Opinion
E070456
12-14-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCUS COLUMBUS EUGENE et al., Defendants and Appellants.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant, Marcus Columbus Eugene. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant, Fard Muhammad. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1770138) OPINION APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Affirmed in part, reversed in part with directions. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant, Marcus Columbus Eugene. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant, Fard Muhammad. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Marcus Columbus Eugene and Fard Muhammad (collectively defendants) of premeditated first degree murder (Pen. Code § 187, subd. (a); unlabeled statutory references are to this code), active participation in a criminal street gang (§ 186.22, subd. (a)), and possession of a firearm by a prohibited person (§§ 29800, subd. (a)(1), 29805). The jury also found true firearm and gang enhancement allegations as to the murder conviction. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d), (e).) Defendants were each sentenced to 52 years to life in state prison.
On appeal, defendants contend that the record does not contain substantial evidence that (1) it was physically possible for either of them to have shot the victim, (2) the murder resulted from premeditation and deliberation, and (3) each defendant personally discharged a firearm causing death, as they claim the jury found based on the verdict forms. Defendants further challenge the jury instruction on the gang enhancement allegation and an evidentiary ruling on gang-related evidence. Eugene also claims that the firearm possession conviction is not supported because he did not commit one of the prohibited enumerated offenses in section 29805. We agree with Eugene about the firearm possession conviction and reverse his conviction on that count. We also order correction of certain clerical errors in the abstracts of judgment, but we otherwise affirm.
BACKGROUND
A. The House Party and the Shooting
Late in the evening of March 5, 2016, Eugene, Muhammad, and several of their friends attended a party at a house located at 8120 Sunset Rose (the party house) in Riverside County. Earlier that night, the group had attended another party at a hotel. While at the hotel party, Eugene and his friend TJ asked others at the party "where they were from" and announced that they (Eugene and TJ) were "Colton Crip." When Eugene, Muhammad, and their friends left the hotel party, they gathered in the parking lot to determine who would ride in which car to the house party. While in the parking lot, Eugene and Muhammad each moved a gun from some other car into Sheldon Bruce's car. Eugene regularly took a gun with him when attending parties, which he did nearly every weekend, and he stored the gun in a vehicle during the party. Eugene rode with Bruce to the house party, and Muhammad rode with another friend, Keisha.
We refer to the victim and witnesses by their first names, with or without last initials, to preserve their anonymity. (Cal. Rules of Court, rule 8.90(b).) No disrespect is intended.
Bruce was originally charged with murder as a codefendant, so we refer to him by his full name. In exchange for his testimony against Eugene and Muhammad, Bruce pled guilty to being an accessory after the fact and admitted a gang enhancement for which he was sentenced to a total of five years in prison.
The party house was located on a street that ends in a cul-de-sac. The street runs north-south, with the cul-de-sac at the north end of the street and the street sloping uphill toward the cul-de-sac. The party house is on the east side of the street, is the fourth house from the nearest intersection (counting the house on the corner), and is the last house before the street widens into the cul-de-sac. The party house's southern neighbor is 8134 Sunset Rose, and the house across the street (and slightly to the north) from 8134 Sunset Rose is 8125 Sunset Rose.
Before entering the party, Muhammad told Eugene that Eugene did not need to take his gun into the party because Muhammad was carrying his gun. Bruce thought that Eugene had a .40-caliber gun. Eugene left his gun in the trunk of the car. Brothers Antonio W. and Armando W. met Eugene, Muhammad, and the rest of their friends at the house party. At some point during the party, a male stranger to the group asked Eugene "where he was from," meaning which gang. Eugene responded, "Colton City Crips." A verbal altercation between Eugene and the other man ensued, which was followed by a physical fight that started with the other man pushing or attempting to punch Eugene. Eugene, Muhammad, and some of their friends, including Antonio and Armando, joined in the fight, which one friend described as them all "jumping the big dude." During the fight, Muhammad pulled out his gun and held it behind his body.
There was conflicting testimony about whether Armando was involved in the fight and whether Muhammad was just an onlooker.
Less than one minute after the physical fight started, a friend of the party's host, Joseff C., broke up the fight, and he and others pushed the combatants and other partygoers out of the house. Joseff did not know anyone involved in the fight. Once outside, people started heading away from the party house and toward their cars. Joseff noticed two African-American men heading north, toward the cul-de-sac, and another group of approximately five men heading south. Those five men headed south were the men with whom Eugene and his friends had been fighting. No one in that group had a visible weapon.
While standing in the courtyard in the front of the party house, Joseff heard a male voice he could not identify loudly proclaim "three," "crip," and something unintelligible as people were exiting the house. Joseff then noticed that the trunk of a car parked in the cul-de-sac was open, and the two men who had headed in that direction were standing by the open trunk. Joseff turned to walk into the house and glanced back toward the cul-de-sac momentarily. He saw one man who had walked south from the cul-de-sac standing in the middle of the street in front of the party house; the man reached toward his waist and then extended his arm toward the south end of the street. Joseff immediately turned and ran.
Bruce testified that he and Eugene were the two men who walked north toward the cul-de-sac, where Bruce's car was parked. Upon arrival at Bruce's car, Eugene took his gun out of the trunk. Eugene then walked south to the opening of the cul-de-sac and started shooting. According to Bruce, Muhammad had followed Eugene and Bruce into the cul-de-sac and started firing his gun immediately after Eugene did. Bruce said that Muhammad started shooting from the top of the cul-de-sac, close to the curb in front of Bruce's car and between Bruce's car and Keisha's car, which was parked on the other side of the driveway that was in front of Bruce's car. Muhammad first fired two to three shots into the air but then lowered his weapon and fired in the same direction as Eugene, toward the south end of the street (or away from the cul-de-sac) and toward the men with whom they had fought. While firing his weapon, Eugene took "a few steps forward."
