecutor did not want D thinking one of the defense attorneys in this trial was doing a poor job and “trying to make up the difference. So for those reasons, and not for reasons of race, I excused her as a juror.” (Italics added.)
The original reporter’s transcript omitted the word “not” which we have italicized in the last quotation and Davis’s opening brief understandably proceeded on the basis of an admission of racial bias. After that brief was filed the reporter corrected the transcript to insert the word “not” which vitiates part of the defense briefing.
In the reply and supplemental briefs defendants argue D’s experience with racial profiling, the prosecutor’s plan to have a White detective testify about gangs and the fact D heard “a friend’s opinion that a public defender did not do an adequate job defending a black client” do not provide race-neutral justifications for the challenge. This argument proceeds from a flawed understanding of “race-neutral” in this context. Where a juror indicates he or she cannot or may not fairly assess the evidence because of the juror's racial views, a prosecutor’s decision to challenge that juror may, indeed, be grounded on racial considerations, but that does not mean the challenge is improper. The prosecutor must be “race-neutral” in that he or she may not implement racial views or assumptions when making challenges, but that does not mean he or she should ignore the racial views or assumptions of jurors. Indeed, it is the prosecutor’s duty to challenge any juror the prosecutor believes cannot or may not be fair, including jurors who may be unfair because of the juror’s racial views.
Defendants also assert the Attorney General and the prosecutor mistakenly rely on a claim that the juror said something like “this is how it goes for young black brothers,” regarding racial profiling. The trial court recalled that she had made such a statement and it is contained in the reporter’s transcript.
Finally, although in her voir dire, D testified she could be fair, this does not change the fact that the prosecution believed she could not. Nothing in the authorities cited by defendants compels a prosecutor to believe any portion of a juror’s testimony when making the highly subjective decision to strike the juror.
C. Prospective Juror O (No. 227)
As stated earlier, defendants concede a race-neutral justification for challenging O existed. Nowhere in their briefs—including their supplemental briefs—do they explain anything about O, including the nature of the concededly neutral justification. As the trial court stated, she had been the victim of domestic violence and attempted to recant, but her boyfriend had been prosecuted—in Sacramento County—against her wishes; accordingly, the trial court ruled the challenge “is very clear and understandable on its face without a lot of explanation.” In such circumstances, any argument about O on appeal is forfeited, because defendants have failed to provide an adequate factual statement regarding her challenge. (See Gidney, supra, 10 Cal.2d at pp. 142-143.) Moreover, the only argument made is that if we sustain the trial court’s rulings as to Jurors K and D, the fact that O, too, was challenged makes it mathematically unlikely that all the challenges were innocent and we should conclude a pattern of bias existed. (See People v. Gore (1993) 18 Cal.App.4th 692, 705 [“pattern of systematic exclusion”].) The terms “pattern” or “systematic” bias can mislead because even a single challenge is improper if based on race. (See Reynoso, supra, 31 Cal.4th at p. 927, fn. 8.) Defendants are trying to show a practice of bias in order to infer improprieties in individual challenges. But the attempt to show a practice fails for lack of any proven individual instances of bias. Defendants have failed to show any improper exercise of race-based peremptory challenges.
II.
Defendants contend it was improper to have multiple escort officers in the courtroom. As we explain, no proper objection was lodged and in any event the claim lacks merit. In general, “we review the court’s decisions regarding security measures in the courtroom . . . for an abuse of discretion.” (People v. Ayala (2000) 23 Cal.4th 225, 253 (Ayala).) Also, “Unless [armed guards] are present in unreasonable numbers, such presence need not be justified by the court or the prosecutor.” (People v. Duran (1976) 16 Cal.3d 282, 291, fn. 8.)
During voir dire the trial court told the jury:
“[I]t’s probably no secret in the courtroom that there are escort officers in the courtroom. That’s because the defendants are in custody. They face very serious charges. And it’s rare, if ever, that a defendant is placed on bail on an attempted murder charge. And so they’re in custody. But that doesn’t mean they’re dangerous. It is absolutely no evidence of their guilt. And it should not be considered by any of you for any purpose whatsoever. That would be very, very unfair to the defendants given that our protocol requires escort officers for our in custody defendants.”
A similar admonishment was given later. Outside the presence of the jury, the trial court established by a conversation with the bailiff on the record that Davis, Lands and McCullough were in leg irons and belly chains secured to their chairs, but Boyd and Johnson were not restrained. No defendant would wear shackles during trial and the belly chains would be covered with a skirt at the defense table. The belly chains were due to “major” jail infractions.
One attorney requested that the defendants be allowed to stand for introductions, and otherwise left in restraint chairs, but apparently he did not want to do this if it would mean having too many extra guards present. As the trial court clarified, if “too much security would be needed” “I think what Mr. King is saying let's forget it, because we start getting too many bailiffs in here, it makes it far more intimidating and prejudicial to the defendants, makes them look terribly dangerous with a courtroom filled with black suits with stars on their chest.”
After discussion of the protocol with the bailiff on the record and with counsel off the record the court explained that there were five deputies in the courtroom already (including the bailiff) and if no defendants were restrained, protocol would require four more: One for each of the five defendants, plus three as a reserve force (“one in the back and two in the front”) plus the court's bailiff (also a deputy) for normal bailiff duties. When the court went back on the record it ruled that introductions could be done with each prospective jury panel. The court also found the defendants were wearing jail identification wristbands, akin to hospital wristbands, but that they were “indecipherable” to the court.
