Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA216648, Kathleen Kennedy-Powell, Judge.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Danny Kim appeals from his conviction of second degree murder (Pen. Code, § 187, subd. (a)), attempted murder (§§ 187, subd. (a), 664), conspiracy to commit murder (§ 182, subd. (a)(1)), and conspiracy to commit robbery (§ 182, subd. (a)(1)), with firearm and criminal street gang enhancements (§§ 12022.5, 12022.53, subds. (b)-(e), 186.22, subd. (b)(1)). He contends that prejudicial misconduct by a juror during voir dire requires reversal, and that there is insufficient evidence to support the jury’s true finding on the gang allegation. He also contends that the prosecutor committed prejudicial misconduct by withholding exculpatory evidence, and that the trial court committed reversible error by denying him an opportunity to file an objection to press coverage of the proceedings. Finally, he asserts that the trial court erred by imposing consecutive sentences. We agree that juror misconduct occurred, but find that appellant was not prejudiced on that account. We also conclude that, based on the jury instruction given, there was insufficient evidence to support the gang allegation. Yet, because a properly instructed jury could find the allegation true, retrial of the allegation is not barred. We find no other reversible error.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
During the afternoon of April 20, 2001, appellant and some of his friends decided to plan a robbery for that evening. All of the young men involved in this plan, including appellant, belonged to a group known as the Outlaws. Earlier in the week, appellant and two other members of the Outlaws had stolen two firearms, a revolver and a shotgun, during a residential burglary. The group intended to use the stolen firearms to commit the robbery. They purchased ski masks and gloves to conceal their identities.
When evening arrived, appellant and the other Outlaws members involved in the robbery plan went to Lawndale to retrieve a Mercedes Benz stolen by Outlaws members several days earlier. Before they carried out the planned robbery, Joshua Park, another Outlaw, joined the group. Accompanying Park were four members of a group called KM, meaning either Korean Mobsters or Korean Mafia. Since too many people had become involved, the Outlaws abandoned their plan to commit a robbery. Instead, the assembled group of Outlaws and KM members decided to look for members of Asian Criminals, known as ACS, because a member of ACS had stabbed one of Park’s friends. The group drove to Koreatown in Los Angeles, where they thought it was likely that they would find ACS members. Appellant rode in the front passenger seat of the stolen Mercedes. Both of the stolen firearms were in the Mercedes.
In Koreatown, the group made four or five stops in an unsuccessful effort to locate members of ACS Around 11:00 p.m., they stopped at P.C. Harvard, an internet café. Park and Joon Myong, another Outlaw, went inside the café, where they thought they recognized someone associated with ACS. Inside the café, Park spoke to victim Samuel Bae. Park also spoke to Bae’s friend, victim Arthur Chung, and may have asked him to step outside. Bae followed Chung outside the café, because Chung was afraid something was going to happen. Once outside, Myong gave a “thumbs up” signal to the people in the Mercedes. The occupants of the Mercedes rolled down the passenger side windows in the front and back. One of the men sitting in the back seat was holding a large gun, possibly a shotgun. Appellant, sitting in the front passenger seat, showed Bae that he had a pistol. Bae said, “‘What, you going to shoot me right here right now? You must be stupid.’” Appellant told Myong to run, then Myong heard multiple gunshots. Bae suffered a gunshot wound to the right side of his chest, but survived. Chung suffered multiple gunshot wounds, and died of his injuries.
Appellant was charged with the murder of Chung (count 1); the attempted murder of Bae (count 2); conspiracy to commit murder (count 3); and conspiracy to commit robbery (count 4). The information also alleged that all four counts were committed for the benefit of a criminal street gang and that counts 1 and 2 involved the personal use and discharge of a firearm.
A jury found appellant guilty of all charges, found the murder was in the second degree, and returned true findings as to the criminal street gang and firearm allegations. Appellant filed two motions for new trial, first on the ground of juror misconduct, then on the ground the prosecution allegedly withheld evidence. The trial court denied both motions. On count 1, murder in the second degree, appellant was sentenced to 15 years to life, plus an additional 25 years to life pursuant to section 12022.53, subdivision (d). On count 2, attempted murder, he was also sentenced to 15 years to life, plus an additional 25 years to life pursuant to section 12022.53, subdivision (d). On count 3, conspiracy to commit murder, he was sentenced to 25 years to life. And on count 4, conspiracy to commit robbery, he was sentenced to three years, plus an additional five years pursuant to section 186.22.
Appellant timely appeals from the judgment of conviction.
DISCUSSION
I
Appellant asserts that he is entitled to a new trial because a juror committed prejudicial misconduct by intentionally concealing material information during voir dire. Respondent concedes there was juror misconduct, but argues that appellant is not entitled to a new trial because he was not prejudiced by the misconduct. We conclude that the presumption of prejudice arising from the misconduct has been rebutted.
Respondent also claims that the juror “voluntarily contacted appellant’s trial counsel” and “initiate[d] a conversation” with trial counsel, in an effort to demonstrate that the juror was sympathetic to the defense. But the record clearly shows that Holtz approached the juror outside the courthouse and initiated the conversation by asking the juror questions regarding her impressions of the trial.
“A criminal defendant has a constitutional right to an impartial jury, and the pretrial voir dire process is important because it enables the trial court and the parties to determine whether a prospective juror is unbiased and both can and will follow the law. But the voir dire process works only if jurors answer questions truthfully. ‘As the United States Supreme Court has stated, “Voir dire examination serves to protect [a criminal defendant’s right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.” [Citation.] [¶] A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct.’” (People v. Wilson (2008) 44 Cal.4th 758, 822-823.)
The right to exercise peremptory challenges is a creation of state law, and in most circumstances “is not a matter of federal constitutional concern.” (Rivera v. Illinois (2009) __ U.S. __ [129 S.Ct 1446, 1453-1454].) Under California law, “‘[t]he denial of the right to reasonably exercise a peremptory challenge, be it by either the trial court or a juror through concealing material facts, is not a mere matter of procedure, but the deprivation of an absolute and substantial right historically designed as one of the chief safeguards of a defendant against an unlawful conviction.’” (In re Hitchings (1993) 6 Cal.4th 97, 112, original italics.) Nevertheless, this effective loss of a peremptory challenge due to a trial court’s erroneous denial of challenge for cause does not violate the constitutional right to an impartial jury. (People v. Avila (2006) 38 Cal.4th 491, 539-540.)
