Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF103139B
CANTIL-SAKAUYE, J.
Defendant, responding to a perceived slight by a group of young White men he encountered one night at a gas station, fired a gun several times, killing Randy Holloway and injuring his brother Ryan Holloway. For these acts of mindless violence, a jury convicted defendant of first degree murder (Pen. Code, § 187) with enhancements for personally using a firearm (§ 12022.53, subd. (d)) and benefiting a criminal street gang (§ 186.22, subd. (b)(1)), possession of a firearm by a gang member (§ 12025, subd. (b)(3)), carrying a loaded firearm by a gang participant (§ 12031, subd. (a)(2)(c)), and street terrorism (§ 186.22, subd. (a)). The court sentenced defendant to 52 years to life in state prison.
Subsequent undesignated statutory references are to the Penal Code.
The jury acquitted defendant on one count of attempted murder and one count of assault with a deadly weapon. The jury hung on two counts of attempted murder, including the count for which Ryan Holloway was the victim.
On appeal defendant contends the trial court erred in not instructing on accomplices. He asserts three men present that night, his companions, Randy Plan and Dara Roeun, and an acquaintance Teddy Dodson, were accomplices and the court should have instructed that their testimony, which identified defendant as the shooter, should be viewed with caution and required corroboration. He contends the trial court erred in permitting the jury to consider gang evidence on the issue of motive when such evidence was really only inadmissible evidence of bad character. He contends the court should have instructed on provocation reducing the degree of murder, or counsel was ineffective in failing to request the instruction. Finally, defendant contends there was insufficient evidence of street terrorism and the sentence on all counts except murder should have been stayed under section 654.
The Attorney General concedes that the three counts and the enhancement based on gang membership must be reversed because defendant’s gang, Little Ruthless Criminals, did not meet the statutory definition of a criminal street gang under section 186.22, subdivision (f). We accept the Attorney General’s concession and otherwise affirm.
FACTS
The Shooting
One night in January 2007, Randy Holloway was celebrating a new job. He, his brother Ryan, and friends Corey Cummings, Jason Sperry and Jason Stevenson went to several bars and had many pitchers of beer. They stopped and picked up Eddie Kirby. Ryan rode with Kirby in his pickup truck. The group stopped at a Chevron station so Kirby could buy gas.
That same night a black Acura, containing Dara Roeun, Randy Plan and defendant, arrived at the same gas station. The car belonged to Roeun’s sister, but he was drunk so he let Plan drive. Plan and defendant were members of the Little Ruthless Criminals (LRC) gang. Roeun was a member of the Hickock Kill Squad (HKS), a gang that associates with LRC.
At the gas station, Plan saw a friend, Teddy Dodson, a HKS gang member who ran guns and dope. Dodson was driving a white Acura and had stopped to buy a soda. Plan, wearing red, got out to buy gas. At night, customers had to go to a window to purchase gas or other items. At the window, Plan encountered the Holloway group, consisting of six White men, who were loud, drunk and talking about playing Texas Hold ‘Em. One of the Holloway group asked Plan what nationality he was. Plan responded Cambodian. Dodson and defendant began to walk towards Plan until he motioned them to back off.
Plan initially told the police one of the White guys called him a “gook.” At trial he denied this happened and explained he told the police that because he was “just trying to defend myself.”
A problem arose between the two groups. Stevenson, in the Holloway group, stared at the Asians. The stare was described at trial as “mean-mugging,” a hard stare that is a sign of disrespect to a gang member. Stevenson complained to Randy Holloway that the Asians were “dogging me.” Holloway told Stevenson not to worry. Defendant, who was wearing dark, baggy clothes, pulled a blue bandanna over his face and went towards Kirby’s truck. He chased Stevenson around the truck, yelling that he could not leave. Defendant yelled three letters that appeared gang related. Randy Holloway told defendant he and his companions did not want any problems. Defendant grabbed Holloway and punched him. As Holloway began to return the hit, defendant fired several shots and Holloway fell. Defendant continued firing and got back in the black car, which took off. Dodson took off in the white car. Kirby then beat up Stevenson because he thought he had started the fight.
Randy Holloway was shot three times: a shot to the upper chest, a grazing shot to his right groin that went into his abdomen, and a shot in the top of his left foot. Both the shot to the chest and to the groin were lethal, causing massive bleeding. Holloway died from shock and hemorrhage due to multiple gunshot wounds. He bled to death. Ryan Holloway was shot above the ankle. He had surgery a few months later to remove the bullet.