Defense counsel suggested that the jury be told the defendants were in custody because they could not make bail. The court agreed that it would be obvious to the jury that defendants were in custody and it was like “trying to hide an elephant in a small room.” Later all counsel waived reading of “security write-ups” by the jail.
The trial court stated it would tell the jurors defendants were in custody because bail was not available, and that escort officers were a standard procedure. The trial court ruled that all defendants would be in “restraint chairs” hidden by skirting, and that only three deputies would be required to escort five defendants, which was fewer than normal.
At one point during trial there was an extra officer present. After McCullough’s mistrial motion was granted, no record of any change in the number of officers was made.
At the conclusion of the trial the court instructed:
“The fact that a defendant is in custody or has an escort officer in court must not be considered by you for any purpose. They are not evidence of guilt and must not be considered by you for any purpose whatsoever. In determining the issues in this case, disregard this matter entirely.”
On appeal defendants analogize to cases involving the wearing of jail clothing or the use of visible shackling. For example, the use of jail clothing reveals a defendant’s custodial status; normally that is a fact irrelevant to guilt or innocence, and one which may cause jurors to disbelieve a defendant unfairly or otherwise view him with disdain. (See People v. Taylor (1982) 31 Cal.3d 488, 494.)
However, defendants acknowledge authority that the presence of extra security officers or precautions does not of itself cause prejudice. “While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence.” (Holbrook v. Flynn (1986) 475 U.S. 560, 569-571 [89 L.Ed.2d 525, 534-536]; People v. Jenkins (2000) 22 Cal.4th 900, 998-999 [“at least three officers were the minimum number sufficient to provide security in a joint trial of two incarcerated defendants”; “no indication that defendant was prejudiced by the occasional presence of one or two uniformed bailiffs beyond the number constituting the bare minimum necessary to provide security”]; see also People v. Duran, supra, 16 Cal.3d at p. 291, fn. 8.)
There is no meaningful distinction between these authorities and the instant case and, therefore, we find no abuse of discretion.
Defendants assert the jury would not believe the extra precautions were designed to maintain order in general or lend solemnity to the trial, because here the officers were specifically linked to securing the defendants and the trial court specifically so instructed the jury, explaining that protocol required escorts for in-custody defendants, improperly emphasizing their in-custody status.
Defendants effectively concede they did not make this objection in the trial court but argue an objection was not necessary because the trial court acted pursuant to a protocol and therefore any objection would have been futile. They point to comments by one defense attorney who asked whether so many officers were needed, before the trial court ruled that only three would be used, and the same counsel mentioned later in trial that an extra officer was present. Neither passage reflects an adequate objection to the use of escort officers, as framed by the claims on appeal. To the extent defendants claim a clear objection would have been futile, we disagree. The trial court had the inherent power to control the proceedings and in the face of a persuasive objection could have considered other options to avoid or minimize the impression that each defendant had a specific minder. The fact that there was a sheriff’s protocol did not mean the trial court lacked the ability to minimize its impact, had an objection been lodged. Therefore, the failure to object forfeits the contention of error. (People v. Taylor, supra, 31 Cal.3d at pp. 495-496; People v. Duran, supra, 16 Cal.3d at p. 289.)
Defendants assert the failure to make an adequate objection reflects incompetence of all trial counsel. They assert there was no plausible tactical reason for not objecting. (See People v. Johnson (1989) 47 Cal.3d 1194, 1251.) To the contrary, as the Attorney General points out, the trial court concluded that three officers for five defendants was fewer than usual and trial counsel (all of whom were experienced criminal practitioners) presumably knew the normal ratio.
Moreover, as the Attorney General points out, defendants fail to show an objection would have been meritorious, a necessary component of their claim of incompetent trial counsel. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) It would be absurd to assert that no officers should have been employed to watch over five in-custody suspected gang members facing attempted murder charges. Once it is conceded some officers were necessary, the number falls largely within the trial court's discretion. Three deputies in a criminal courtroom watching five in-custody defendants facing a charge of attempted murder does not show an abuse of discretion. Further, the jury was instructed that the officers were there as part of a protocol and not because the defendants were dangerous. (Cf. Holbrook v. Flynn, supra, 475 U.S. at pp. 571-572 [89 L.Ed.2d 525, 536] [“were we able to discern a slight degree of prejudice attributable to the troopers’ presence at respondent’s trial, sufficient cause for this level of security could be found in the State’s need to maintain custody over defendants who had been denied bail”].)
Finally, as the Attorney General points out, the jury was not inflamed against defendants: The gang allegations were not sustained, no defendant was convicted of attempted murder, and one defendant was acquitted. This does not reflect a jury so fearful of loosing dangerous men on society that it cannot follow the trial court’s admonitions.
III.
Defendants contend the prosecutor committed misconduct at various points during the trial. We address the claims seriatim and conclude no reversible error took place.
A. Vouching for a witness.
A prosecutor may not vouch for witnesses or bolster their credibility by referring to facts outside the record. “However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching.” (People v. Frye (1998) 18 Cal.4th 894, 971 (Frye).)