Code of Civil Procedure section 223, as enacted by Proposition 115 in 1990, limits the circumstances in which a trial court’s infringement on the right to exercise peremptory challenges constitutes reversible error. Respondent does not contend that this provision applies when a juror impedes the meaningful exercise of peremptory challenges by concealing material facts during voir dire.
Jury selection in this case lasted almost two days. The individual who eventually became Juror No. 1 was seated in the jury box for questioning during the afternoon of the second day of voir dire. Consequently, by the time she was questioned, Juror No. 1 had observed lengthy questioning on the subjects of gangs and family experiences with the criminal justice system. She also was present during the court’s admonition that any prospective juror who was uncomfortable answering a question in front of the group could ask to discuss the matter privately with the court and counsel, an option that at least two potential panelists exercised with regard to questioning about criminal convictions of family members.
The first two questions specifically posed by the court to Juror No. 1 were whether she had heard all of the earlier questions and whether any of them applied to her. Juror No. 1 stated that she had heard the questions and that none of them applied to her. The court then asked whether anyone close to her had been charged with a criminal offense or had been touched by gang membership or incidents. Juror No. 1 responded in the negative to both questions. When the prosecutor had the opportunity to question Juror No. 1, the following exchange occurred:
“[Prosecutor]: And you haven’t really had any negative experience with gangs; is that right?
“[Juror No. 1]: No, no, it’s just—this is a thousand years ago when I was like in elementary. We were living in the Florence district and I think the gang was 13. It’s been a thousand years ago.
“[Prosecutor]: And I take it
“[Juror No. 1]: That’s how I know, because I don’t know nothing about gangs and I’m not into them anyway.
“[Prosecutor]: So aside from anything that may have happened back when you were much younger, you don’t have any other negative experience with gangs, you don’t have any opinions of persons in gangs or anything like that?
“[Juror No. 1]: No.”
Between the verdict and sentencing, defense counsel Steffeny Holtz filed an application for disclosure of the addresses and telephone numbers of the jurors who rendered the verdict. Attached to the application was Holtz’s sworn declaration stating that after the verdict was announced, she had a conversation with Juror No. 1 in which the juror revealed “she had lied during voir dire, failing to disclose that her son had in fact been tried for murder, and that he was serving a 15 year sentence.” The declaration further stated that Holtz had investigated the juror’s claim, and found an inmate with a name and date of birth matching that of the juror’s son. With the agreement of both the prosecutor and defense counsel, the trial court decided to hold a hearing to investigate the allegation of juror misconduct, and issued a subpoena for Juror No. 1. The trial court also appointed counsel for Juror No. 1.
The evidentiary hearing on potential juror misconduct took place on November 30, 2004. Juror No. 1 testified at this hearing under a grant of immunity. She admitted she “intentionally lied” about the fact that her son, T.A., was serving a prison sentence for a murder conviction. She also admitted that she had attended “every last one” of the court proceedings related to her son’s case. The following exchange occurred as defense counsel Ringold addressed Juror No. 1’s knowledge of gangs:
Because defense counsel Holtz had declared a conflict of interest and withdrawn from representation, another attorney, Leslie Ringold, represented appellant during the evidentiary hearing and in all subsequent proceedings in the trial court. Holtz’s withdrawal was unrelated to the issue of juror misconduct.
“[Ringold:] Then we come to 1993 or so when [T.A.] was arrested on the murder case. During the time that you were in court and present for all the testimony at all the proceedings, during that testimony, I imagine you heard a lot of talk about [T.A.] being a gang member, right?
“[Juror No. 1:] Yes, I did.
“...
“[Ringold:] Do you remember what gang it is that people were saying he was involved with?
“[Juror No. 1:] No, because I don’t know nothing about gangs, so I couldn’t tell you one gang from another.
“[Ringold:] Okay. Well, when you say you don’t know nothing about gangs, you heard testimony during [T.A.]’s trial from various different people, I bet, about [T.A.] being involved in a gang; that he had been over at that market, the JC Market, for example, and was recognized as a gang member having been involved in causing other problems in the neighborhood, you know, before the murder case. Do you remember hearing about that?
“[Juror No. 1:] Yes.
“[Ringold:] And—for example, you knew that he had a gang name or a moniker of ‘Scanner,’ right?
“[Juror No. 1:] I heard that name, yes, I did.
“[Ringold:] Okay. And that some of the people that were arrested with him, as well as him—people thought either they were 107 Hoover Crips, or they were 103 Hustler Crips or different, you know, members of different types of gangs. You heard discussion about that, right?
“[Juror No. 1:] Like I said, I don’t know anything about gangs. I wasn’t a person that knew the streets, so I couldn’t tell you.
“[Ringold:] Well, I understand you are not a person who knows the streets. But from sitting in the trial every day of your son’s
“[Juror No. 1:] Well, yeah, when I heard it, when I was in the trial.
“[Ringold:] Right. So you heard people testify that your son was a gang member?
“[Juror No. 1:] Yes.
“[Ringold:] And you heard people testify that he participated in activities with other gang members; is that right?
“[Juror No. 1:] Yes.
“[Ringold:] Okay. I see the look on your face that it is—it seems like that’s—was painful information for you to hear about when you heard discussions about your son’s gang membership; is that right?
“[Juror No. 1:] Yes, because you bringing it all back up. Yes, it is.
“...
“[Ringold:] When you were in court a couple of years ago answering questions as a prospective juror on this case, I imagine then when the court and the district attorney or anybody asked you questions about gangs, did that bring up those same feelings about your son’s gang connections that I am bringing up by asking you these questions today?
“[Juror No. 1:] Yes, I thought about it.
“...
“[Ringold:] [S]ince you had sat during your son’s trial and heard all the testimony about his gang membership and what he had done as a gang member, you knew that information, then, when you were sitting as a prospective juror in this case, right?
“[Juror No. 1:] Yes, somewhat. But it didn’t really just hit me about my son. Because I really don’t, you know, like to talk about it.
“[Ringold:] Right. I understand that you don’t like to really talk about it. Is that the same feeling that—you don’t like to really talk about it; that was the reason why you intentionally did not tell the court about your son’s murder conviction?
“[Juror No. 1:] Yes. Yes.