Members of the Holloway party and other customers present that night described the shooter as a short, chunky Asian man, wearing dark clothing. One described the shooter as having a “fat forehead, little fat eyes.” Because the shooter wore a bandanna over his face, these witnesses could not identify him. One of the witnesses, J. D., who was in line at the cashier’s window, testified the Asian man at the window was wearing dark clothes and was the shooter. She identified him at the preliminary hearing as Plan. Other witnesses said the Asian man at the window was wearing red and was not the shooter.
Almost two months after the shooting, defendant and Plan were arrested in Vancouver, Washington. At the residence in Washington, police found significant indicia of occupancy relating to defendant, but not to Plan. They found several cell phones. One phone had a picture of defendant with a blue bandanna around his neck. The picture was dated three days after the shooting.
Testimony of Plan, Roeun and Dodson
The initial information charged defendant, Plan and Roeun with all the gang offenses. Plan and Roeun were not charged with murder, attempted murder or assault, but were charged with being accessories after the fact. After defendant’s motion to sever was granted, the amended information named defendant as the sole defendant.
Plan, Roeun and Dodson testified at trial; Plan and Dodson identified defendant as the shooter. Plan made a deal with the prosecution to testify in exchange for a reduction in charges and a five-year sentence. He testified that after the shooting he learned he was wanted and hid out in Modesto. About two weeks later he stole a car and fled to Vancouver, Washington. Plan claimed he wanted to see his son before he turned himself in. Defendant went with him to Vancouver.
Plan pled guilty to a violation of section 32 (accessory after the fact) and admitted a gang enhancement pursuant to section 186.22, subdivision (b)(1).
Plan testified to the events at the gas station. He went to the window to buy gas and some White guys questioned his nationality. He was concerned they might be racists. Defendant and Dodson started to come to his assistance; he did not need assistance so he motioned them to back off. Plan saw several White guys near the pumps talking “back and forth” with defendant. Defendant went towards the truck and chased a White guy. Defendant fired towards the truck, then got back in the car. Plan told the police in Washington that defendant admitted he was the shooter, although that was not true. Before the shooting, Dodson was “running his mouth,” telling the White guys “don’t fuck with [defendant] or he’ll kill you.” Plan testified he took the gas nozzle out of his car before he finished pumping his gas “[be]cause I thought we was supposed to fight.” He claimed he tried to settle defendant down, but Dodson was pumping him up by “running his mouth.”
Roeun refused to testify until the prosecution agreed to drop the charges against him. He admitted being at the Chevron station that night with Plan and defendant. He claimed he was drunk, in the back seat, and never got out of the car. He saw two guys fight; the short guy in a hoody could have been defendant. He was reluctant to identify the shooter. He said only that he heard “popping” and was not sure if it was gunshots. Roeun had told the police he saw defendant fight and run back to the car. Defendant had a blue rag around his face.
The major break in the case came when the police identified Dodson’s car from a surveillance video from the nearby Wal-Mart. The police interviewed Dodson. At first they believed he was lying, so they told Dodson he could be charged as an accessory. Dodson then gave a detailed description of the events that night, but he was reluctant to identify the shooter. Eventually, he identified defendant. Dodson identified Stevenson as the one “mean-mugging.”
Dodson originally refused to testify, despite a grant of immunity. He agreed to testify only after the court threatened him with contempt. At trial, Dodson was again reluctant to identify the shooter; he said he could be killed if he was labeled a snitch. He admitted he “might” have been at the Wal-Mart for a drug transaction. He identified Plan and Roeun and referred to a “third guy.” He said the “third guy” hit a tall, White guy. The White guy hit back and then there were gunshots. Dodson admitted he had told the police that the “third guy” was “Phan” and he knew defendant as “Phan.” Dodson identified Plan, Roeun, and defendant to the police and where each was sitting in the car.
Gang Expert Testimony
Police officers testified to three contacts with defendant in 2006 during which he claimed membership in the LRC gang for 13 years. A member of the Gang Street Enforcement Team testified LRC and HKS were different gangs, one Blood and one Crip, but they were pretty much the same as the members were related.