During opening statements the prosecutor stated Andre Campbell was “testifying with immunity, which means that he can’t be prosecuted for anything that he says on the stand. And that is just logical because . . . if we want him to tell the truth, then we have to give him free rein to tell everything.” After a vouching objection was lodged the trial court told the prosecutor not to argue during the opening statement and later admonished the jury that Campbell’s credibility was for the jury to decide and immunity “doesn’t necessarily make him credible.” This comment in opening statement was not vouching, and in any event, the admonition was adequate to correct any error: We presume jurors will follow a trial court’s instructions and admonitions. (See People v. Powell (1960) 186 Cal.App.2d 54, 59.)
During closing argument the prosecutor contended Campbell was believable because he had a “contract” to tell the truth and if the prosecutor thought Campbell was not being honest, “I get to pull the plug.” Another vouching objection was lodged and the trial court instructed the prosecutor: “Be careful that you don’t personally vouch for one of the witness’s credibility, Mr. Solomon. I know you didn’t mean to do that. Clear that up.” Absent further objection the prosecutor argued he was rebutting a defense argument that the People were stuck with Campbell and again stated if Campbell broke the contract “we pull the plug.” He argued the contract gave Campbell an incentive to be honest.
On appeal defendants point to these snippets of the prosecutor’s argument but fail to place the remarks in context. Wholly absent from defendants’ brief is any description of the defense argument the prosecutor claimed to be rebutting. Defendants do not have to believe he meant to rebut their arguments and do not have to believe that made his argument legitimate, but to ignore the context of the prosecutor’s claimed improper argument does not help persuade us of the merits of their claim on appeal. Otherwise, improper arguments may be fair if made in response to a defense argument. (People v. Cunningham (2001) 25 Cal.4th 926, 1026; People v. Hill (1967) 66 Cal.2d 536, 560-562 [“A resolution of the issue presented requires that we consider the remarks claimed to be improper in the context in which made”; “a prosecutor is justified in making comments in rebuttal, perhaps otherwise improper, which are fairly responsive to argument of defense counsel and are based on the record”].) We have reviewed the arguments and conclude that given the defense arguments, the prosecutor did not improperly vouch for Campbell, as we now explain.
One defense attorney argued Campbell came up with a story and convinced the police to follow it. Another argued “The D.A. gets to decide who to grant immunity to and who not to. . . . If it benefits him, he can grant immunity.” Campbell changed his story, but “When Mr. Campbell and Mr. Solomon [the prosecutor] make that deal, Mr. Solomon knew who he was making the deal with, and he can’t now say, Gee, I knew you were a snake and I made the deal.” In other words, the prosecutor was committed to Campbell’s version. Another attorney also argued Campbell was a liar and that the prosecutor “marries this guy Mr. Campbell. And everything that Campbell is he’s going to try to justify now. But he can’t do it. He can’t do it because it’s not true.”
Thus, the defense theme was that the police and the prosecutor had locked themselves into following Campbell’s version, regardless of the facts, and that Campbell was a liar. Thus, after the trial court asked the prosecutor to clarify, the prosecutor explained: “My comment is this. It has been said by defense counsel that I am stuck with him. That whatever he says I just have to accept it. All right. It’s fair comment for me to rebut that with the obvious. That it’s in the contract that if we don’t think he’s being honest and truthful, we pull the plug. All right. Nobody is stuck with Andre Campbell. Nobody is. I won’t vouch.” He then argued that the immunity contract gave Campbell an incentive to be honest.
When the prosecutor’s challenged remarks are read in context, we agree with the Attorney General that no improper vouching took place. The remarks were based on facts in the record, that Campbell by contract had an incentive to be honest, and were a fair reply to the defense claim that the contract meant the prosecutor was unable to disavow Campbell regardless of Campbell’s honesty. (See People v. Cunningham, supra, 25 Cal.4th at p. 1026; Frye, supra, 18 Cal.4th at pp. 971-972.)
B. Violating in limine rulings.
Defendants contend the prosecutor violated in limine rulings. We find no basis for reversal.
1.
In limine ruling No. 32, pertaining to gang evidence, reads in part: “Expert can testify that a fistfight in gang territory ‘can lead to more than a fistfight’ . . . but cannot opine that a shooting is common (no foundation). Expert witness can relate anecdotes about a particular gang fight that lead to shooting, and the jury can draw reasonable inferences (and counsel can argue) therefrom.”
During opening statement the prosecutor stated he would pose a hypothetical question to his expert, Detective Haynes, who would opine that the shooting was a likely result of the fight. The defense objected and the trial court admonished the jury that Haynes would not testify “that this shooting was the natural and probable consequence of the assault” but would explain his expertise and answer hypothetical questions, but it would be up to the jury to determine “whether, in fact, the shooting was a natural and probable consequence. [] Haynes can furnish you lots of information that allegedly will help you make that determination, but it’s your determination to make, not his.” The prosecutor apologized and said that he would ask Haynes hypothetically whether a shooting was a likely result of the fight.
The argument did not violate the in limine ruling. The earlier arguable misstatement could not have confused the jury, which presumably understood the clarification. (People v. Smithey (1999) 20 Cal.4th 936, 961 (Smithey).)
2.
In response to a hypothetical question, Detective Haynes testified to his opinion that a shooting was “a likely outcome” of the assault. Defendants concede they interposed no objection to this testimony. Therefore, they cannot assert on appeal that it amounted to misconduct. (People v. Ochoa (1998) 19 Cal.4th 353, 427-428.)
3.