“[Ringold:] Okay. And so when you say it didn’t really hit you, you are not saying that you didn’t know that your son was in a gang, right? You are just saying that you didn’t really feel like you wanted to tell anybody about it; is that right?
“[Juror No. 1:] Right.
“...
“[Ringold:] You intentionally lied when you answered the question of the judge, when the judge said to you, ‘No gang membership or incidents have touched anyone close to you?’ and you answered, ‘No.’ That was intentionally lying and not mentioning anything about your son, correct?
“[Juror No. 1:] Yes.
“[Ringold:] Okay. And that was because you just didn’t really want to talk about anything about your son because it is just a painful thing for you?
“[Juror No. 1:] Yes, because you told me that. You asked me that, and I said yes.”
On cross-examination, Juror No. 1 further explained why she had concealed her son’s murder conviction and gang involvement during voir dire: “[I]t was very, very hurting to me. You know. And I just felt like nobody, you know, just didn’t know what I went through. It was—I can’t just describe it. And I said, I just didn’t want to just like broadcast it to everybody, because I thought it wasn’t nobody’s business. I mean, you know, he is serving his time. And I just felt like it just wasn’t nobody’s business. You know. I know I probably was wrong, but that’s the way I felt. My heart just didn’t—didn’t want to open up.”
Holtz, who had conducted voir dire on appellant’s behalf, also testified at the evidentiary hearing. She stated that information about criminal charges against a prospective juror’s family member is “crucial” and is usually “the most fruitful area” for questioning during voir dire. Holtz explained that the defense did not want jurors with personal knowledge about gangs, and that if Juror No. 1 had been honest during voir dire, “I would have exercised a peremptory challenge because she would have revealed at that point to have a lot of knowledge about gang crimes and gang-related crimes and how gang members operate, and she would have been a juror that would have lots of personal information that I would not have wanted in this case.” On cross-examination, Holtz clarified that she would not automatically have exercised a peremptory challenge against someone solely because the prospective juror had a child in a gang, but she would have probed the prospective juror’s knowledge of the gang and attitudes toward gang members and law enforcement.
Appellant moved for a new trial based on juror misconduct. In opposition to the motion, the prosecution conceded that Juror No. 1 committed misconduct by intentionally withholding information during voir dire, but argued that appellant was not entitled to a new trial because he suffered no prejudice as a result of the misconduct. The trial court denied the motion for new trial. It found the juror had committed misconduct on voir dire, but there was no prejudice to appellant because there was no misconduct or bias affecting deliberations. The court stated, “There was overwhelming evidence of the defendant’s guilt of the charges. This was a very well-presented case.... [I]t took three weeks, there was lots of evidence, and all 12 jurors reached a unanimous decision. Again, it wasn’t a long deliberation, and there was no indication that she engaged in misconduct.” The court also noted, “If anything, this juror was biased in favor of the defense by her own comment and the things that she said in her testimony, and the fact that her son was convicted of murder and was in prison. Quite frankly, I do believe that if that information had been disclosed that the prosecution would have been the one to have exercised a peremptory challenge and excused that juror.” The court did not make a finding that Holtz would not have exercised a peremptory challenge against the juror, nor did it find that Holtz’s testimony regarding her criteria for jury selection lacked credibility.
The jurors began deliberating at 9:00 a.m. on Monday, April 21, 2003, and returned a verdict that afternoon at 1:50 p.m.
The trial court did not identify which of Juror No. 1’s statements it considered indicative of bias in favor of appellant.
Juror misconduct is one of the grounds upon which the court may grant a new trial. (§ 1181; see also People v. Nesler (1997) 16 Cal.4th 561, 590.) A party moving for a new trial on the ground of juror misconduct must show both the occurrence of misconduct and prejudice resulting from the misconduct. (People v. Nesler, supra, at pp. 580, 590.) It is undisputed that Juror No. 1 committed misconduct by intentionally concealing material information during voir dire. “‘A juror who conceals relevant facts or gives false answers during the voir dire examination... undermines the jury selection process and commits misconduct.’” (In re Hamilton (1999) 20 Cal.4th 273, 295.) The trial court found that Juror No. 1 was dishonest when questioned during voir dire. This finding is supported by substantial evidence, namely the testimony elicited from Juror No. 1 during the evidentiary hearing, in which she admitted to lying about her son’s conviction for murder and her knowledge of his gang involvement.
The question then, is whether there was resulting prejudice to appellant. Misconduct by a juror raises a presumption of prejudice, but the presumption is rebuttable. (In re Hamilton, supra, 20 Cal.4th at p. 295.) It may be rebutted in either of two ways: first, by an “‘“affirmative evidentiary showing”’” by the prosecution that prejudice does not exist, or second, by “‘“a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party”’” as a result of the misconduct. (In re Hitchings, supra, 6 Cal.4th at p. 119.) “We accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination.” (People v. Nesler, supra, 16 Cal.4th at p. 582.)
As Ms. Holtz explained in the new trial motion, the reason she would not have wanted Juror No. 1 on the jury was not that the juror was likely to have a personal animus against appellant, but because she may have known more than counsel would like about gangs.
Even taking this concern into account, we are satisfied that the trial court was justified in ruling there was no prejudice in this case.
Juror No. 1 knew her son was a gang member when he committed the crime that led to his state imprisonment for murder. Beyond that, no similarity was shown between his situation and that of appellant. Juror No. 1 had no independent information about this case or its setting. She testified that she had not known her son was a gang member before his trial, and the record does not inform us what she heard or learned about gangs during that trial. Nor is there any indication that she withheld information in order to be seated as a juror. Instead, her reason for withholding the information was that she regarded it as personal and painful, perhaps embarrassing, to talk about. Under examination in the new trial proceedings, she did not indicate any bias against gangs. To the contrary, she expressed sympathy for the appellant’s mother as well as for appellant (“even at trial I was really, really hurting, you know, because I know what I went through”). Juror No. 1 also testified that she never mentioned her son’s case during jury deliberations. Finally, the evidence against appellant was strong, and the jury required only a few hours of deliberation before reaching a verdict.
Given all of these circumstances, we conclude that the inference that Juror No. 1 was influenced in her vote by the facts that her son was a gang member and a convicted felon is speculative at best.