Paul Gutierrez, a detective in the Gang Violence Suppression Unit, testified as a gang expert. He specialized in Asian criminal street gangs. He testified LRC was documented as a criminal street gang January 6, 2007, the date of the shooting. LRC had eight members and two associates. LRC was a Crip gang and associated with the color blue. It qualified as a criminal street gang under section 186.22, subdivision (f). HKS was also a criminal street gang, a Blood gang associated with the color red. LRC and HKS associated together; members lived in the same neighborhood and many were related. The two gangs had the same enemies. Graffiti representing both gangs was found together. Their turf was the Comstock/Hickock area. Gutierrez testified defendant was an active participant in LRC, a well-respected member.
Gutierrez testified to two other gang-related crimes. Jefferson El, a LRC member, was convicted of several robberies with a firearm enhancement. The crimes were committed in July 2007. Brian Sum, a documented member of HKS, was convicted in January 2006 of attempted murder. The crime occurred in May 2005.
Gutierrez also explained “mean-mugging” as a derogatory stare-down. To a gang member, it was a sign of complete disrespect. If a gang member was “mean mugg[ed]” in the presence of fellow gang members, he had a duty to act, or he would be “considered a bitch.” The failure to respond meant he was not one of the gang; he could be assaulted or kicked out of the gang. He would be labeled “a bitch” and his status diminished. Yelling letters during a crime could serve to identify the gang and increase its status, as gangs used fear and intimidation.
DISCUSSION
I.
The Failure to Instruct on Accomplice Testimony Was Harmless
Defendant contends the trial court erred in refusing the defense request to instruct the jury to determine if Plan, Roeun and Dodson were accomplices, and if so, to view their testimony with caution and require that it be corroborated. Defendant contends there was sufficient evidence from which the jury could conclude all three were accomplices and the failure to instruct on the need for corroboration was prejudicial because only these witnesses identified defendant as the shooter.
Defendant contends the trial court should have given Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 334, which provides: “Before you may consider the (statement/[or] testimony) of __________ as evidence against the defendant/ _________ [regarding the crime[s] of __________], you must decide whether __________ (was/were) [an] accomplice[s] to (that/those) crime[s]. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if:
The Law on Accomplice Testimony
Section 1111 provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
To be chargeable with an identical offense, a witness must be considered a principal under section 31. (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114.) Under that section “principals” include “[a]ll persons concerned in the commission of a crime,... whether they directly commit the act constituting the offense, or aid and abet in its commission....” (§ 31.) A mere accessory is not an accomplice. (People v. Horton, supra, at p. 1114.) An accomplice must have “‘guilty knowledge and intent with regard to the commission of the crime.’” (People v. Hoover (1974) 12 Cal.3d 875, 879.) An aider and abettor is guilty not only of the intended crime, but also any other offense that is the natural and probable consequence of the intended offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
“Whether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed. [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) “Factors to be considered by the trier of fact in determining ‘whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.’ [Citation.]” (People v. Garcia (2008) 168 Cal.App.4th 261, 273.)
The failure to instruct based on section 1111 is an error of state law, subject to the reasonable probability standard of harmless error under People v. Watson (1956) 46 Cal.2d 818, 836-837. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) The failure to give an instruction on accomplice testimony is harmless where the witness’s testimony was sufficiently corroborated. (People v. Zapien (1993) 4 Cal.4th 929, 982.) “Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.” (People v. Hayes (1999) 21 Cal.4th 1211, 1271.) Corroborating evidence “is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” (People v. Fauber (1992) 2 Cal.4th 792, 834.)
Analysis
Although neither party mentions it, we note that Plan and Roeun were originally charged, and held to answer, on the crimes of possession of a firearm by a gang member, carrying a loaded firearm by an active gang participant, and street terrorism. The fact that a witness was originally prosecuted for the same offense as defendant but then granted immunity does not establish that he is an accomplice as a matter of law, but it does create a factual issue for the jury. (People v. Garrison (1989) 47 Cal.3d 746, 772; People v. Tewksbury (1976) 15 Cal.3d 953, 960.) Certainly as to the gang offenses, the trial court should have instructed the jury to consider whether Plan and Roeun were accomplices. However, since we reverse those counts on another ground, the proper focus is whether Plan, Roeun or Dodson could be considered accomplices to murder. If so, their testimony required corroboration. We conclude Plan and Dodson could have been found to be accomplices to murder. The failure to instruct on accomplice testimony, however, was harmless because there was sufficient corroborating evidence.