In limine ruling No. 41 states “Campbell is permitted to testify that defendant Davis solicited him to participate in a ‘lick’ (robbery) on the evening of December 31, 2001 but . . . is not permitted to opine that a gun was going to be used in the robbery, nor that other defendants knew of a gun.”
Defendants do not present the context of the challenged passage of the prosecutor’s questioning on this point.
Campbell testified that on the afternoon of the shooting he saw Boyd with a .357 revolver that Campbell owned but that Boyd, with whom he lived, often carried. On cross-examination he testified that when the “lick” was discussed, no guns were shown or mentioned, but that he had seen the outline of a gun “earlier in the afternoon.”
On redirect, the prosecutor asked about the discussion of the “robbery” and the defense objected because Campbell used the word “lick”; the trial court replied, “He called the lick a robbery. I think it’s a fair question. Objection’s overruled. Why don’t you call it a lick because the jury—everybody understands it to be a lick.” When the prosecutor asked what a lick was counsel objected that “it’s his opinion,” and the trial court agreed but overruled the objection. The prosecutor asked “a lick, from what you understand that term to mean, is that a particular type of robbery? A. I would believe it’s a robbery at gunpoint, yes.”
The trial court struck this answer in response to a prompt defense objection and told the jury to disregard it, in part stating, “this witness has not been involved in an armed robbery as an Eastside Piru Blood, and while he may have some opinion that a robbery is an armed robbery, I think that gets him out on a limb of speculation and guesswork to some extent.” After some colloquy with counsel the court told the jury “ignore the witness’s answer that a lick means armed robbery; however all his previous answers by both the prosecution and the defense that a lick is a robbery will stand.”
In context it does not appear that the prosecutor was intentionally trying to bypass the in limine ruling. Further, defendants offer no reason why the jury would not understand and obey the trial court’s prompt admonition. We presume it did. (Smithey, supra, 20 Cal.4th at p. 961.)
4.
In limine ruling No. 32 in part allowed expert testimony “that gangs have a leader or ‘shot-caller’, but expert cannot identify the ‘shot-caller’ in this case. Witness Campbell can testify anecdotally that a particular defendant was, in his experience, frequently (or always) the ‘shot-caller’ in gang activities.” Campbell testified Davis was a shot-caller and due to a defense objection, the trial court clarified for the jury that this was Campbell’s opinion, or state of mind, “You will not, however, consider any opinion by Mr. Campbell or any inference that [Davis] was the shot caller on the evening of December 31st, 2001. [¶] That is an issue that’s subject to your determination as a jury. And I’m not going to let this witness opine about that. But he can opinion, that is give you opinions, about whether in his view Mr. Lamar Davis was a shot caller for the Eastside Piru Bloods.” A similar admonishment was repeated later.
Detective Haynes testified a gang member becomes a shot-caller by earning respect, such as by “being incarcerated, committing violent acts, being feared, using fear and intimidation.” Upon objection, the trial court struck the answer “about how someone . . . becomes a shot caller, including having committed violent acts and being incarcerated. Strike that portion of the answer, but that portion of the answer that defines a shot caller as someone who has a high level of respect in the gang will remain.”
On appeal Davis asserts that because Campbell named Davis as a shot-caller, the testimony by Haynes “reasonably caused jurors to believe appellant had been incarcerated in the past, perhaps more than the average gang member, as a means of ascending to shot-caller status.” This claim was fleshed out in the trial court at length. Eventually the trial court stated “the jury just didn’t fall off the turnip truck yesterday. They really realize that you get respect in a criminal street gang by being more violent and tougher than the others. So I don't think this takes a lot of testimony from Mr. Haynes or anybody else for the jury to make that inference. [¶] And we can do that without painting Mr. Davis as a con, that is an inmate of some kind. That was my only concern . . . . [¶] But by the same token I think the jury needs to understand that a shot-caller is a person who’s making the calls, making the decisions for the gang based upon the fact that they have more respect within the gang. . . .” After further colloquy the court denied a mistrial motion. A later motion along the same lines was also denied.
To the extent defendants raise this as a claim of prosecutorial misconduct, Campbell’s testimony did not violate the in limine ruling. Nor did Haynes’s testimony. We agree with the trial court that its admonition was adequate to alert the jury to the proper use of Campbell’s testimony, which the trial court pointed out was explored with “more thorough and extensive cross-examination than any witness I’ve seen on the witness stand.” In any event, there was no prejudice. Campbell was thoroughly impeached and the jury rejected the gang allegation, indicating it found Haynes’s testimony unpersuasive as to that issue.
Defendants, by implication in a footnote, challenge the introduction of “shot-caller” evidence, claiming the trial court misapplied the very precedent it relied on to admit the evidence. This claim is not headed as an argument (cf. Cal. Rules of Court, rule 8.204(a)(1)(B)), and in any event lacks merit. Expert opinion testimony that a person was a shot-caller as to a particular crime was held to be “rank speculation” in People v. Killebrew (2002) 103 Cal.App.4th 644, 651, footnote 6. That does not mean testimony that a person has shot-caller status in a gang is inadmissible. Courts allow the introduction of evidence of gang hierarchy where relevant to an issue in the case. (E.g., People v.. Williams (1997) 16 Cal.4th 153, 193-194 [leadership role]; United States v. Rodriguez (7th Cir. 1991) 925 F.2d 1049, 1053-1054 [evidence person was “a mere soldier” and therefore likely to obey orders]; United States v. Easter (9th Cir. 1995) 66 F.3d 1018, 1020-1021 [evidence linking members “to the mastermind”].)