II
We turn next to appellant’s claim that the evidence does not support the true finding on the criminal street gang allegation. The argument has merit. As a general proposition, where the evidence is legally insufficient to support a finding, the former jeopardy rule prohibits retrial of that allegation. (See Burks v. United States (1978) 437 U.S. 1, 17-18; People v. Seel (2004) 34 Cal.4th 535, 550 (Seel).) But the error in this case may be traced to an error in instructions; if the jury had been properly instructed, the evidence supported a true finding. As we explain, the former jeopardy rule does not bar retrial in that situation.
A
“Under our state law, ‘“[t]o determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.]’ [Citation.] The standard under the due process clause of the Fourteenth Amendment is functionally identical. ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Lewis (2008) 43 Cal.4th 415, 507.) We apply the same standard of review to gang enhancements under section 186.22. (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.)
The existence of a criminal street gang is an element of the gang enhancement found in section 186.22, subdivision (b)(1). (In re Jose P. (2003) 106 Cal.App.4th 458, 466.) For the jury to find the existence of a criminal street gang, the prosecution must prove beyond a reasonable doubt that “the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses... during the statutorily defined period.” (People v. Gardeley (1996) 14 Cal.4th 605, 617, italics omitted; § 186.22.)
Appellant’s challenge to the sufficiency of the evidence focuses on the requirement that the commission of certain enumerated crimes be one of the primary activities of the gang. A finding that commission of one or more of the listed acts is a gang’s primary activity must be supported by “evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (Sengpadychith).) The qualifying criminal acts are enumerated in section 186.22, subdivision (e). (§ 186.22, subd. (f).)
The trial court’s instruction to the jury regarding the “‘primary activities’” element limited the qualifying criminal acts to “‘robbery, murder, or attempted murder.’” The court did not instruct the jury that the primary activity could include any of the other criminal acts listed in section 186.22, subdivision (e).
The jury is obligated to apply the law as stated in the court’s instructions, and we presume that it has done so. (People v. Harris (1994) 9 Cal.4th 407, 426.) Thus, the jury could not consider evidence of crimes other than robbery, murder, and attempted murder as qualifying criminal acts. The only evidence before the jury regarding the commission of robbery, murder, or attempted murder by any member of the Outlaws was the evidence of the offenses charged in this case. Although our Supreme Court has approved the use of charged offenses as evidence of a gang’s primary activities, it qualified that holding with a caveat: “Would such evidence alone be sufficient to prove the group’s primary activities? Not necessarily. The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.... ‘Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22... requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s].’” (Sengpadychith, supra, 26 Cal.4th at pp. 323-324.)
There is no substantial evidence that the Outlaws “consistently and repeatedly” engaged in robbery, murder, or attempted murder. If “occasional commission” of the enumerated crimes does not satisfy the definition of a primary activity (Sengpadychith, supra, 26 Cal.4th at p. 323), neither does the commission of three crimes in a single incident, at least on the facts of this case. (See People v. Perez (2004) 118 Cal.App.4th 151, 160 [evidence of “retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier” insufficient to establish consistent and repeated commission of enumerated criminal acts]; cf. People v. Vy (2004) 122 Cal.App.4th 1209, 1225-1226 [evidence of three separate assaults over a span of about three months, in which members of defendant’s gang attacked members of rival gangs, supported finding that the criminal activity was consistent and repeated].) We agree with appellant that the evidence is insufficient to support the jury’s implied finding that the Outlaws’ primary activities included robbery, murder, and attempted murder.
B
The question remains whether the former jeopardy rule bars retrial of the gang allegation on remand. Generally, “an appellate ruling of legal insufficiency is functionally equivalent to an acquittal and precludes a retrial.” (People v. Hatch (2000) 22 Cal.4th 260, 272; see also Burks v. United States, supra, 437 U.S. at pp. 17-18.) Yet, respondent contends retrial is not barred because double jeopardy does not apply to penalty allegations or, alternatively, because the issue is not one of evidentiary insufficiency but of instructional error.
In light of our Supreme Court’s recent decisions in Porter v. Superior Court (2009) 47 Cal.4th 125 (Porter) and its companion case, People v. Anderson (2009) 47 Cal.4th 92 (Anderson), we invited the parties to submit supplemental briefing on the application of former jeopardy protections in the present matter. For reasons we explain, double jeopardy would bar retrial of the gang allegation if the evidence of the primary activity element was insufficient as a matter of law. But the evidence presented at appellant’s trial would permit a jury, if properly instructed as to the applicable criminal acts, to find such acts were the Outlaws’ primary activities. Accordingly, double jeopardy does not bar retrial of the gang allegation on remand.
1
“‘[T]he Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.”’” (People v. Sloan (2007) 42 Cal.4th 110, 120-121, quoting Brown v. Ohio (1977) 432 U.S. 161, 165, italics omitted.) The present case implicates the first category of protection. (See Seel, supra, 34 Cal.4th at p. 550.) Generally, greater and lesser included offenses are treated as the “same offense” for purposes of double jeopardy. (Anderson, supra, 47 Cal.4th at p. 104.)
In some contexts, a sentence enhancement acts as “‘the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict’” on the underlying offense. (Seel, supra, 34 Cal.4th at p. 547; see also Sengpadychith, supra, 26 Cal.4th at pp. 326-327.) This principle derives from the United States Supreme Court’s holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Applying Apprendi to the sentence enhancement provisions of section 186.22, our Supreme Court concluded all elements of a gang allegation must be submitted to a jury and proved beyond a reasonable doubt when the enhancement increases the penalty for the underlying crime. (Sengpadychith, supra, 26 Cal.4th at pp. 326-327.) Although Apprendi and Sengpadychith concerned the constitutional guarantees of trial by jury and proof beyond a reasonable doubt, “the high court has indicated that the principles underlying the double jeopardy clause on the one hand, and the reasonable doubt burden of proof and right to jury trial on the other, are not wholly distinct.” (Seel, supra, 34 Cal.4th at p. 547.)