As everyone was leaving the party, Antonio and Armando headed to their car. Armando testified that their car was parked directly across the street from the party house, but he also testified that they had to walk downhill for approximately 15 to 30 seconds before arriving at the car. Armando testified that the car was parked next to a light pole and faced downhill away from the cul-de-sac. In an exhibit containing a satellite image of the street, Armando verified where he believed that the car was parked. In that image, the light pole, which appears to be the only one on the street, is across the street from the southern edge of 8120 Sunset Rose.
The record contains additional conflicting evidence about where Antonio's car was parked. In a diagram drawn by Armando and dated March 29, 2017, Antonio's car is depicted as parked farther south and not directly across the street from the party house. In a photographic exhibit of a satellite image of the street, Antonio's girlfriend pinpointed Antonio's car as being parked in front of 8125 Sunset Rose and directly across the street from the southern neighbor of the party house.
When the shooting started, Antonio and Armando were in the process of getting into Antonio's car. Armando was the passenger and thus was standing by the curbside door of the car. Antonio was standing in the street at the driver's door. When Armando heard the gunshots, he immediately dropped to the ground. He saw that Eugene and Muhammad were both firing weapons. Eugene was shooting south, down the street and away from the cul-de-sac. Eugene was standing in the middle of the street up the hill and roughly 20 feet away from Antonio. Muhammad was standing approximately 14 to 15 feet away from Armando on the curb side of a car that was parked two cars uphill from Antonio's car and on the same side of the street. Armando saw Muhammad shoot two to three shots into the air and never saw Muhammad bring his gun down, but Armando could hear that Muhammad continued firing. Once the shooting started, Armando's "eyes went to the ground," and he did not look up again until after the shooting ceased.
Neither Armando nor Bruce saw anyone other than Muhammad and Eugene shooting. Joseff crouched down when the shooting started and heard gunshots from two weapons, which he identified as a nine-millimeter handgun and a .22-caliber pistol. The gunshots sounded as if they were being fired from "[t]he general area of the street, the cul-de-sac."
When the shooting started, Antonio's girlfriend and her two friends were attempting to get into a car parked on the first cross-street south of the cul-de-sac. It sounded to Antonio's girlfriend like the gunshots were coming from somewhere up Sunset Rose, "closer to" the party house. She did not see anyone firing north, toward the cul-de-sac. The gunfire lasted approximately eight to 12 seconds.
When the shooting stopped, Bruce got into his car and picked up Eugene, who was standing in the middle of the street at the entrance of the cul-de-sac and in front of the north end of the party house. Eugene told Bruce that he had given his gun to Keisha, who drove down the street seconds before Bruce and Eugene. Sometime after Bruce and Eugene had driven away, Keisha called Bruce and "yell[ed] out on the phone that [Eugene] had shot Antonio." Bruce's phone was on speaker. Eugene at first responded, "[N]ah, I didn't shoot," and then said, "I could have."
After the shooting stopped, Armando realized that Antonio had been shot. Antonio was still alive and lying on his back in the street next to the car with his feet to the south (toward the front of the car) and his head toward the cul-de-sac. TJ and Muhammad came and helped Armando put Antonio into the backseat of the car. Armando, Muhammad, and Antonio's girlfriend drove Antonio to a hospital. Sometime after arriving at the hospital, Armando learned that his brother had died. While at the hospital, Armando attempted to contact Eugene on Facebook but was unsuccessful because Eugene had blocked him.
Antonio's death was caused by a single gunshot wound. The bullet entered Antonio's right upper back, traveled upward, and exited through his left temple. The entry wound appeared to be from a medium caliber handgun, such as a nine millimeter or a .40 caliber. The shooter was at least three feet away from Antonio and could have been any distance farther away.
While waiting at the hospital, Muhammad told Antonio's girlfriend not to talk to law enforcement. Muhammad wanted to "answer all of the questions because he wanted to make sure that he said the right things." He did not want law enforcement "to investigate because he had gunpowder on his hands."
Within a few days of the shooting, Eugene went to Bruce's house and told Bruce that he was moving to Arizona "[b]ecause everybody said that [Eugene] shot Antonio." Around the same time, someone shot at Bruce's house, and Bruce thought it might have been related to Antonio's death. Bruce said that Antonio was a member of the 1200 Blocc Crips, which Antonio's girlfriend and brother denied. Armando explained that his father was a member of that gang, so Armando and Antonio grew up around members of that gang. Several days after the shooting, Bruce was arrested in relation to Antonio's death and eventually told law enforcement that Eugene and Muhammad were the shooters that night. Eugene was arrested in Arizona several weeks later. B. Crime Scene Investigation
Riverside County Sheriff's Deputy Ruben Paz investigated and processed the scene of the shooting early in the morning hours of March 6, 2016. It was raining "pretty hard" that day, which affected the order in which investigators collected evidence. Detective Paz collected samples from bloodstains in the street first before the rain washed the blood away. Four possible bloodstains were found in the street in front of the house across the street from the party house's southern neighbor. No testing was conducted on the blood samples.
Detective Paz collected 20 shell casings from two different handguns—thirteen .40-caliber shell casings and seven 9-millimeter shell casings. The shell casings were located in the street to the south of the party house and in between 8134 Sunset Rose (the party house's southern neighbor) and 8125 Sunset Rose (the house across the street from 8134 Sunset Rose). The shell casings were clustered together, with some in the middle of the street and most located closer to the west side of the street (the opposite side of the street from the party house). The .40-caliber shell casings were more toward the middle of the street, and the nine-millimeter casings were closer to the curb.