The reason for the rule requiring accomplice testimony to be viewed with caution and corroborated is because an accomplice has a natural incentive to minimize his or her own guilt and to enlarge that of others charged with the offense. (People v. Brown (2003) 31 Cal.4th 518, 555.) This rationale is applicable to all three witnesses, Plan, Roeun and Dodson. They were charged, or in the case of Dodson threatened with charges, and testified only under grants of immunity, dismissed charges, and plea bargains.
Defendant contends Plan could have been an accomplice, pointing to evidence, such as J. D.’s testimony, that supported the defense theory that Plan was the shooter. The Attorney General responds this evidence shows only that Plan, rather than defendant, acted alone. We find this and other evidence that suggests Plan was an accomplice. All of the factors cited in People v. Garcia, supra, 168 Cal.App.4th at page 273, to be considered in determining aider and abettor status--presence, failure to prevent the crime, companionship, flight, and conduct before and afterwards--support a finding that Plan was an accomplice.
Evidence of Plan’s gang affiliation and the gang lifestyle, as well as his actions that night and afterwards, would support a finding that Plan aided and abetted defendant in the murder. Detective Gutierrez testified that in gang culture the members look out for each other and have each other’s back; retaliation is necessary to preserve status. The greater the crime in retaliation, the greater the status. Plan was LRC, as was defendant. When Plan had the questionable exchange with members of the Holloway group at the Chevron window, defendant and Dodson were ready to come to his assistance. Likewise, Plan was ready to assist defendant to confront Stevenson. He testified he stopped pumping gas because he was getting ready to fight. After the shooting, he drove defendant away and later helped him flee to Washington. The jury could conclude that Plan was ready to attack the Holloway group to avenge a slight and the greater the attack, the better. If one intends a sufficiently violent assault, the jury could find murder was a natural and probable consequence. (People v. Prettyman (1996) 14 Cal.4th 248, 267.) From this evidence of Plan’s intent to join in the confrontation, the jury could find that Plan acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
Dodson was also ready to come to the aid of a fellow gang member when Plan was at the Chevron window. According to Plan, Dodson was “running his mouth” when defendant chased Stevenson and his words served to “pump up” defendant. The Attorney General argues Dodson was not encouraging defendant because he was warning the Holloway group “not to fuck” with defendant or he would kill them. The evidence is susceptible of differing interpretations--a threat, a boast or a warning--raising a factual issue for the jury. The jury could conclude that in “pumping up” defendant, Dodson was encouraging defendant and thus aiding and abetting the murder. (People v. Lee (2003) 31 Cal.4th 613, 623.)
As defendant recognizes, the case for Roeun as an aider and abettor to murder is considerably weaker, relying almost exclusively on his gang member status. There was no evidence that Roeun got out of the car or participated in the confrontation between the two groups. Any inference as to what he knew about defendant’s plans that night is countered by the evidence he was drunk. The trial court did not err in failing to instruct that Roeun could be considered an accomplice to the murder.
The court’s failure to instruct as to the possible accomplice status of Plan and Dodson, and to thus view their testimony with caution, was harmless because their testimony and particularly their identification of defendant as the shooter was corroborated by other evidence. Defendant’s fingerprint was found on the passenger seat visor mirror of Roeun’s car. A witness testified the shooter got back into the passenger seat after the shooting. After the shooting, defendant fled to Washington, taking numerous possessions with him, displaying a consciousness of guilt and corroborating the testimony of Plan and Dodson that he was the shooter. (People v. Garrison, supra, 47 Cal.3d 746, 773.) A picture of defendant with a blue bandanna around his neck, similar to that worn by the shooter, was taken three days after the shooting.
Defendant objects that this corroborating evidence is of little probative value. Corroborating evidence, however, “‘may be slight and entitled to little consideration when standing alone.’ [Citations.]” (People v. Tewksbury, supra, 15 Cal.3d at p. 969.) The failure to instruct on accomplice testimony was harmless.
II.