5.
After Detective Haynes opined that Lands was a member of the gang, he was asked the basis for that opinion. He mentioned Lands was associated with a gang apartment building, wore gang colors, associated with admitted gang members “And the other one I don’t know if I can bring up. [¶] Q. Did he admit he was an Eastside? [¶] A. Yeah, he admitted. And the other one I can't bring up in court.”
Upon objection the trial court told the jury that certain things were ruled inadmissible by the court and the jury should not conclude the parties were hiding anything from them, and should not assume anything from Haynes’s remark.
To the extent Haynes’s comment was improper, it does not appear it was anticipated by the prosecutor and in any event he did not actually give any improper evidence, he merely raised a specter about the existence of inculpatory facts not in evidence—a specter promptly exorcised by the trial court. Most importantly, the testimony pertained to Lands who is not an appellant in this proceeding, and we fail to see how the comment could have prejudiced Boyd or Davis in any way.
C. Mentioning facts not in evidence.
During closing argument the prosecutor was discussing the natural and probable consequences doctrine and stated in part, “you know, the idea there is that we get to a point in our society [where] you pick up a newspaper and you go, here it is again. Okay. Where essentially the surprise is gone for us. All right. You read about a gang fight that erupts into a shooting and somebody dies, and you say to yourself I’m not surprised.” Upon prompt objection the trial court instructed the jury to treat this as “rhetoric, Mr. Solomon’s merely trying to make a point with an anecdote. Whether the anecdote applies you, the jury, will decide.” Later, one of the defense attorneys argued he had subscribed to the Sacramento Bee for many years and from that he concluded only a few gang fights “escalate” into shootings.
Generally, “a prosecutor ‘“may state matters not in evidence that are common knowledge, or are illustrations drawn from common experience, history, or literature.”’” (People v. Cunningham, supra, 25 Cal.4th at p. 1026.) We agree with the trial court that the prosecutor’s comment fell within legitimate argument and was not an invitation to the jury to consider facts not in evidence.
D. Cumulative Error.
A number of instances of individually harmless prosecutorial errors may cumulate in effect and result in an unfair trial. (See, e.g., People v. Purvis (1963) 60 Cal.2d 323, 347-348; People v. Herring (1993) 20 Cal.App.4th 1066, 1075-1077.) This is not such a case.
This was a long and complex trial with multiple defendants represented by zealous counsel. Without reiterating the above discussion, at best the defense has shown only a few minor errors, each of which was promptly dealt with by the experienced trial judge and none of which were of the sort that would cumulate in effect.
Such isolated errors do not establish fundamental unfairness under federal due process principles nor any prejudice under California law. (See Smithey, supra, 20 Cal.4th at p. 961 [isolated improprieties do not amount to a federal due process violation, only a state-law violation].) We reject the claim of cumulative error.
IV.
Davis contends his prior juvenile adjudication for robbery with use of a firearm could not be used as a strike because he was not entitled to a jury trial in that proceeding.
He relies on a divided Ninth Circuit decision and a dissenting opinion in a California Court of Appeal decision. (U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe) (opn. of Fisher & B. Fletcher, JJ.; dis. opn. by Brunetti, J.); People v. Smith (2003) 110 Cal.App.4th 1072, 1082-1118 (dis. opn. of Johnson, J.); see also People v. Lee (2003) 111 Cal.App.4th 1310, 1319-1323 (dis. opn. of Rushing, P.J.).)
The majority of courts have rejected the Tighe analysis. At bottom, Davis had a right to a jury trial in this proceeding to determine the truth of the juvenile “strike” — a right he waived — and that prior adjudication occurred with adequate constitutional safeguards. (See U.S. v. Jones (3d Cir.2003) 332 F.3d 688; U.S. v. Smalley (8th Cir.2002) 294 F.3d 1030; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee, supra, 111 Cal.App.4th 1310; People v. Smith, supra, 110 Cal.App.4th 1072.) We have rejected the Tighe analysis before (see People v. Palmer (2006) 142 Cal.App.4th 724) and adhere to our view.
V.
Boyd contends the trial court should have admitted statements of a witness tending to inculpate Davis, and makes the related claim that trial counsel was incompetent because he neither moved to sever Boyd’s trial nor sought a limiting instruction, either of which, in Boyd’s view, would have led to the admission of the exculpatory testimony.
Boyd’s attorney learned in the courtroom during this trial that Voreece Taylor had something to report and on March 17, 2003, Boyd’s investigator, Lionell Hammond, spoke with her. She claimed that the day after the shooting, at a rock concert, she heard Davis brag about shooting the victim, and Hammond “would testify that he understood the bragging to be in the singular and not in the plural . . . .” Boyd’s attorney disclosed this to the prosecutor, who had his investigator, Teresa Kahl, talk to Voreece Taylor on March 18, 2003: On that day Voreece Taylor “was very clear with our investigator that what Mr. Davis said was that we shot a guy last night at the 7-Eleven. And it was her overhearing him speak to someone else.”
Initially the prosecutor sought to introduce the “we” statement into evidence, relying on an unpublished opinion of this court decided just after this alleged statement was revealed to the parties. The trial court was inclined to exclude the evidence because it would inculpate the other defendants and they would be unable to cross-examine Davis, the nontestifying declarant; some of the other defendants agreed with the trial court’s view, but Boyd did not: Boyd wanted Voreece Taylor to testify, because she would either testify Davis admitted personally shooting her brother, or she would be impeached by her prior statement; either would tend to show Boyd was not the actual shooter.