Many of the shell casings were in the street next to and in front of a Ford Taurus that was parked in front of 8125 Sunset Rose. Three of the shell casings (two .40 caliber and one 9 millimeter) were found underneath the Taurus, and one 9-millimeter shell casing was found on top of the hood of the Taurus near the windshield wipers. Because there were shell casings on top of and underneath the Taurus, Detective Paz believed that the car had not moved. The bloodstains were located in the street amidst the cluster of shell casings and to the south and east of the Taurus.
Deputy Paz and other investigators searched the entire block and did not find any strike marks indicating that someone was shooting from the south end of the street toward the cul-de-sac. No other shell casings were found. Detective Paz explained that in general shell casings from most firearms eject two to five feet to the right of the person holding the gun. Considering the location of the shell casings, Detective Paz opined that the shooters were shooting south while standing in the street south of the party house and in between 8134 Sunset Rose and 8125 Sunset Rose. The person shooting the .40-caliber handgun stood toward the middle of the street, and the person shooting the nine-millimeter handgun stood closer to the west side of the street (the opposite side of the street from the party house).
Detective Paz cautioned that his opinion of the shooters' location was "just a guess based on the evidence that [the police] found." The shell casings could have moved from their original placement upon landing. Partygoers walking around the scene and vehicles driving through it before law enforcement arrived could have caused the shell casings to move. An unspecified number of shell casings had damage consistent with being run over by a vehicle. Detective Paz opined that it was not reasonable to assume that the shell casings had been moved from an original landing place as far north as in the cul-de-sac. He believed that the shell casing found on top of the Ford Taurus "landed there" directly. C. Gang Testimony
Detective Michael Collins of the City of Colton Police Department testified as an expert on criminal street gangs and the Colton City Crips in particular. He described the Colton City Crips as an active criminal street gang with approximately 50 members. Among the common signs and symbols associated with the Colton City Crips are "three C's," "X for trey, and then C for Colton," and the numbers 3, 4, and 2100. Members also often wear blue clothing and gear associated with the Indianapolis Colts football team. Detective Collins explained that a good indicator of gang membership is the use of hand signs and symbols associated with the gang—a practice colloquially referred to as "throwing up a hand gang sign" or "throwing up a hand sign," which gang associates (as opposed to members) do not do.
Detective Collins opined that Eugene and Muhammad were active members of the Colton City Crips. For Eugene, Detective Collins based his opinion on Eugene's tattoos, statements made by witnesses, and a review of Eugene's Facebook account, which included photographs and videos of Eugene wearing clothing and displaying hand gestures associated with the Colton City Crips and associating with known members of the Colton City Crips. Eugene's tattoos indicating membership in the Colton City Crips are dice with the numbers 1, 2, 3, 4, an Indianapolis Colts helmet, and the number 2100. For Muhammad, Detective Collins' opinion was based on Muhammad's association with other documented members of the Colton City Crips, a tattoo of dice similar to Eugene's, videos of Muhammad with other members of the Colton City Crips, and video recordings and photographs of Muhammad displaying Colton City Crips hand signs. In addition, Detective Collins had personally investigated Muhammad in another incident involving a documented Colton City Crips gang member.
Eugene and Muhammad both had gang names. Muhammad is also known as Quata Mill and Quata Rod, and Eugene is also known as Q.P., Quata Pound, Quata Nut, and Baby Q.P. Antonio's girlfriend (who was also a friend of both Eugene and Muhammad) and Bruce testified that Eugene and Muhammad were both members of the Colton City Crips. Two friends of Antonio's girlfriend testified that they too knew that Eugene was a member of the Colton City Crips. As to Muhammad, one said she had never seen him "bang Colton Crips," and the other said that she saw him "throwing up Crip too."
Responding to a hypothetical mirroring the facts in this case in which the two shooters were identified as Colton City Crips, Detective Collins opined that the "crime was committed for the benefit of, in association with, and for furtherance of a gang." Such a shooting would benefit the gang generally by demonstrating that members of the gang are willing "to commit violent acts against other gang members" and also would benefit the gang member personally by "show[ing] their individual willingness to commit crimes for the gang, to stand up for the gang and not back down, which emboldens their reputation, especially when that is done among other members of the gang." D. Muhammad's Testimony
Muhammad testified on his own behalf. Muhammad denied membership in the Colton City Crips or any other gang and also denied knowing that Eugene was a member of any gang. Muhammad, however, admitted to being an associate of the Colton City Crips, which he explained meant that he was friends with members of the gang but he, unlike a member, was "not obligated to do things gang members do," like "hunt people down for points."
On the night that Antonio was shot, Muhammad brought a .22-caliber revolver with him to the party and had the gun on his person when the fight started inside of the house. When Muhammad and his friends were asked by another man at the party "where [they] were from," most of them responded, "San Bernardino" or their "little rap label called A1 Since Day 1." Antonio, however, responded and claimed that he was a "1200 Blocc Crip." The other man had already identified himself as being from "Casa Blanca," a gang that Muhammad later learned had a "beef" with the 1200 Blocc Crips. During the fight, Muhammad was holding onto his gun because it had fallen down his pants.
After exiting the house, Muhammad fired a .22-caliber revolver four or five times into the air as warning shots to stop the shooters who were advancing toward his direction. Muhammad was in the cul-de-sac when the shooting started, and he ducked behind a car. Someone was shooting north toward the cul-de-sac from south of the party house. Before the shooting started, Antonio and his brother had been walking down the middle of the street yelling, "1200 Blocc Crip" and "fuck Casa Blanca." Muhammad claimed that Eugene did not have a gun on him that night and that he had only seen Eugene with a gun twice.