Our Supreme Court clarified the impact of Apprendi and its progeny on the application of double jeopardy principles in Seel. In that case, a jury convicted the defendant of attempted murder. (Seel, supra, 34 Cal.4th at p. 540.) The jury also found true the premeditation allegation, exposing the defendant to a greater penalty than the underlying crime, pursuant to section 664, subdivision (a). (Seel, at pp. 540-541.) The Court of Appeal reversed the finding of premeditation as unsupported by legally sufficient evidence. (Id. at p. 540.) Our Supreme Court concluded double jeopardy barred retrial of the premeditation allegation. (Id. at p. 550.) Applying the rationale of Apprendi, the court determined that the penalty provision based on premeditation was the functional equivalent of an element of a greater offense, because it exposed the defendant to increased punishment. (Id. at pp. 548-549.) The court acknowledged that penalty provisions based on prior convictions are not treated as elements of the offense, but noted that the United States Supreme Court has treated recidivism enhancements as “different for constitutional purposes.” (Id. at p. 548.) Unlike the fact of a prior conviction, the premeditation allegation concerned the circumstances of the charged crime. (Id. at p. 549.) Because the premeditation allegation effectively placed the defendant in jeopardy for a greater offense, the Court of Appeal’s determination of evidentiary insufficiency barred retrial under the double jeopardy clause. (Id. at p. 550.)
In light of Seel and Sengpadychith, we conclude that double jeopardy is implicated when a defendant is exposed to an increased penalty under section 186.22. That the underlying crime was committed for the benefit of a criminal street gang is a circumstance of the offense, making a gang enhancement more akin to an enhancement for premeditation than recidivism. Porter and Anderson, which held that double jeopardy did not bar retrial of penalty allegations, share a critical distinction from the present case—in neither case had a jury or court concluded that the evidence supporting the penalty allegation was insufficient as a matter of law. (Porter, supra, 47 Cal.4th 125 [trial court granted new trial on gang allegation under “13th juror” standard of § 1181, subd. (6)]; Anderson, supra, 47 Cal.4th 92 [jury deadlocked on kidnapping circumstance allegation].)
2
Whether double jeopardy requires dismissal of the gang allegation turns on whether evidence supporting the primary activity element was insufficient as a matter of law, or merely insufficient under the theory with which the jury was instructed. Reversible trial error, other than insufficiency of the evidence, does not trigger the protection of the former jeopardy rule. (Anderson, supra, 47 Cal.4th at p. 108; see also Jeffers v. United States (1977) 432 U.S. 137, 152.) For example, if there is sufficient evidence to support a theory of the case on which the jury was not properly instructed, retrial is not barred. (People v. Hallock (1989) 208 Cal.App.3d 595, 607;see also People v. Llamas (1997) 51 Cal.App.4th 1729, 1742-1743.) Thus, if a jury instructed as to all applicable criminal activities supporting the primary activity element could return a true finding on the gang allegation, retrial of the allegation is not barred.
Respondent contends there is evidence of the commission of qualifying crimes other than the charged crimes. This evidence consisted of testimony from an expert witness and from other Outlaw members regarding the Outlaws’ involvement in burglary, vehicle theft, and narcotics activity.
The prosecution called Detective Michael Gaitan to testify as a gang expert. Gaitan testified generally about a group he referred to as “Asian Criminals or ACS/Outlaws.” The prosecutor did not question Gaitan about the primary activities of this group. Gaitan testified that he became aware of the group in 2000 or 2001. When asked how he became aware of the group, he answered, “I had received information from some of the local high schools, particularly Cerritos High School, that there was a number of individuals who were calling themselves Asian Criminals or ACS/Outlaws, who hung around the park that was directly across the street from Cerritos High School there in the city of Cerritos. From what I was told, these individuals were into narcotics activity and also residential burglaries.”
Gaitan did not offer any support for these hearsay allegations by unnamed high school officials. He did not confirm whether the alleged crimes had, in fact, occurred, and if so, whether they were linked to the Outlaws by anything more than rumor. And he offered no opinion as to whether narcotics activity and residential burglaries were primary activities of the group or occasional acts. Nor was there testimony to clarify whether the alleged “narcotics activity” involved acts listed in section 186.22, subdivision (e), such as the manufacture, transportation, or sale of narcotics, or whether it involved unlisted acts such as personal possession or use of narcotics. Although expert testimony may be substantial evidence of a gang’s primary activities, such testimony must be specific and reliable. (Compare People v. Gardeley, supra, 14 Cal.4th at p. 620 [finding expert opinion based on conversations with defendant and fellow gang members, personal investigation of hundreds of gang crimes, and information from other law enforcement officials constituted substantial evidence] with In re Alexander L., supra, 149 Cal.App.4th at p. 612 [finding expert opinion that lacked foundation as to how expert knew of past crimes committed by gang did not constitute substantial evidence].) Accordingly, Gaitan’s testimony is not substantial evidence that narcotics activity or residential burglary is a primary activity of the Outlaws.
In contrast, Outlaw member Myong offered testimony regarding specific criminal acts committed by the Outlaws in addition to the charged acts. Myong testified that he, appellant, and another member of the Outlaws committed a residential burglary, during which they stole the two firearms subsequently used in the charged crimes. Myong also testified that four members of the Outlaws, including appellant, stole the Mercedes Benz later used in the charged crimes. The burglary and vehicle theft occurred in the two weeks preceding the charged crimes. Burglary and vehicle theft are among the qualifying offenses enumerated in section 186.22, subdivision (e).
In the context of a series of criminal activities, the charged crimes are not isolated criminal acts. (See People v. Vy, supra, 122 Cal.App.4th at p. 1226 [“consistent and repeated criminal activity during a short period before the subject crime” is substantial evidence to support the primary activity element of gang enhancement].) Had the trial court instructed the jury that it could consider burglary and vehicle theft in addition to murder, attempted murder, and robbery, substantial evidence would have supported a finding that the Outlaws consistently and repeatedly engaged in the enumerated criminal activities. Accordingly, our conclusion that there is not sufficient evidence to support the jury’s finding that the Outlaws’ primary activities included robbery, murder, and attempted murder is not tantamount to a conclusion that the evidence is legally insufficient to support the gang allegation. In the absence of such a conclusion, double jeopardy does not bar retrial of the gang allegation before a properly instructed jury. (People v. Hallock, supra, 208 Cal.App.3d at p. 607.)
III
On December 12, 2006, counsel for appellant moved for a new trial, in part on the ground that the prosecution had failed to disclose material evidence in violation of its obligations under Brady v. Maryland (1963) 373 U.S. 83 (Brady). The new trial motion focused on claims that the prosecutor failed to disclose evidence materially favorable to appellant. The evidence was claimed to afford a basis to discredit the testimony of the two trial witnesses who were not accomplices, James Kim and Sam Bae. As we have discussed, Bae was a victim in the shooting. Appellant characterizes Bae’s statements to police detectives that appellant was the shooter as “perhaps the most significant piece of evidence for the prosecution.” He provides a redacted version of a comment made by the trial court about Bae’s significance in the trial. The full statement was: “You know, this case is a little different from some cases in the sense that although Sam Bae’s credibility is critical to the ultimate determination of the jury’s decision, basically the prosecution was arguing that Sam Bae was a liar.”
