Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. RIF143634, RIF142585 Jean P. Leonard, Judge.
AARON, J.
I.
INTRODUCTION
Defendants Blake Markson, Cedric Greer and Barry Tolbert were convicted of various offenses related to a fight and shooting between rival gangs that occurred in January 2008. Markson and Greer were each convicted of two counts of assault with force likely to cause great bodily injury, and one count of actively participating in a criminal street gang. Tolbert was convicted of three counts of attempted murder, three counts of assault with a firearm, three counts of assault with force likely to cause great bodily injury, and one count of actively participating in a criminal street gang.
On appeal, Tolbert contends that his convictions for attempted murder, assault with a firearm, and assault likely to produce great bodily injury must be reversed because the jury returned "not true" findings on the enhancement allegations that Tolbert personally used a firearm in committing the offenses. Tolbert further contends that there is insufficient evidence to support his convictions for the attempted murder of two of the three victims because, he asserts, the evidence demonstrates that the shooter shot at only one of the victims. Tolbert also maintains that the evidence does not support the jury's findings that he personally inflicted great bodily injury on two victims who were not hit by bullets. In addition, Tolbert argues that the trial court erred in failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter.
Tolbert's final contention is that the trial court erred in imposing sentence. Specifically, Tolbert argues that the court should have stayed punishment on the convictions for assault with a deadly weapon and assault likely to cause great bodily injury because those counts were simply alternative charges, predicated upon the same acts alleged in the attempted murder counts. He also points out that the trial court imposed a term of four years for the personal use of a firearm enhancement, despite the fact that the jury returned a "not true" finding on this allegation.
Markson contends that the trial court violated his Sixth and Fourteenth Amendment rights to confront witnesses and to present a defense when the court denied his counsel's request to play the audiotape of a witness's interview with police. Markson further maintains that the witness's statement, in which that witness implicated Markson as having been actively involved in the fight, was the product of police coercion, and that its admission at trial therefore violated Markson's right to due process. Markson also argues that in the event his convictions are reversed, the People should be precluded from relying on a theory of conspiracy liability in any retrial on the assault counts because, he maintains, there is insufficient evidence to support that theory.
All three defendants contend that their convictions on the criminal street gang count arose from the same conduct as their convictions on other counts, and that the trial court should therefore have stayed punishment for that count pursuant to Penal Code section 654.
Further statutory references are to the Penal Code unless otherwise indicated.
Finally, Greer asks this court to review the record of the in camera Pitchess hearing to determine whether the trial court properly denied his motion for discovery of a detective's personnel files.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We reject the majority of the defendants' challenges to their convictions and sentences. However, we conclude that certain portions of the judgment as to Tolbert must be reversed. Specifically, we conclude that there is insufficient evidence to support the jury's true findings that Tolbert personally inflicted great bodily injury on two of the victims. We further conclude that the trial court was required to stay execution of Tolbert's sentence on the convictions for assault with a firearm pursuant to section 654, and that the court erred in imposing a sentence for the enhancement for personal use of a firearm enhancement, since the jury returned a "not true" finding on that enhancement.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Markson, Greer and Tolbert are members of the Edgemont criminal street gang. Sex, Cash, Money is a rival criminal street gang.
On January 7, 2008, members of Sex, Cash, Money were walking near a shopping center in Moreno Valley. Among the group of Sex, Cash, Money members were Stuart Torres, Antoine Jacobs, Anthony Davis, Dionte Calloway, and Kenny Hendricks. Two or three cars pulled up alongside the Sex, Cash, Money group. An occupant of one of the vehicles yelled out something like, "Edgemont fuck fags." Witnesses described seeing between five and 16 Edgemont gang members get out of the cars.
The members of the rival gangs began to fight in the parking lot of the shopping center. Some of the Edgemont gang members, including Greer, stomped on Davis while he was lying on the ground. During the fight, Calloway—a Sex, Cash, Money member —hit Tolbert with a small bat that Calloway was carrying with him.
After approximately five minutes, the Edgemont gang members ran back to their cars. One of the Edgemont gang members, whom several witnesses identified as Tolbert, suddenly appeared from behind one of the cars, holding a gun. The shooter aimed the gun in the direction of the Sex, Cash, Money members and fired five or six shots. Davis was hit on the chin and wrist. None of the other Sex, Cash, Money members was hit. Other bullets hit nearby cars. When the shooting started, Torres ran away. He was chased by the Edgemont members until he ran into a nail salon. Other Sex, Cash, Money gang members helped Davis get up, and they all ran away.