The Trial Court Did Not Err in Instructing Gang Evidence Could Be Used to Show Motive
Defendant contends the trial court erred in instructing the jury that it could consider gang evidence on the issue of motive for the murder. Defendant objects to Detective Gutierrez’s testimony about “mean-mugging,” which Gutierrez described as a stare-down and a complete sign of disrespect. Gutierrez testified a gang member who was mean-mugged would have a duty to react or “he would be considered a bitch.” Defendant contends this gang evidence was simply evidence of bad character and inadmissible under Evidence Code section 1101, subdivision (a). Further, defendant contends there was no evidence he saw the mean-mugging, so it was irrelevant to his motive.
Although defendant frames his contention as one of instructional error, his argument also objects to the admission of certain gang evidence. We first consider whether it was error to admit the gang evidence of motive. Second, we consider whether the trial court erred in instructing the jury it could consider this evidence to show defendant’s motive. We find both contentions meritless.
Background
Before trial the defense objected to the admission of gang evidence to show motive, noting there was no rival gang involved and evidence of what a person was thinking was speculative. The trial court responded that gang evidence was admissible to show intent under the gang enhancement and to show motive. The prosecutor chimed in that evidence of gang mentality was relevant to explain the concept of disrespect leading to a shooting. The court cautioned, “We’re getting ahead of ourselves.” The court ruled the People could call a gang expert. Whether some questions were objectionable would be determined on a question-by-question basis and the court would rule at that time. When Detective Gutierrez testified about mean-mugging and the need for retaliation, there was no objection by the defense. Gutierrez testified that even a wrong look from a non gang member could be considered disrespect and a gang member who failed to respond could be beaten up or kicked out of the gang.
Both the prosecution and the defense used this evidence of motive to its advantage. The prosecution argued that killing someone for looking at you was not reasonable and made no sense, “but unfortunately it is the life of the defendant. It is their reason for existence and that’s how they exist.” The defense argued Plan and Dodson, not defendant, had the motive to shoot. Plan was insulted at the window and Dodson believed Jason Stevenson was mean-mugging him.
The Attorney General argues defendant forfeited this claim because he failed to object specifically to Gutierrez’s testimony. (Evid. Code, § 353, subd. (a).) “Although defendant made a general objection to the admission of gang evidence prior to trial, this was insufficient to preserve this claim. [Citations.]” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208.) Further, defendant’s use of the motive evidence in closing argument could be considered acquiescence in the ruling that forfeits the right to attack it on appeal. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 394, p. 452.) In any event, it was not error to admit Gutierrez’s testimony.
Gang Evidence is Admissible to Show Motive
“California courts have long recognized the potential prejudicial effect of gang evidence. However, they have admitted such evidence when the very reason for the crime, usually murder, is gang related. [Citations.]” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) “It is proper to introduce evidence of membership in a gang or any type of group which relates to a question in issue such as motive. [Citations.] Thus, it has repeatedly been held that it is proper to introduce evidence which is even unpleasant or negative pertaining to an organization in issue which is relevant on the issue of motive or the subject matter at trial.” (People v. Frausto (1982) 135 Cal.App.3d129, 140.)
Evidence from a gang expert explaining a gang’s retaliation for disrespect by rival gang members is admissible to show motive; it is highly relevant to explain how and why the murder occurred. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.) Defendant contends it is the gang rivalry that creates the motive, not the defendant’s gang affiliation. He argues that a gang member’s “duty” to retaliate when there is disrespect is not motive, but bad character. In defendant’s view, the defendant must have a “unique reason” to kill or attack for the evidence to show motive. Defendant cites no authority that gang evidence is admissible to show motive only where a rival gang is involved. Expert testimony about gangs is admissible to explain retaliation against non gang members. For example, in People v. Gardeley (1996) 14 Cal.4th 605, a gang expert explained why an attack on a non gang member who was urinating in an area where the gang sold drugs was gang-related activity. The gang expert testified: “It is common practice for several gang members acting in concert to assault a person in full view of residents of an area where the gang sells drugs. Such attacks serve to intimidate the residents and to dissuade them from reporting the gang’s drug-dealing activities to police. Gang members typically view a dispute or argument with someone who is not a member of the gang as a ‘challenge’ to the gang’s authority, and they respond by trying to ‘dominate’ the person physically,...” (Id. at p. 613.) Here the defendant’s motive was retaliation for disrespect; it explained how and why the murder occurred. According to Gutierrez, disrespect provided a motive even without rivalry.