Sometime in the year after Antonio was killed, Muhammad was charged with being a felon in possession of a firearm. He pled guilty to that offense and admitted as true an attendant gang enhancement allegation.
DISCUSSION
A. Factual Impossibility
Defendants contend that the record does not contain sufficient evidence that either of them killed Antonio, because it was physically impossible for them to have done so given the evidence of their location relative to Antonio's at the time of the shooting. We do not agree.
"Upon a challenge to the sufficiency of evidence for a jury finding, we '"'"review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'"' [Citation.] 'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.'" (People v. Rivera (2019) 7 Cal.5th 306, 323-324 (Rivera).)
Defendants maintain that the eyewitness testimony and the physical evidence demonstrate that it is not possible that either of them shot Antonio, given the location of the shell casings in relation to the location of Antonio's parked car. They argue that the evidence shows that Antonio's car was parked directly across the street from the party house, and Antonio was standing in the street next to his parked car when he was shot. But the shell casings were all found in the street approximately one house to the south of Antonio's location, and the shooters must have been standing in the street where the shell casings were found. All of the evidence (including the eyewitness testimony of Bruce and Armando) indicates that Eugene and Muhammad were firing south. They conclude that it is factually impossible for them to have shot Antonio, because they were south of him and firing south.
The argument fails because the record contains substantial evidence that Antonio was south of the shooters when he was shot. It is true that there is some evidence to the contrary—Armando testified that Antonio's car was parked directly across the street from the party house, and the shell casings were found south of the party house.
But the record also contains substantial evidence that Antonio's car was parked farther to the south. Antonio's girlfriend described the car as being parked directly across the street from 8134 Sunset Rose (the southern neighbor of the party house) and in front of 8125 Sunset Rose. In the diagram Armando drew of the scene, Antonio's car is depicted as being parked south of the party house. And Armando testified that he and Antonio had to walk downhill from the party house for approximately 15 to 30 seconds before arriving at Antonio's car. From all of that evidence, the jury could reasonably infer that Antonio's car was parked to the south of the party house and not directly across the street from it.
The location of the only blood evidence also tends to show that Antonio's car was parked south of the party house, not directly across from it. Four possible bloodstains were discovered in the street in front of 8125 Sunset Rose, south of the parked Ford Taurus and slightly to the side of it, and directly across the street from 8134 Sunset Rose (the party house's southern neighbor). Because Antonio was shot in the back and lying in the street for a short period, the jury could reasonably infer that the blood belonged to Antonio. Because Antonio was shot while attempting to enter his parked car, the jury also could reasonably infer that Antonio was parked south of the Ford Taurus—and hence south of the party house—when he was shot.
Because the record contains substantial evidence that Antonio was parked south of the party house and south of the location where the shell casings were found, defendants' factual impossibility argument lacks merit. Again, the jury could reasonably infer that Antonio was located where the only blood evidence was found. Numerous shell casings from both weapons were found to the north of those bloodstains. The jury therefore could reasonably infer that Eugene and Muhammad were standing north of Antonio when they fired south and killed him.
Specifically, the shell casings identified as items 18, 19, 20, 22, 23, 24 were demonstrably located to the north of all of the possible blood evidence. The shell casings corresponding to items 18, 19, 20, and 24 are 9 millimeter, and the remaining two are .40 caliber. Three additional shell casings (two .40 caliber and one 9 millimeter) were located underneath the Ford Taurus, which was north of the blood evidence.
In sum, viewing the evidence in light most favorable to the judgment, substantial evidence supports that Eugene or Muhammad killed Antonio. B. Substantial Evidence of Premeditation and Deliberation
Both defendants contend that there is not sufficient evidence that they acted with premeditation and deliberation. The contention lacks merit.
"A murder that is premeditated and deliberate is murder in the first degree." (People v. Jurado (2006) 38 Cal.4th 72, 118 (Jurado); § 189, subd. (a).) "'In this context, "premeditated" means "considered beforehand," and "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action."'" (Jurado, supra, at p. 118.) "A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing . . . ." (Id. at pp. 118-119; People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) Those guidelines—referred to as the Anderson factors—"are descriptive and neither normative nor exhaustive," so "reviewing courts need not accord them any particular weight." (People v. Halvorsen (2007) 42 Cal.4th 379, 420; Rivera, supra, 7 Cal.5th at p. 324.) We review the jury's finding of premeditation and deliberation for substantial evidence. (People v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.)
This is a case of transferred intent: "[A] defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had '"the fatal blow reached the person for whom intended."'" (People v. Scott (1996) 14 Cal.4th 544, 546 (Scott).) We therefore analyze whether the record contains substantial evidence that Muhammad and Eugene acted with premeditation and deliberation as to their intended targets, namely, the rivals with whom they had fought at the party. In killing Antonio, defendants are "deemed as culpable as if [they] had accomplished what [they] set out to do." (Ibid.; People v. Bland (2002) 28 Cal.4th 313, 323-324 ["Whether one conceptualizes the matter by saying that the intent to kill the intended target transfers to others also killed, or by saying that intent to kill need not be directed at a specific person, the result is the same: assuming legal causation, a person maliciously intending to kill is guilty of the murder of all persons actually killed. If the intent is premeditated, the murder or murders are first degree"].)