The trial court denied the prosecutor’s motion, ruling the evidence would run afoul of the Aranda-Bruton rule: In connection with the other evidence, specifically, the film, the otherwise vague reference to “we” would be tied directly to the other defendants, and they would have no way to compel Davis to submit to cross-examination, and redacting the statement to have Davis saying “I” would be misleading. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] [generally, confrontation clause prohibits introduction of nontestifying codefendant’s statement implicating the defendant]; see People v. Fletcher (1996) 13 Cal.4th 451, 455-456 [if statement can be redacted to eliminate reference to codefendant, it may be admitted]; People v. Schmaus (2003) 109 Cal.App.4th 846, 855.)
This ruling was correct and is not challenged on appeal. “The United States Supreme Court concluded in Bruton v. United States, supra, 391 U.S. at page 125 [] that admission of extrajudicial statements of a codefendant in a joint trial violated the nondeclarant’s right of cross-examination secured by the confrontation clause of the Sixth Amendment even though the statement was received only against the declarant. The court reasoned that limiting instructions, while useful in many situations, cannot adequately ensure that the jury will not use this evidence in deciding the case of the nondeclarant.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 331.)
Boyd’s counsel tried to call Voreece Taylor to testify for the defense, but the court indicated that the “I” statement would allow impeachment with the “we” statement and therefore the Aranda-Bruton problem would remain.
Before addressing Boyd’s claims, we emphasize what he does not claim: He does not challenge the trial court’s Aranda-Bruton ruling, nor does he claim the statement could have been redacted to avoid the confrontation clause problem.
One of Boyd’s headed claims argues that Davis’s alleged statement was a declaration against penal interest and therefore admissible “as a hearsay exception.” Another argues the investigator’s testimony would be admissible if Voreece Taylor contradicted it on the stand. The trial court did not rule otherwise as to either of these claims and neither of them avoids the Aranda-Bruton problem.
Boyd’s principal argument relies on Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). We agree with the Attorney General that this claim has been forfeited for lack of intelligible argument. (People v. Turner, supra, 8 Cal.4th at p. 214, fn. 19; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581, 608.) However, we will address the argument as best we can.
“Prior to Crawford [supra, 541 U.S. 36 [158 L.Ed.2d 177]], the admission of a hearsay statement under a firmly-rooted exception to the hearsay rule or when there were indicia of reliability did not violate a defendant’s right of confrontation. (Ohio v. Roberts (1980) 448 U.S. 56, 66, 100 [65 L.Ed.2d 597 []].) After Crawford, a ‘nontestimonial’ hearsay statement continues to be governed by the Roberts standard, but the admission of a ‘testimonial’ hearsay statement constitutes a violation of a defendant’s right of confrontation unless the declarant is unavailable to testify at trial and the defense had a prior opportunity for cross-examination.” (People v. Corella (2004) 122 Cal.App.4th 461, 467; see People v. Morgan (2005) 125 Cal.App.4th 935, 946.)
Boyd argues “As applied to these facts, one wonders whether the confrontation clause would have been implicated. Crawford, supra, 541 U.S.36 [158 L.Ed.2d 177] applies only to ‘testimonial evidence,’ and it would seem that Davis’s random statement in a bar would not fit the definition of ‘testimonial evidence.’”
In the reply brief Boyd characterizes his argument as establishing that Crawford, supra, 541 U.S. 36 [158 L.Ed.2d 177] has undermined Bruton. But Crawford did not address—far less eliminate—the Bruton rule. Crawford expands a defendant’s Confrontation Clause rights by limiting the permissible scope of hearsay exceptions. (See People v. Song (2004) 124 Cal.App.4th 973, 981-984 [statement by codefendant to police violated Song’s rights under Aranda-Bruton and Crawford because limiting instruction could not prevent jury from using the statement against him].) Further, as Boyd himself emphasizes, Crawford applies to and only to testimonial hearsay, such as prior statements under oath or to the police. (See People v. Giles (2007) 40 Cal.4th 833, 841 [victim’s statement to police]; People v. Cage (2007) 40 Cal.4th 965, 970-971; People v. Morgan, supra, 125 Cal.App.4th at pp. 946-947 [an “informal statement made in an unstructured setting does not resemble the police interrogation of concern in Crawford”]; People v. Corella, supra, 122 Cal.App.4th at pp. 467-468.) Boyd fails to explain how Crawford applies to Davis’s alleged offhand statement (apparently a brag to a companion at a rock concert) and, indeed, seems to argue it does not apply to that statement. Concluding the statement was not “testimonial” does not mean, as Boyd infers, that Davis’s codefendants “would have had no right to confront Davis about this statement” such that Bruton concerns would not be triggered.
In isolated parts of the opening brief, under the “penal interest” and “prejudice” headings, Boyd intimates that the trial court should have ordered his trial severed. For example, under the “prejudice” section he states “even if” the ruling was correct when made, “in light of Crawford one has to wonder about the validity of the trial court’s concerns. And even if the statement could not have been effectively redacted so as to not implicate two of the codefendants, the remedy should have been not to bar the testimony but to sever the cases or give a limiting instruction.”