Because motive is often the incentive for criminal behavior, particularly in gang cases, its probative value generally exceeds its prejudicial effect, and trial courts have wide latitude in admitting evidence of motive. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) “Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v. Martin (1994) 23 Cal.App.4th 76, 81.)
The trial court did not err in admitting Gutierrez’s testimony about mean-mugging and retaliation.
There Was No Instructional Error
Defendant contends it was error to instruct that the jury could consider gang evidence on the issue of motive because there was no evidence that defendant saw the “mean-mugging.” Defendant contends the trial court refused to instruct on manslaughter because there was no evidence defendant “saw the look” or heard anything. Defendant argues his trial was grossly unfair because the motive evidence was used only against him, but not in his favor.
The court instructed the jury: “You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose and knowledge that are required to prove the gang-related crimes and enhancements charged in this information, or the defendant had a motive to commit the crimes charged. You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crimes.”
There was evidence that defendant was aware of the “mean-mugging” or other perceived slight, so it was proper to instruct that gang activity could be used to show motive. Plan testified the White men asked him what nationality he was. He had told the police they called him a “gook,” but at trial denied they did so. Whatever the comment was, according to Plan it caused defendant and Dodson to walk towards him until he gave a hand signal to back off. Plan further testified the White guys were “talking back and forth” with defendant. Dodson testified the White guys were mean-mugging “the other guy” with Plan and Roeun. He was reluctant to identify that person at trial, but told the police it was Phan and he knew defendant as Phan. He also testified the White guys were mean-mugging the three Asian guys by the pump.
There was no unfairness in using the motive evidence. Although there was evidence defendant saw the “mean-mugging,” the court did not err in refusing an instruction on manslaughter. An objective, reasonable person standard of provocation applies when determining whether the provocation reduces the crime of murder to manslaughter. (People v. Steele (2002) 27 Cal.4th 1230, 1253.) The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Berry (1976) 18 Cal.3d 509, 515.) Staring at someone, even a hard stare, would not provoke a reasonable person to violence. Furthermore, aside from the stare, the Holloway group did nothing provocative. Randy Holloway told defendant that he and his companions did not want any problems. There was insufficient evidence to support an instruction on manslaughter.
Finally, we note the instruction expressly told the jury not to use the gang evidence to show defendant had a bad character or disposition to commit the crime. We presume the jury followed the instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
III.
Defendant Was Not Prejudiced by the Failure to Give CALCRIM No. 522 on Provocation
Defendant contends the trial court erred in failing to instruct sua sponte with CALCRIM No. 522 on provocation that reduces the degree of murder from first to second degree. If the court was not required to give the instruction sua sponte, defendant contends counsel was ineffective in failing to request it.
CALCRIM No. 522 reads: “Provocation may reduce a murder from first degree to second [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.] [¶] [Provocation does not apply to a prosecution under a theory of felony murder.]”
The trial court has a duty to instruct on the general principles of law closely and openly connected with the evidence which are necessary for a jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) The trial court has no sua sponte duty, however, to give a “pinpoint” instruction that “relates particular facts to an element of the charged crime and thereby explains or highlights a defense theory.” (People v. Mayfield (1997) 14 Cal.4th 668, 778.)
Our Supreme Court recently held that the predecessor to CALCRIM No. 522, CALJIC No. 8.73, is a “‘pinpoint instruction’ relating particular evidence to an element of the offense, and therefore need not be given on the court’s own motion.” (People v. Rogers (2006) 39 Cal.4th 826, 878 (Rogers).) CALJIC No. 8.73 relates evidence of provocation to the legal issue of premeditation and deliberation. (Rogers, at pp. 878-879.) Because it is substantively identical to CALJIC No. 8.73, CALCRIM No. 522 is also a pinpoint instruction that need not be given absent a request. (See Rogers, at pp. 878-879, citing Judicial Council of Cal., Crim. Jury Instns. (2005) Bench Notes to CALCRIM No. 522.)
A trial court must give a pinpoint instruction, even when requested, only if it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39.) “The evidentiary premise of a provocation defense is the defendant’s emotional reaction to the conduct of another, which emotion may negate a requisite mental state.” (People v. Ward (2005) 36 Cal.4th 186, 215.) “Provocation of a kind, to a degree, and under circumstances insufficient to fully negative or raise a reasonable doubt as to the idea of both premeditation and malice (thereby reducing the offense to manslaughter) might nevertheless be adequate to negative or raise a reasonable doubt as to the idea of premeditation or deliberation, leaving the homicide as murder of the second degree; i.e., an unlawful killing perpetrated with malice aforethought but without premeditation and deliberation.” (People v. Thomas (1945) 25 Cal.2d 880, 903.)