Here, there was evidence of motive, planning, and manner of killing from which a jury could conclude that Eugene and Muhammad acted with premeditation and deliberation. With respect to motive, defendants concede that "the skirmish inside the party . . . involving Muhammad and some of his friends" provided some evidence of motive. They maintain, however, that evidence of a stronger motive was lacking because there was no evidence of an ongoing rivalry between the Colton City Crips and the gang to which their combatants allegedly belonged. The argument is irrelevant to our review of the sufficiency of the evidence. "Our review tests whether the evidence was sufficient, not whether hypothetical evidence would have strengthened the prosecution's case." (People v. Vargas (2020) 9 Cal.5th 793, 821-822.) In any event, the jury could reasonably infer that an ongoing rivalry did exist, because Eugene's identification of his gang resulted in a verbal and physical altercation. Moreover, that verbal and physical altercation itself provided strong evidence of motive. The jury could reasonably infer that defendants possessed a motive to kill the people with whom they were fighting either as retaliation for initiating the fight, as a continuation or an escalation of that fight, to vindicate the honor of defendants' gang, to boost the personal reputations of Eugene, Muhammad, or the Colton City Crips in general, or in connection with an ongoing gang rivalry.
As to planning, both Eugene and Muhammad arrived at the party armed with guns. Although only Muhammad brought his gun inside the house, Eugene's firearm was readily accessible in a nearby vehicle. Defendants contend that they armed themselves for protection in the event that anything untoward happened at the party and that they were not planning to attack anyone or to encounter any rivals. The jury was free to disbelieve that self-serving justification. (People v. Silva (2001) 25 Cal.4th 345, 369.) And regardless of how defendants justified arming themselves, the jury could reasonably infer from Muhammad's act of taking a loaded weapon into the party and Eugene's act of having one readily accessible in a nearby vehicle that both defendants were prepared and planned to be involved in a violent encounter at the party. (People v. Salazar (2016) 63 Cal.4th 214, 245; People v. Lee (2011) 51 Cal.4th 620, 636; People v. Wells (1988) 199 Cal.App.3d 535, 540-541; People v. Miranda (1987) 44 Cal.3d 57, 87, overruled on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) In addition, planning is further demonstrated by Eugene's immediate retrieval of his gun after being forced out of the house, and Muhammad's waiting until Eugene was also armed before firing.
The manner of killing also indicates premeditation and deliberation. Defendants claim that there was "absolutely no evidence" of the manner of killing supporting a finding of premeditation and deliberation because "[t]he shooting was so haphazardly carried out" and "the only person killed or injured was a friend" of theirs. Defendants' lack of success in shooting their intended targets is irrelevant. (Scott, supra, 14 Cal.4th at p. 546.) Though ineffectual (as to the intended targets), the manner of the killing was neither haphazard nor free of reflection on behalf of defendants. The jury could reasonably infer from the number of shots fired that Muhammad and Eugene reflected upon their actions—however briefly—before and during the shooting and acted with premeditation and deliberation in killing Antonio. (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225 [manner of shooting, which consisted of at least six shots, fired from about 25 feet away, supported finding of premeditation]; People v. Francisco (1994) 22 Cal.App.4th 1180, 1192 [manner of killing involving multiple shots fired at close range into a group of people in rival gang territory supported inference of premeditation and deliberation].)
In sum, we conclude that there is substantial evidence supporting the jury's finding that Muhammad and Eugene committed a premeditated and deliberate murder. We therefore affirm the first degree murder convictions of both Muhammad and Eugene. C. Admission of the 10-Second Music Video
Eugene and Muhammad argue that the trial court prejudicially erred by admitting a 10-second music video depicting Muhammad displaying purported gang signs and Eugene holding and cocking a firearm. They contend that the prejudicial effect of the video recording outweighed its probative value because of the cumulative effect of defendants' gang membership and because of its depiction of Eugene with a gun. We conclude that the trial court did not abuse its discretion by admitting the video and, in the alternative, that any error was harmless.
1. Video Recording
While cross-examining Muhammad, the prosecutor introduced a 10-second clip of a music video showing Eugene driving a car with Muhammad in the front passenger seat. The video recording was played for the jury three times. The video was recorded on Muhammad's cell phone, and Muhammad is in the foreground. In the recording, Muhammad holds up his left hand near his face and makes numerous hand gestures. While driving the car with his left hand on the steering wheel, Eugene holds a gun and some paper money in his right hand. He lets the money drop and then holds up the gun and cocks it. Another unidentified passenger who is seated behind Eugene makes numerous hand gestures throughout the recording. Both defendants objected to admission of the video recording as being more prejudicial than probative and as being inadmissible altogether as bad character evidence. The trial court overruled the objections.
Muhammad denied that he "thr[e]w" Colton City Crips hand gestures in the recording. He claimed instead that his hand gestures symbolized the "Inland Empire" or the "I.E.," which he previously explained stood for "A1 Since Day 1, the region [they] represent[ed]." Although he admitted to having a clear view of the recording being played, Muhammad refused to confirm that Eugene was holding a handgun. Muhammad claimed that the object in Eugene's hand "could be anything."
2. Analysis
Evidence Code section 352 provides that a trial court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Scott (2011) 52 Cal.4th 452, 490 (Scott).) "'"The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. . . . '[P]rejudicial' is not synonymous with 'damaging.'"'" (Id. at p. 491.) We review the trial court's admission of evidence under Evidence Code section 352 for abuse of discretion. (Scott, at p. 491.)
Defendants contend that the music video had little probative value when considered in light of the other evidence of gang membership or association. And they claim that the video was unduly prejudicial because it was "highly inflammatory" and was "for all intents and purposes, bad character evidence," because the parties stipulated that defendants were not allowed to possess firearms. We are not persuaded.