As an appellate court we do not idly “wonder” about legal issues: We address properly-tendered material legal issues that are supported by authorities and a coherent legal analysis based on the record. (See People v. Gidney, supra, 10 Cal.2d at pp. 142-143.) It is improper to bury an unheaded argument within an argument contained under a different heading. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4; see People v. Baniqued (2000) 85 Cal.App.4th 13, 29; People v. Ladd (1982) 129 Cal.App.3d 257, 262.) Nowhere does Boyd head and argue a claim challenging the trial court’s ruling itself (other than via the rejected Crawford claim) and nowhere does he head an argument that the trial court should have severed his trial. Any such claim is forfeited.
In the reply brief, Boyd asserts that if the trial court correctly concluded the evidence could not have been redacted to protect the codefendant's rights, “the trial court still had the option of declaring a mistrial . . . and severing appellant’s case from that of the codefendants.” Boyd fails to support his assertion with reasoned analysis and authority, and arguments in the reply brief come too late. (Kahn v. Wilson (1898) 120 Cal. 643, 644; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808.)
Further, Boyd effectively concedes he never moved to sever on the ground now asserted, although trial counsel did make a veiled reference to the relative unimportance of “keeping one jury[.]” This was not a motion for severance and the failure so to move provides yet another basis for forfeiture of the claim. (People v. Mitcham (1992) 1 Cal.4th 1027, 1049; cf. People v. Greenberger, supra, 58 Cal.App.4th at p. 348.)
Nor are we inclined to visit this belated and vague severance claim under the rubric of incompetence of counsel. The record does not show why trial counsel declined to move to sever and therefore defendant cannot pursue the claim on direct appeal but is relegated to habeas corpus remedies where the relevant facts can be established. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) A plausible tactical reason for not moving to sever would be the ability to blame codefendant Davis as the real culprit, something which counsel might well conclude would be less effective at a separate trial, without Davis’s presence.
Finally, defendant cannot establish it is reasonably probable this evidence (a casual brag, as allegedly recounted by the victim's sister, who supposedly remembered the statement during trial, over one year after the concert) probably would have tipped the scales in his favor. Although the trial court did not exclude it on grounds of unreliability, it did mention the weakness of the evidence. Further, even if Voreece Taylor’s dubious “I” version of Davis’s statement were believed, it did not clearly exculpate Boyd: Under the People’s theory, impliedly accepted by the jury, Davis called the shot and therefore could claim personal responsibility for the shooting without exculpating Boyd. Even if counsel should have moved to sever, and even if the trial court would have admitted the evidence in a hypothetical separate trial, there is no reasonable probability the result would differ, a necessary component of a claim of incompetent counsel (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218), only speculation.
VI.
Boyd and Davis contend the trial court improperly imposed upper term sentences based on facts not found by the jury.
Applying the Sixth Amendment to the United States Constitution, Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury. Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) invalidated a Washington sentencing scheme somewhat similar to California’s scheme, based on Apprendi.
After normal briefing was completed in this case the California Supreme Court held that Blakely does not apply to California’s sentencing scheme (People v. Black (2005) 35 Cal.4th 1238 (Black I), and thus we rejected defendants’ Sixth Amendment claims. In their supplemental briefs, they reason that because Cunningham held Black I was wrongly decided, their upper term sentences should be reduced to the midterms.
We disagree.
A. Appellant Davis
The trial court imposed the upper term of four years for assault with a firearm, because Davis was on parole, he induced others to participate in the crime, he had served a prior prison term and his performance on probation and parole were poor. The fact that he had a prior prison term was undisputed. That recidivism fact did not have to be submitted to a jury. (People v. Black (2007) 41 Cal.4th 799, 818 (Black II); see People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) Because at least one aggravating fact was proper under Cunningham, the statutory maximum for Davis’s offense was the upper term. (Black II, supra, at pp. 813-816.) Therefore, no Cunningham error occurred as to Davis.
B. Appellant Boyd
The trial court imposed an upper term for assault with a deadly weapon because Boyd was on probation when the crime was committed. The trial court imposed the upper term on the firearm enhancement because the crime was vicious and cruel, the victim was vulnerable, and because Boyd expressed continued gang allegiance during the trial, by writing a letter to a codefendant. We will discuss these two sentencing choices separately.
1. Upper term on the offense
The fact Boyd was on probation was undisputed. Because that fact flows from a prior conviction, it falls within the recidivism exception. (See People v. Thomas, supra, 91 Cal.App.4th at pp. 222-223.) Further, even if that fact did not fall within the recidivism exception, we would find the error harmless. “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment [Cunningham] error properly may be found harmless.” (People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).)
The fact Boyd was on probation was undisputed at trial and no rational and properly instructed jury, presented with the records in Boyd’s prior case, would not have found that he was on probation on the date of the instant crimes. Therefore, even if the recidivism exception does not encompass a defendant’s probation status, any error in this case was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 474-477]; Sandoval, supra, 41 Cal.4th 825.)
2. Upper term on the enhancement
The trial court imposed the upper term on the enhancement for the following reasons: “And the fact that there was a vulnerable victim that, although he may have started this fight, clearly had no way of protecting himself from a bullet in the back and was very helpless when he was overpowered by the defendant’s codefendants, and the defendant mercilessly shot him in the back for absolutely no reason except viciousness.” This sentencing choice thus bears some resemblance to the choice made in Sandoval, supra, 41 Cal.4th 825, which we now discuss in detail.