The defense cited the failure of the prosecutor to provide timely disclosure of evidence that witness, James Kim, told the prosecutor that he identified appellant as the shooter because victim Sam Bae told him appellant shot him. Appellant also cited the failure of the prosecutor to divulge information regarding Bae’s membership in the Mental Boyz gang, his relationship with James Kim, whose moniker was Tiny and who was an associate of Mental Boyz, and a rivalry between the Outlaws and Mental Boyz.
The trial court denied the motion for new trial. It observed that it was the prosecution that argued that Bae was not credible on the witness stand and that he had been impeached. In addition, the court found many inconsistencies among the witnesses, including police witnesses. It found “that every inconsistency between various witnesses in this case is something that helps the defense. Ultimately, however, the jury is the trier of fact and they get to consider those inconsistencies, of which there were many.” It ruled that appellant was entitled to a fair trial, but not a perfect trial. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [Constitution entitles defendant “to a fair trial, not a perfect one”].)
As to the nondisclosure of James Kim’s testimony that Bae told him appellant was the shooter, the trial court found that Bae could have been recalled and cross-examined further on this issue, but the defense chose not to do so. The court held that the late discovery did not result in prejudice to the defense.
In regard to the evidence that was not produced regarding Bae’s gang membership and his relationship with Tiny, the court said it did not see how this would have undermined the validity of the verdict. It reasoned “Because everyone knows, based upon what was presented, that Tiny went to see Sam Bae in the hospital, and so obviously there was some relationship between Tiny and Sam Bae. I just don’t see how that would have, even if known, would have undermined the validity of the... verdict in this case.” Noting that Bae’s credibility had been called into question at trial “by everyone” and that the jury had to consider Bae’s prior statements to others, to the police, and the videotape of a police interview, the court concluded that further information about Tiny, or about Bae’s relationship to Tiny, would not have undermined the verdict.
The court stated that the result would not have been different if the defense had all of this information which had not been previously disclosed. It denied the motion for new trial.
We examine the applicable legal principles before addressing the undisclosed evidence as to James Kim and Sam Bae.
A
Legal Principles
“Brady v. Maryland[, supra,] 373 U.S. 83... held ‘that the suppression by the prosecution of evidence favorable to an accused... violates due process where the evidence is material either to guilt or to punishment.’ (Id. at p. 87.) Evidence is material ‘“if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”’ (Kyles v. Whitley (1995) 514 U.S. 419, 433-434.)” (People v. Gaines (2009) 46 Cal.4th 172, 183.)
The United States Supreme Court recently held that the rights under Brady do not extend to a postconviction context where a convicted prisoner brought an action under Title 42 United States Code section 1983, claiming a constitutional right to access to a particular type of DNA evidence. (District Attorney’s Office for the Third Judicial District v. Osborne (2009) __ U.S.__, 129 S.Ct. 2308, 2319.) This case is inapplicable here since it involves an effort to obtain new evidence through new DNA testing rather than a claim of Brady suppression of existing evidence.
“‘There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ (Strickler v. Greene (1999) 527 U.S. 263, 281-282, fn. omitted; accord, People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.)” (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51(Meraz).) The first and third components are at issue here.
As to the first component, evidence is “‘favorable’” if it hurts the prosecution or helps the defense. (People v. Earp (1999) 20 Cal.4th 826, 866.) “Stated another way, ‘[f]avorable evidence is evidence that the defense could use either to impeach the state’s witnesses or to exculpate the accused.’ (People v. Osband (1996) 13 Cal.4th 622, 665; see [U.S. v.]Bagley [(1985)] 473 U.S. [667,] 676 [(Bagley)].” (Meraz, supra, 163 Cal.App.4th at p. 51.)
The third component, materiality, involves a more complex analysis. “‘“[Materiality... requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.”’ [Citation.]” [Citation.] Thus, “[e]vidence is ‘material’ ‘only if there is a reasonable probability that, had [it] been disclosed to the defense, the result... would have been different.’ [Citations.] The requisite ‘reasonable probability’ is a probability sufficient to ‘undermine[] confidence in the outcome’ on the part of the reviewing court. [Citations.] It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.] Further, it is a probability that is, as it were, ‘objective,’ based on an ‘assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision,’ and not dependent on the ‘idiosyncrasies of the particular decisionmaker,’ including the ‘possibility of arbitrariness, whimsy, caprice, “nullification,” and the like.’ [Citation.]” [Citations.]’ (In re Sodersten [(2007)] 146 Cal.App.4th [1163,] 1226-1227.)” (Meraz, supra, 163 Cal.App.4th 28, 52; see also People v. Lewis (2009) 172 Cal.App.4th 1426 [distinction between relevance and materiality; evidence may be relevant yet not material].)
The standard analysis of error and prejudice are encompassed in these elements: “A showing... of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of ‘error’ and ‘prejudice.’ For, here, there is no ‘error’ unless there is also ‘prejudice.’ [Citations.]” (In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7.)
People v. Salazar, supra, 35 Cal.4th at page 1042 explained the standards for review of a ruling on a Brady claim: “Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim [citation], are subject to independent review. [Citation.] Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence. [Citation.]”
With these principles in mind, we turn to appellant’s arguments.
B
James Kim
James Kim testified that he was in P.C. Harvard on the night of the shooting with a group of friends that included Sam Bae, Arnold Park, Anderson Lee, and Arthur Chung. He followed Sam Bae outside to see what was going on. He saw Bae standing at the passenger side of a Mercedes Benz parked in front of the business. The occupant of the right front passenger seat had the lower half of his face from his nose down covered by a bandana. James Kim witnessed the shooting of Bae.