Given Muhammad's display of numerous hand gestures during the recording, the video recording is highly probative of defendants' active participation in and association with a gang. Defendants correctly do not dispute that such gang evidence is probative of key issues in the case. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez) ["evidence of gang membership is often relevant to, and admissible regarding, the charged offense"].) Whether defendants were active participants in a gang was an element of the substantive gang offense, and their active participation in or association with a gang was relevant to the gang and firearm enhancements. (§§ 186.22, subds. (a), (b)(1)(A), 12022.53, subds. (d), (e)(1); Hernandez , supra, at pp. 1048-1049.) Defendants' gang membership also was relevant to establishing motive because the prosecutor's theory of the case was that defendants were shooting at rival gang members. (People v. Valdez (2012) 55 Cal.4th 82, 130-131 [setting aside gang enhancement, evidence of gang membership was relevant to motive].) The video recording was additionally relevant to impeaching Muhammad's credibility because Muhammad denied that he was a member of the Colton City Crips (or any gang) and denied knowing that Eugene was a member of the Colton City Crips. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168.)
The probative value of the video was not diminished by the presence of other evidence of defendants' gang membership, because defendants' membership in the Colton City Crips was disputed during trial. (People v. Williams (2009) 170 Cal.App.4th 587, 611 [abuse of discretion to admit cumulative gang and prior arrests evidence concerning "issues not reasonably subject to dispute"].) Muhammad denied that he and Eugene were members of the Colton City Crips after the prosecution had introduced all of the other evidence of defendants' gang membership.
The risk that admission of the video would prejudice defendants by evoking an emotional bias against them was slight. The video tended to show that they were gang members or gang associates, but other evidence showed the same thing. The video also showed defendants possessing a firearm, but the testimony of multiple eyewitnesses overwhelmingly established that both defendants brought handguns to the party (contradicted only by Muhammad's testimony that Eugene was unarmed). As a result, it is unlikely that the video evoked any emotional bias against defendants that was not already evoked by the nature of the facts and the evidence in the case as a whole.
For similar reasons, the risk that the jury would use the video as improper bad character evidence was negligible. "[E]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) Thus, it would have been improper for the jury to infer from defendants' possession of the gun in the video that defendants also possessed guns at the party, and defendants would have been entitled to a limiting instruction if they had objected to the video on that ground. But even without such an instruction, it is unlikely that the jury relied on the video to find that defendants possessed guns at the party, because multiple eyewitnesses testified that defendants did possess guns at the party.
For all of these reasons, we conclude that the trial court did not abuse its discretion by determining that the probative value of the video was not substantially outweighed by the danger of undue prejudice.
In addition, assuming for the sake of argument that the trial court did abuse its discretion by admitting the video, the error was not prejudicial. We review this error under the state law harmlessness standard. (People v. Coneal (2019) 41 Cal.App.5th 951, 972 (Coneal).) Reversal is warranted only if we conclude that it was "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendants maintain that we should apply the federal harmlessness standard of Chapman v. California (1967) 386 U.S. 18, 24 because they claim that their federal due process rights were violated. "The admission of evidence results in a due process violation only if it makes the trial fundamentally unfair. [Citation.] 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.'" (People v. Hunt (2011) 196 Cal.App.4th 811, 817.) Because "[t]here were multiple permissible inferences to be drawn from the evidence," no due process violation occurred. (Coneal, supra, 41 Cal.App.5th at p. 972.)
There was overwhelming evidence of defendants' guilt. Two eyewitnesses identified Muhammad and Eugene as being the only two people who were firing guns that night, and one of those eyewitnesses said that both men fired their guns toward the south. The shooting occurred after a fight that resulted from Eugene's claiming to be a member of the Colton City Crips. There was ample evidence that both Eugene and Muhammad were members of the Colton City Crips. Moreover, as we have explained, there was substantial evidence that Eugene and Muhammad were standing to the north of Antonio and that the bullet that struck Antonio came from that direction. Given the powerful evidence of both defendants' guilt, we conclude that there is not a reasonable probability that Eugene or Muhammad would have received a more favorable outcome had the video been excluded. D. Gang Enhancement Instruction
Defendants contend that the trial court prejudicially erred under People v. Prunty (2015) 62 Cal.4th 59 (Prunty) by not identifying the Colton City Crips specifically in the jury instruction on the gang enhancement allegation because there was evidence that members of other gangs were present at the shooting. The contention lacks merit.
For the gang enhancement allegation, the jury was instructed with CALCRIM No. 1401, which required the jury to find that each "defendant committed or attempted to commit the crime [of murder or voluntary manslaughter] for the benefit of, at the direction of, or in association with a criminal street gang." The instruction then described the findings necessary to determine the existence of a criminal street gang under subdivision (f) of section 186.22. CALCRIM No. 1401 tracks the language of section 186.22, subdivisions (b)(1) and (f).
Defendants did not forfeit this argument by failing to object to or request modification of CALCRIM No. 1401. (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 [a defendant need not object to an instruction that incorrectly states the law and affects his or her substantial rights].)
The trial court is obliged, even in the absence of a request, to "'"instruct on the general principles of law relevant to the issues raised by the evidence."'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) That obligation includes the duty to instruct on the elements of a sentence enhancement allegation. (People v. Mil (2012) 53 Cal.4th 400, 409.) Generally, "'[i]f the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.'" (People v. Estrada (1995) 11 Cal.4th 568, 574.) We independently review whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The gang enhancement under section 186.22, subdivision (b), "imposes additional punishment for felony convictions 'committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (People v. Ewing (2016) 244 Cal.App.4th 359, 372 (Ewing).) "[C]riminal street gang" is defined in subdivision (f) of section 186.22 as "any 'ongoing organization, association, or group of three or more persons' that shares a common name or common identifying symbol; that has as one of its 'primary activities' the commission of certain enumerated offenses; and 'whose members individually or collectively' have committed or attempted to commit certain predicate offenses." (Prunty, supra, 62 Cal.4th at p. 67.)