We begin with the Sandoval trial court’s sentencing choice. Despite significant evidence of premeditation, Sandoval was acquitted of murder and convicted of two counts of voluntary manslaughter and one count of attempted manslaughter. The only crime at issue for sentencing purposes on appeal was the manslaughter of victim Dircio, whose death resulted as follows.
Early one morning Sandoval and a codefendant (Romero) worked at a bar and quarreled with two other women; Rolando Rojas broke up the altercation. Sandoval reportedly said she would have a gang kill Rojas. The next evening Sandoval and Romero drove to the bar in a van with several people, including Juan Negrete and Miguel Del Rio. Rojas, Salvador Ramirez, and Belen Dircio were also at the bar. Eventually, “While [Sandoval] was speaking with Rojas, Negrete approached the group, raised a gun, and fired several shots at Rojas, killing him. [Sandoval], Romero, and Negrete fled toward the van, which was parked down the street. [¶] When Ramirez and Dircio heard the gunshots outside the bar, they left through the back door. As the two walked through an alley behind the bar, Del Rio shot Dircio and then Ramirez with a rifle. . . . Dircio died of two gunshot wounds to the head, and Ramirez was hospitalized and treated for his injuries.” (Sandoval, supra, 41 Cal.4th at pp. 832-833.) Sandoval and Romero admitted to the police that they wanted to have Rojas beaten up and had discussed their wishes with a gang member, but both “stated they did not intend that firearms be used unless necessary for defensive purposes; both believed that at least one of the regular patrons of the bar was armed with a gun;” they told the police that as they spoke with Rojas, Negrete appeared unexpectedly and shot Rojas; Romero’s trial version of events was only partly consistent with this pretrial version. (Id. at pp. 833-835.)
The trial court selected the upper term for the manslaughter of Dircio, as follows:
“‘It is a crime involving a great amount of violence. This was also incredibly callous behavior. Miss Sandoval had no concern about the consequences of her action. The victims were particularly vulnerable in that they were unarmed, each of them, and as to [Dircio and Ramirez], that they were taken by surprise by ambush from behind. They were inebriated, unable to defend themselves. Clearly Miss Sandoval also was the motivating force behind these actions. Her actions showed planning, premeditation . . . specifically how the bar was approached, where the car was parked.’” (Id. at p. 837.)
The trial court’s reliance on these factors, neither admitted by the defendant nor established by the jury verdicts, violated Cunningham, but the California Supreme Court went on to apply the following test: “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
In applying this test the court cautioned that because the aggravating factors were not directly at issue at the trial, Sandoval “did not necessarily have reason—or the opportunity—during trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense.” Further, had the significance of the aggravating facts been known, trial counsel’s strategy might have differed, such that “a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury.” (Sandoval, supra, 41 Cal.4th at pp. 839-840.)
Of particular relevance is the following passage:
“Additionally, to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. The sentencing rules that set forth aggravating circumstances were not drafted with a jury in mind. . . . It has been recognized that, because the rules provide criteria intended to be applied to a broad spectrum of offenses, they are ‘framed more broadly than’ criminal statutes and necessarily ‘partake of a certain amount of vagueness which would be impermissible if those standards were attempting to define specific criminal offenses.’” (Sandoval, supra, 41 Cal.4th at p. 840, italics added.)
After discussing some other aggravating facts used by the trial court in Sandoval, the California Supreme Court addressed the trial court’s use of the victim’s vulnerability, as follows:
“In imposing the upper term sentence, the trial court also concluded the victims were particularly vulnerable in that they were unarmed and taken by surprise. The record, however, does not reflect such a clear-cut instance of victim vulnerability that we confidently can conclude the jury would have made the same findings, as might be the case if, for example, the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable. The evidence was contested as to whether defendant—who had been injured two days earlier at the bar—planned to take the victims by surprise, or instead had brought Negrete and Del Rio along for the purpose of self-defense and herself was surprised when they initiated an attack. In addition, both defendant and Romero told the officers, during their interviews, that they believed some of the patrons at the bar were armed, and Romero testified to that effect at trial. Accordingly, the evidence that the victims were particularly vulnerable cannot be characterized as overwhelming or uncontested.” (Sandoval, supra, 41 Cal.4th at p. 842, italics added.)
In this case the victim was shot in the back by one person while he was struggling with another person. There was no claim of self defense or defense of others and no dispute about the facts of the shooting itself. In our view, a person who is struggling with another person and is shot in the back by a third person is “obviously and indisputably vulnerable.” (Sandoval, supra, 41 Cal.4th at p. 842.) In our view any rational and properly instructed jury would find beyond a reasonable doubt that the victim in this case was particularly vulnerable.
Further, on these facts there is no reason to suppose that the defense strategy or evidence would have been any different, had the issue of victim vulnerability been pleaded and submitted to the jury for determination. Boyd’s defense was that someone else shot the victim. He did not dispute that the victim was shot in the back while struggling with another person; indeed, the shooting was filmed and the fact the victim was struggling with one person while he was shot in the back by another was as a practical matter unchallengeable. Because the fact that the victim was vulnerable was not disputed, and would not have been disputed had the significance of the point been known at trial, the error by the trial court in using that factor was harmless beyond a reasonable doubt.
Because we conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, supra, 41 Cal.4th at p. 839.)
DISPOSITION
The judgments are affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.