The prosecutor asked to approach sidebar and said: “I want to advise the court and counsel that I had an opportunity to talk to this witness. We were trying to subpoena witnesses. He indicated to me that although he admitted to making this identification, he said he made it because Sam had told him that Danny [appellant] was the shooter. So I just want—before I show it to him, I wanted to alert the court of that. I’m not sure if he’s telling me the truth or not on that, but at least he indicated that it was based on a hearsay statement that he received from Sam. Now, I asked Sam whether or not he had told anybody that Danny was the shooter and he denied it, so... [it] may be admissible even on that basis to impeach Sam. I just wanted to alert the court and counsel of that wrinkle.”
Defense counsel objected that she had not received discovery about this statement. The trial court ruled that this was “fair game for examination, as well as cross-examination.” Direct examination of Kim resumed and the prosecutor showed him the photo nine-pack and photo identification statement Kim had signed. When asked whether he identified appellant as the shooter, Kim said “Yes,” but that he was not really sure. Kim testified that his identification was based not on his observations but instead on what Bae told him. Kim said that Bae told him the shooter was a guy named Danny. Although he did not know Danny, Kim was able to select his photograph because one of the detectives told him the top left photo was of “Danny.” Kim testified that he did not actually see the face of the shooter.
On cross-examination, defense counsel confirmed this testimony. Kim testified that he never told the detectives that he could identify the people in the car. He explained that he told the prosecutor a month before trial that his identification of appellant was based on what someone else told him.
At sidebar, defense counsel again objected that no discovery of the conversation between the prosecutor and Kim was provided. The trial court admonished the prosecutor: “This is clearly exculpatory evidence and you had a Brady obligation to disclose it and not two minutes before the witness takes the stand.” The court told defense counsel she was entitled to an instruction to address the prosecutor’s violation of Brady and the attorney requested it.
After a recess, the prosecutor told the court no notes of the conversation at issue were taken. The jury was instructed with CALJIC No. 2.28 on the prosecutor’s failure to timely produce evidence regarding James Kim to the defense.
In support of the new trial motion, trial counsel for appellant declared that had she received this information prior to trial, “it would... [have] significantly impacted my overall trial strategy by letting me understand FROM THE OUTSET OF THE TRIAL that Mr. Bae had intentionally attempted to influence the identification of the only non-co-conspirator besides himself who purported [sic] identified defendant Kim as the shooter in this case.” (Capital lettering in original.) Knowledge of this information in advance, she declared, would have allowed her to cross-examine Bae following his testimony for the prosecution.
We note that on direct examination, the prosecutor had asked Bae whether he told James Kim that appellant was the shooter, and Bae first denied it, then said he could not recall what he said to James Kim.
Appellant argues the materiality of this evidence is disputed. He claims that by the time James Kim testified, the opportunity for effective cross-examination of Bae as to whether he told Kim the shooter was appellant “was gone.” In addition, he argues he would have impeached Detective Kading with the information that Kading told Kim which photograph was appellant’s.
Respondent notes that the prosecutor fully explored his conversation with Kim about the identification of appellant on direct examination. Respondent also cites the failure of defense counsel to seek a continuance to make more effective use of the material disclosed by the prosecutor and contends the failure of defense counsel to do so “further demonstrates that there was adequate time to effectively use the exculpatory evidence.”
As the trial court pointed out, once this information about Kim was revealed, the defense could have recalled Bae and examined him about telling Kim the shooter was appellant. It also could have recalled Detective Kading, who attended most of the trial, to cross-examine him about identifying appellant’s photograph for Kim. Kim’s revelation that his identification was based on information from Bae and Detective Kading was fully explored in examination by both counsel. “To establish a due process violation, a defendant must do more than show that ‘helpful’ evidence was withheld [citation]; a defendant must go on to show that ‘“there is a reasonable probability that, had [the evidence] been disclosed to the defense, the result... would have been different.”’ (In re Sassounian[, supra,] 9 Cal.4th [at p.] 544....)” (People v. Gaines, supra, 46 Cal.4th at p. 183.) We cannot conclude the result would have been different had defense counsel learned of this information earlier.
C
Bae
Bae, a victim of the shooting, identified appellant as the shooter in two interviews with police detectives. The first identification occurred shortly after he underwent surgery for his wound, and the second about a week later. At trial, Bae was extremely evasive, claiming he could not identify appellant as the shooter, could not recall making such an identification to the police, and that his recollection was not refreshed by either written transcripts of his statements or viewing a videotape of the second police interview. On both direct and cross-examination, he professed to be unable to recall much about the circumstances of the shooting. He claimed he had indentified appellant as the shooter only because appellant was the only person he knew in the photo lineups presented by the police. Although he told detectives he was able to identify appellant by his eyes, Bae recanted this testimony at trial and said he could not make an identification by seeing eyes only.
When asked whether he was a gang member, Bae repeatedly denied that affiliation. He denied knowing appellant through gang activities. He did admit that he had friends who “probably” were members of Mental Boyz, and that he had a moniker: “Lazy.” He testified that he did not know whether appellant was in a gang.
Bae testified that Detective Jin Chu came to visit him in the hospital and showed him some photographs. On cross-examination, he was asked if he told the police officers about Tiny. Bae said Tiny is a good guy he knew who used to be a bouncer at a club he frequented. According to Bae, Tiny spoke to Detective Chu.
The evidence claimed not to have been disclosed by the prosecution was: “(1) Sam Bae belonged to the Mental Boyz gang; (2) Tiny [James Kim], who associated with members of the Mental Boyz, acted as an ‘older brother’ to Sam; and (3) the Mental Boyz had a rivalry with [appellant’s] alleged gang, the Outlaws.” (Fn. omitted.)
Appellant’s trial attorney declared that had this information been disclosed, she would have impeached Bae’s denial of gang membership. But we note that another witness, Anderson Lee, testified that Bae was a member of Mental Boyz. Bae could have been recalled by the defense and impeached about gang membership in light of Lee’s testimony.
Defense counsel also argued that Bae concealed his association with the Mental Boyz, which would have demonstrated his animus toward appellant based on rival gang membership. This animus, it was asserted, made Bae willing to commit perjury by identifying appellant as the shooter, in an “effort to ‘get Danny.’” The evidence that Bae had a bias and motive to fabricate evidence, appellant contends, would have constituted significant exculpatory evidence, which would reasonably have changed the outcome in this case. Appellant also argues his defense would have engaged a gang expert to testify that a Korean gang member “‘may intentionally and falsely blame a member of a rival gang for a crime as “payback.”’”
Defense counsel said she would have called Tiny as a witness to explore his knowledge of, and participation in, Bae’s identification of appellant as the shooter.