Prunty considered the "showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets." (Prunty, supra, 62 Cal.4th at p. 67.) There, the prosecution had theorized that the relevant ongoing organization, association, or group was the gang known as the Norteños in general. (Id. at p. 70.) The defendant argued that "the prosecution's use of crimes committed by various Norteño subsets to prove the existence of a single Norteño organization . . . improperly conflated multiple separate street gangs into a single Norteño gang without evidence of 'collaborative activities or collective organizational structure' to warrant treating those subsets as a single entity." (Ibid.) Our Supreme Court agreed, concluding that, "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22, [subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Id. at p. 71, italics added.) Prunty noted that its interpretation of section 186.22, subdivision (f), did not add an element to the statute. (Prunty, at p. 76, fn. 4.)
The prosecutor's theory of the case here bears no resemblance to the theory at issue in Prunty. The prosecutor here argued that defendants actively participated in the Colton City Crips criminal street gang and sought to benefit that gang by killing the rivals with whom they had fought at the party, which led to the death of Antonio. During closing argument, the prosecutor stated: "[T]he next thing you're going to have to decide is the gang allegation. You'll have to decide whether this crime was committed for the benefit of, in association with, and in furtherance of the Colton City Crips. I submit to you that it was." That theory is consistent with the evidence in the case. All of the evidence presented by the gang expert on the findings necessary to establish the existence of a criminal street gang was about the Colton City Crips. No other evidence on those findings was presented. In addition, all of the predicate offenses relied on to establish that the Colton City Crips constituted a criminal street gang were committed by documented and known members of the Colton City Crips. Because the prosecutor did not rely on evidence of the predicate crimes of subset gang members to prove that the Colton City Crips constitutes a criminal street gang, Prunty has no application. (Ewing, supra, 244 Cal.App.4th at pp. 372-373 [Prunty inapplicable when the prosecutor does not rely on evidence of the predicate crimes of subset gang members to prove the existence of a criminal street gang]; People v. Pettie (2017) 16 Cal.App.5th 23, 49-50 [same].) We therefore conclude that there was no instructional error. E. Verdict Form for Firearm Enhancement
For the firearm enhancement under section 12022.53, the jury received verdict forms that read: "We, the jury in the above-entitled action, find the defendant, [Eugene or Muhammad], in the commission and attempted commission of the offense charged under count 1 of the information, DID personally and intentionally discharge a firearm and proximately caused great bodily injury or death to another person, not an accomplice, within the meaning of Penal Code section 12022.53, subdivision (d) and (e), and 1192.7, subdivision (c)." The verdicts were read aloud in court. The jury was polled and confirmed the verdicts in open court. Defendants did not object.
For Muhammad, the statutory citation for section 1192.7 reads section "1192.7, subdivision (c), subsection (8)." Eugene's verdict form does not include the reference to "subsection (8)."
Defendants claim that there is not sufficient evidence to support the finding that both of them personally discharged a firearm causing death under section 12022.53, subdivision (d), because only one bullet struck and killed Antonio. The People do not dispute that claim. Instead, the People maintain that the true finding on the firearm enhancement allegation was not based on defendants' personal use. The problem is not one of sufficiency of the evidence, they urge, but instead a nonprejudicial clerical error in the verdict forms, which omitted the vicarious liability language of subdivision (e) of section 12022.53. Defendants counter that the defect amounted to judicial error that cannot be corrected. We agree with the People on both points.
Section 12022.53 provides that a defendant who "personally and intentionally discharges a firearm" is subject to an additional consecutive term of 25 years to life if the defendant proximately caused the death of someone other than an accomplice. (§ 12022.53, subd. (d).) Subdivision (e)(1) of section 12022.53 is a gang-related firearm enhancement provision. It applies to any person who is a principal in committing an enumerated offense, including murder (§ 12022.53, subd. (a)(1)), if it is "pled and proved" that the person committed the crime for the benefit of a gang under section 186.22, subdivision (b), and that "[a]ny principal in the offense committed any act specified in subdivision (b), (c), or (d) [of section 12022.53]." The enhancement therefore applies both to the direct perpetrator of the murder and to anyone who aids and abets another in the commission of the murder. (People v. Hernandez (2005) 134 Cal.App.4th 474, 480.)
"'"A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court."'" (People v. Jones (1997) 58 Cal.App.4th 693, 710.) "'The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed.'" (Ibid.) "'[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice.'" (Id. at pp. 710-711; People v. Webster (1991) 54 Cal.3d 411, 447.)
As an initial matter, "'by failing to object to the form of the verdict when the court proposed to submit it or when the jury returned its finding,'" defendants forfeited this argument. (People v. Johnson (2015) 61 Cal.4th 734, 784 (Johnson).) "When the trial court polled the jury, defendant[s] had the opportunity to clarify any misunderstanding that may have motivated the jury's verdict, but [they] failed to do so." (Ibid.) As our Supreme Court has explained, "[i]f we were to allow the issue to be raised for the first time on appeal, a party would have an incentive not to complain about the verdict form in the trial court in order to secure the advantage of seeking a complete reversal on appeal." (Ibid.)