The Attorney General contends there was insufficient evidence of provocation to support giving CALCRIM No. 522. A gang challenge is not necessarily sufficient evidence to support giving the instruction on provocation. In People v. Ward, defendant and a companion walked in an area associated with the Lynwood Neighborhood Crips gang. The Ghost Town Crips were rivals. The victim said, “‘There’s some Ghost Town.’” Defendant’s companion said, “‘What’s the neighborhood like?’” and “‘This is Neighborhood.’” As defendant and his companion walked away, the victim agreed, “‘This is Neighborhood.’” Defendant pulled out a gun and fired, killing the victim and injuring another man. (People v. Ward, supra, 36 Cal.4th at p. 196.) The defendant argued the gang challenges by the victim--eventually responding “Neighborhood” to the companion’s goading--may have emotionally aroused and provoked his assault on the victims. The court found that since the record contained no evidence of what, if any, response defendant had to the purported challenges, there was no evidentiary basis for giving the instruction. (Id. at p. 214.)
Here there was some evidence of defendant’s reaction to the “mean-mugging” other than simply shooting. He chased Stevenson around the truck, yelling at him. When Randy Holloway tried to intervene and diffuse the situation, defendant first hit and then shot him. Thus, there was some, albeit slight, evidence to support the instruction. We turn to whether defendant was denied effective assistance of counsel due to the failure to request it.
“To make a successful claim of ineffective assistance of counsel, the defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel’s failings the result would have been more favorable.” (People v. Bell (1989) 49 Cal.3d 502, 546.)
Defendant cannot show a reasonable probability of a different result if CALCRIM No. 522 had been given. As defendant concedes, there is sufficient evidence of premeditation and deliberation. After the slightest provocation, at most an insult to Plan and a hard stare by Stevenson, defendant reacts by pursuing Stevenson. First, however, he pulls his bandanna over his face to hide his identity. This action indicates not a rash impulse, but that defendant intended criminal action and wanted to avoid detection. Defendant was carrying a loaded weapon, raising the reasonable inference that he contemplated homicide that night. (See People v. Steele, supra, 27 Cal.4th 1230, 1250.) When Randy Holloway attempts to break up the incident, assuring defendant they did not want any problems, defendant is undeterred. Holloway did nothing to provoke defendant. (Cf. People v. Lee (1999) 20 Cal.4th 47, 59 [provocation for manslaughter must be caused by victim or defendant must reasonably believe victim involved].) Defendant strikes Holloway, and when Holloway tries to defend himself, defendant shoots him at close range and continues to shoot as he leaves the scene. Given the extremely violent, yet completely senseless, nature of the crime, it is not reasonably probable a jury would have reduced the degree of murder to second degree due to the slight provocation involved. The failure to instruct on CALCRIM No. 522 did not prejudice defendant.
In closing argument, defense counsel addressed premeditation and deliberation briefly, arguing this case fell in the middle of the spectrum, but “it doesn’t matter if Mr. Mao didn’t do it.” Counsel wondered how much premeditation and deliberation there could be in six minutes, the time period of the incident.
IV.
There Was Insufficient Evidence LRC Was a Criminal Street Gang
Defendant contends there is insufficient evidence he committed street terrorism because there is no evidence he knew that members of his gang, LRC, “engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (a).) A “pattern of criminal gang activity” requires the commission of two or more predicate offenses within certain time periods. (§ 186.22, subd. (e).) Defendant contends there is no evidence defendant knew of any criminal activity by any member of LRC prior to the date of the instant offenses, January 6, 2007.
The Attorney General is “compelled to concede” that all the gang offenses and the gang enhancement must be reversed for insufficient evidence. Because there is no evidence members of LRC committed two or more qualifying offenses as required by statute, and thus no evidence LRC is a criminal street gang under section 186.22, we accept the concession.