Appellant argues that evidence of Bae’s membership in the Mental Boyz, a rival gang to the Outlaws, casts doubt on the credibility of Bae’s identification of appellant as the shooter.
Respondent argues the information about Bae’s affiliation with the Mental Boyz and friendship with Tiny was not material, and in any event was disclosed or otherwise known to the defense. The existence of a rivalry, if any, between the Mental Boyz and the Outlaws was not exculpatory and, if anything, strengthened the prosecutor’s case by providing a motive for appellant to shoot Bae and Arthur Chung.
Even when impeached with a videotape, Bae denied identifying appellant as the shooter.
Respondent also argues evidence of Bae’s membership in Mental Boyz was cumulative. As we have seen, Anderson Lee had testified that Bae was a member of the Mental Boyz. The undisclosed information, respondent contends, was “little more than police reports and an appellate brief from other cases documenting that same affiliation.”
Respondent contends that the defense was aware of the relationship between Tiny and Bae because it was defense counsel who elicited testimony about Tiny from Bae on cross-examination. Respondent questions why Bae recanted his identification of appellant at trial if, as suggested by appellant, his true motive was to implicate appellant as payback due to the rivalry between their gangs.
Respondent’s most compelling argument is that disclosure of Bae’s gang ties would not have been favorable to the defense because it would have provided strong evidence of a motive for appellant to shoot Bae. Because this evidence could have supplied a motive for the shooting, respondent argues appellant cannot demonstrate materiality because it cannot show a reasonable probability of a different result.
We agree with respondent that the evidence regarding Bae was not material on this record. As we have discussed, there already was evidence that Bae was a gang member. In addition, there was evidence that Tiny had a relationship with Bae and with one or more police officers. Undisclosed information that would tend to impeach a prosecution witness, but that is merely cumulative of evidence presented at trial to impeach the same witness, is not material within the meaning of Brady and Bagley. (People v. Dickey (2005) 35 Cal.4th 884, 908.)
California courts have held: “‘Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant’s investigation for him. [Citation.] If the material evidence is in a defendant’s possession or is available to a defendant through the exercise of due diligence, then... the defendant has all that is necessary to ensure a fair trial...’ [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1134, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, italics omitted.)
We conclude that appellant failed to demonstrate a reasonable probability that the evidence regarding Bae that was not disclosed would have led to a different result or that it was sufficient to undermine confidence in the outcome of the trial. (Meraz, supra, 163 Cal.App.4th at p. 52.)
IV
Appellant asserts the trial court erred in its handling of an extended coverage request by media, and that the error requires reversal of his convictions. The short answer to this claim is that there is no showing that appellant suffered any prejudice as a result of whatever extended coverage occurred, or that any error was “structural” so as to obviate the need for a showing of prejudice.
At a hearing in early January 2003, the attorney for co-defendant Park noticed that media personnel had taken photographs of the defendants and asked the court whether an extended coverage order had been signed pursuant to former California Rules of Court, rule 980. Counsel stated that he wanted to file written opposition to such coverage. The court said that it had asked the clerk to show the extended coverage request to counsel and there had been no objections. Park’s attorney said that he objected, and asked to be heard. The court indicated that it had not heard counsel, but saw no problem since identity was not an issue in the case. Park’s counsel responded that identity was an issue (which, as we have seen, it was).
The focus of counsel’s concern appeared to be problems that might arise from Park’s photograph appearing in a newspaper. The attorney opposed allowing the press to take pictures of Park, and asked for an opportunity to research the issue. At that point appellant’s counsel joined in co-defendant’s request, and said that she had received notice that morning of a media intent to photograph Kim, and that she planned to object. The court reiterated that it did not see how defendants could be prejudiced by such photographs, and concluded the issue by stating that it had signed the order and, “That’s it.”
As counsel for appellant acknowledges, the record before us is not entirely clear as to just what written request for extended coverage was made or when it was made.
Jury selection in the case did not commence until almost three months after this hearing. The briefing does not inform us what photographs were taken or what, if anything, was shown in newspapers or other media. There is no showing or suggestion that what media coverage there was created anything like the circus atmosphere that tainted the trial that led to the condemnation of such excess in Estes v. Texas (1965) 381 U.S. 532.
Assuming photographs of appellant, or of appellant with the co-defendant, had been published, there was a full opportunity at voir dire for counsel to inquire whether any prospective juror had seen such pictures and whether such exposure might affect his or her ability to put the exposure aside and decide the case solely on the evidence presented at trial. By the same token, if there was a concern that any identifying witnesses might have been influenced by such exposure, that too could have been explored by direct or cross-examination.
We agree that the trial court could have developed a record that reflected adherence to the factors and procedural steps in former California Rules of Court, rule 980(e). But, although the court had denied the request of counsel when the matter was considered in January 2003, counsel had months within which to renew their request which, by then, could have been supported by declarations as to what media coverage there had been. No such application or showing was made. The record before us is simply devoid of a showing that whatever extended coverage was allowed prejudiced appellant.
Nor is there a basis to apply a “per se reversal” approach to such error as may have occurred. That drastic remedy is reserved for cases that defy harmless error analysis, such as total deprivation of counsel at trial, or denial of the right to jury trial where it applies and was neither forfeited or waived. (See Arizona v. Fulminante (1991) 499 U.S. 279, 308-311.)
Accordingly, even assuming trial court error in handling the extended coverage objections, we see nothing that warrants reversal of the convictions.
V
Appellant argues the court committed federal constitutional error in sentencing him to consecutive terms without a jury determination of the factors that led to this sentence choice. This issue recently was laid to rest in the United States Supreme Court’s opinion in Oregon v. Ice (2009) __ U.S. __ [129 S.Ct. 711]. In that case the court held that the Sixth Amendment guarantee of the right to jury trial does not preclude imposition of consecutive, as opposed to concurrent, sentences for discrete offenses based on a judge’s findings regarding aggravating facts. (Oregonv. Ice, supra, __ U.S. at p. __ [129 S.Ct. at p. 719].) The California Supreme Court has reached the same result. (People v. Black (2007) 41 Cal.4th 799, 823.)
DISPOSITION
The judgment is reversed as to the criminal street gang enhancement and the matter remanded for retrial should the prosecution so elect, and re-sentencing. In all other respects, the judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.