In any event, the contention fails on its merits. Both defendants were charged with the firearm enhancement under subdivisions (d) and (e) of section 12022.53. The verdict forms cited both subdivisions (d) and (e) of section 12022.53. The forms did not state, as they should have, that the jury found the enhancement true because it found that each defendant violated section 186.22, subdivision (b) and that each defendant was a "principal in the" murder of Antonio. (§ 12022.53, subd. (e)(1).) Despite that omission, however, it is "unmistakably clear" that the jury intended the firearm enhancement to apply because of each defendant's vicarious liability as a principal in the murder and not both of them personally caused Antonio's death. (Johnson, supra, 61 Cal.4th at p. 785.) Because a single unidentified bullet from a medium caliber weapon killed Antonio and both guns used by Muhammad and Eugene were medium caliber weapons, the prosecutor argued that either Muhammad or Eugene could have been the actual killer, with the other liable as an aider and abettor. The prosecutor explained to the jury: "[W]e don't have to know exactly whose bullet killed [Antonio]. And that's based on aiding and abetting." "We don't have to know whose actual bullet actually killed. What we have to know is that both [defendants] were shooting downwind." The prosecutor did not attempt to identify which defendant killed Antonio and did not argue that they both killed him. Rather, the prosecutor argued that one of them must have killed him, and the other was vicariously liable.
In line with that theory of the case, the jury was not instructed that it must find that a particular defendant personally shot Antonio in order to find the enhancement allegation true as to that defendant. Instead, the jury was instructed only that one of the principals must have personally discharged the weapon that caused the death. Specifically, the jury was instructed: "If you find the defendant guilty of the crime of murder, charged in Count 1, and you find that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in any criminal conduct by gang members, you must then decide whether the People have proved the additional allegation that one of the principals personally and intentionally discharged a firearm during that crime causing death." (Italics added.) The jury was further instructed that the People had to prove the following three elements: "1. Someone who was a principal in the crime personally discharged a firearm during the commission of the Murder[;] [¶] 2. That person intended to discharge the firearm; [¶] AND [¶] 3. That person's act caused the death of another person who was not an accomplice to the crime." "[P]rincipal" was defined for the jury as a person who "directly commits or attempts to commit the crime or if he or she aids and abets someone else who commits or attempts to commit the crime." "[W]e presume that the jury 'meticulously followed the instructions given.'" (People v. Cruz (2001) 93 Cal.App.4th 69, 73.)
In light of the evidence that either defendant could have killed Antonio, the prosecutor's theory of the case, and the instructions given to the jury on the firearm enhancement, we conclude that it is unmistakably clear that the jury intended to find the firearm enhancement true on the basis of defendants' participation as principals in the killing. Moreover, given that the jury was instructed on the vicarious liability language for the firearm enhancement, the evidence overwhelmingly showed defendants' guilt as aiders and abettors, and the jury convicted both defendants on the substantive gang offenses, defendants cannot demonstrate prejudice from the technical defect in the verdict forms. The omission of the vicarious liability language of subdivision (e) of section 12022.53 was the "'result of oversight, neglect or accident'" and was a harmless clerical error, not judicial error. (In re Gray (2009) 179 Cal.App.4th 1189, 1196.) For all of these reasons, we conclude that the technical error in the verdict forms for the firearm enhancement was harmless. F. Abstracts of Judgment
In his reply brief, Muhammad asserts that the trial court imposed the firearm enhancement under only subdivision (d) of section 12022.53, not under the vicarious liability provision of subdivision (e). We believe the argument is based on a misreading of the record. The firearm enhancement was alleged under subdivisions (d) and (e). When the trial court heard argument at sentencing, Eugene's defense counsel stated that the trial court could not "sentence on the gang allegation and the gun," to which the trial court responded, "Well, certainly the gang allegation, not only because of the underlying in Count 1, but also because of the use of the 12022.53 (d) and (e)(1)." Later, when sentencing Muhammad, the court stated, "The Court will impose 25-to-life consecutive for the 12022.53(d) allegation, as filed." Thus, when viewed as a whole, the record shows that the trial court imposed the sentence on the firearm enhancement under subdivisions (d) and (e) of section 12022.53.
As the People correctly point out, the abstracts of judgment incorrectly reflect that defendants' firearm enhancements were imposed under subdivision (g) of section 12022.53. The firearm enhancements were imposed under subdivisions (d) and (e) of section 12022.53, as charged. The trial court is therefore ordered to correct the abstracts of judgment to reflect that the firearm enhancements were imposed under section 12022.53, subdivisions (d) and (e). (People v. Mitchell (2001) 26 Cal.4th 181, 184-185.) G. Eugene's Firearm Possession Conviction
Eugene was convicted of possessing a firearm in violation of section 29805, which prohibits misdemeanants convicted of certain enumerated offenses from possessing a firearm for 10 years after the conviction. (§ 29805, subd. (a).) Eugene stipulated that he was "prohibited by law from owning, possessing, or receiving a firearm." In 2016, he was convicted of violating section 25850. Section 25850 is not one of the enumerated offenses listed in section 29805. (§ 29805, subd. (a).) As Eugene correctly contends and the People concede, Eugene's conviction under section 29805 therefore cannot stand. We therefore reverse Eugene's conviction under section 29805.
Eugene contends that the cumulative effect of the errors requires reversal. Because we have concluded that Eugene's firearm possession conviction must be reversed, and because we have rejected Eugene's other claims of error and concluded that they were not prejudicial in any event, this contention lacks merit. (People v. Avila (2019) 46 Cal.4th 680, 718.)
DISPOSITION
For Eugene, the conviction under section 29805 is reversed. For both defendants, the trial court is ordered to amend the abstracts of judgment to indicate that the firearm enhancement was imposed under subdivisions (d) and (e) of section 12022.53. The trial court is directed to forward certified copies of the amended abstracts of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: MILLER
Acting P. J.
CODRINGTON
J.