To convict a defendant under the Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.), the prosecution must prove defendant committed his crime for the benefit of a criminal street gang and “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b).) “In addition, the prosecution must prove 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 (the so-called ‘predicate offenses’) during the statutorily defined period. [Citation.]” (People v. Gardeley, supra, 14 Cal.4th 605, 617.)
The prosecution had to prove two predicate offenses by defendant’s gang, LRC. The charged offense, the murder of Holloway, counted as one predicate offense. (People v. Gardeley, supra, 14 Cal.4th at p. 625; People v. Olguin, supra, 31 Cal.App.4th 1355, 1383.) The difficulty in establishing the second predicate offense was that Detective Gutierrez, while testifying LRC was a criminal street gang, also testified it was documented or founded on January 6, 2007, the date of the instant offenses.
Gutierrez offered two predicate offenses; neither of which qualifies. First, Gutierrez testified Jefferson El, a LRC member, was convicted of robbery in July 2007. Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1458.) Second, Gutierrez relied on Brian Sum’s conviction for attempted murder in 2006. Sum was a member of the HKS gang. Gutierrez testified LRC and HKS associated together, lived in the same neighborhood, and many of their members were related. There was graffiti representing both gangs. Gutierrez testified LRC and HKS were like one gang and they committed crimes together. He said LRC was both a separate gang and associated with HKS. Thus, the prosecution’s case relied on treating LRC and HKS as one gang.
A criminal street gang is defined, in part, as “any ongoing organization, association, or group of three or more persons, whether formal or informal,... having a common name or common identifying sign or symbol.” (Pen. Code, § 186.22, subd. (f). There was no evidence that LRC and HKS had a common name, sign or symbol. Gutierrez explained that LRC was a Crip gang, associated with the color blue, while HKS was a Blood gang, associated with the color red. The prosecution may establish there is a criminal street gang where the persons are members of various subsets or subgangs within a larger gang. (People v. Ortega (2006) 145 Cal.App.4th 1344, 1357.) In Ortega, there were various members of Norteno subgangs; here there was no evidence that LRC was a subset of HKS or that both were subsets of a larger gang. Rather, one was a Crip gang and the other a Blood gang.
Since LRC did not qualify as a criminal street gang under section 186.22, defendant’s conviction for street terrorism under section 186.22, subdivision (a) must be reversed. Further, the gang enhancement under section 186.22, subdivision (b)(1) must also be reversed. Defendant was also convicted of two other gang-related offenses, both of which require the defendant be “an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act.” (§ 12025, subd. (b)(3); § 12031, subd. (a)(2)(C).) These convictions must also be reversed for insufficient evidence that defendant was a participant in a criminal street gang.
DISPOSITION
Defendant’s convictions for count 8 (possession of a firearm by a gang member), count 9 (carrying a loaded firearm by an active gang participant) and count 10 (street terrorism) and the finding of the gang enhancement under section 186.22, subdivision (b)(1) are reversed. In all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J., RAYE, J.
“1. He or she knew of the criminal purpose of the person who committed the crime;
“AND
“2. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime[;]/ [or] participate in a criminal conspiracy to commit the crime).
“The burden is on the defendant to prove that it is more likely than not that __________ (was/were) [an] accomplice[s].
“[An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he or she is present at the scene of a crime, even if he or she knows that a crime will be committed or is being committed and does nothing to stop it.] [¶]... [¶]
“[A person may be an accomplice even if he or she is not actually prosecuted for the crime.] [¶]... [¶]
“If you decide that a (declarant/ [or] witness) was not an accomplice, then supporting evidence is not required and you should evaluate his or her (statement/ [or] testimony) as you would that of any other witness.
“If you decide that a (declarant/ [or] witness) was an accomplice, then you may not convict the defendant of __________ based on his or her (statement/ [or] testimony) alone. You may use the (statement/ [or] testimony) of an accomplice to convict the defendant only if:
“1. The accomplice’s (statement/ [or] testimony) is supported by other evidence that you believe;
“2. That supporting evidence is independent of the accomplice’s (statement/ [or] testimony);
“AND
“3. That supporting evidence tends to connect the defendant to the commission of the crime[s].
“Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime[s], and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the accomplice testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
“[The evidence needed to support the (statement/ [or] testimony) of one accomplice cannot be provided by the (statement/ [or] testimony) of another accomplice.]
“Any (statement/ [or] testimony) of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that (statement/ [or] testimony) the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”