Three days after this incident, Riverside County Sheriff's Detective Lance Colmer, who was investigating the shooting, arrested Markson for a separate offense. When Colmer arrested Markson, Colmer noted that Markson's left eye was swollen and bruised.
Approximately three to four months after the shooting, Torres informed Detective Colmer that Markson, Greer and Tolbert had all been involved in the fight at the shopping center. When Detective Colmer interviewed Davis, Davis picked a photograph of Tolbert out of a photographic lineup and identified him as the shooter.
B. Procedural background
Markson, Greer and Tolbert were charged with three counts of attempted murder (§§ 664, 187, subd. (a); count 1, victim Anthony Davis; count 2, victim Antoine Jacobs, count 3 Stuart Torres); three counts of assault with a firearm (§ 245, subd. (a)(2); count 4, victim Davis; count 5, victim Jacobs; count 6 victim Torres); three counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1); count 7, victim Davis; count 8, victim Jacobs; count 9, victim Torres); and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 10).
With respect to counts 1- 3, the information alleged that all three defendants committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that a principal discharged a firearm, causing great bodily injury or death to a person not an accomplice (§ 12022.53, subds. (d), (e)). The information also alleged that Tolbert personally discharged a firearm and caused great bodily injury or death within the meaning of sections 12022.53, subdivision (d) and 11192.7, subdivision (c)(8).
With respect to counts 4-6, the information alleged that all three defendants committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)). The information also alleged that Tolbert personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) and that he personally inflicted great bodily injury upon each of the three victims (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).
With respect to counts 7-9, the information alleged that all three defendants committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)).
The information further alleged that Markson committed all of the offenses while released from custody prior to the judgment becoming final on a primary offense within the meaning of section 12022.1.
The case against Tolbert, Markson and Greer was tried before two separate juries―one jury for Tolbert, and a different jury for Markson and Greer. The Markson/Greer jury found both Markson and Greer guilty of assault with force likely to cause great bodily injury as to Davis and Torres (counts 7 and 9), and active participation in a street gang (count 10). The jury also found true the corresponding gang enhancements on counts 7 and 9. The jury acquitted Markson and Greer of the remaining charges. In a bifurcated proceeding, the trial court found that Markson committed the gang offense while released from custody prior to judgment on a primary gang offense (§ 12022.1).
The trial court sentenced Markson to a total term of 10 years eight months in state prison, comprised of the midterm of three years on count 7, plus the midterm of three years for the corresponding gang enhancement; one year (one-third the midterm) on count 9, plus one year (one-third the midterm) for the corresponding gang enhancement; and eight months (one-third the midterm) on count 10, plus two years for the corresponding section 12022.1 enhancement. The court imposed the same sentence on Greer, with the exception of the term for the section 12022.1 enhancement.
Tolbert's jury found him guilty on all counts. With respect to the three counts of attempted murder (counts 1, 2 and 3), the jury found that the attempted murders were willful, deliberate, and premeditated. With respect to the enhancement allegations made in conjunction with each of the counts, the jury found true all of the gang allegations, and also found true the great bodily injury allegations, but found "not true" the allegations of personal use of a firearm.
The trial court sentenced Tolbert to a term of 15 years to life in prison, plus an additional 20 years. The sentence was composed of 15 years to life on count 1; two additional terms of 15 years to life, concurrent, on counts 2 and 3; the midterm of three years on count 4, plus an additional three years for the corresponding great bodily injury enhancement, four years for the firearm enhancement, and 10 years for the gang enhancement; and concurrent terms of 20 years on count 5, eight years on count 6, six years on count 7, six years on count 8, six years on count 9, and two years on count 10.
The defendants filed timely notices of appeal.
III.
DISCUSSION
A. Tolbert's attempted murder convictions
1. The jury's "not true" findings on the personal firearm use allegations do not affect the remaining verdicts
Tolbert contends that the jury rejected the allegation that he was the shooter—a conclusion that he bases on the fact that the jury returned "not true" findings on the enhancement allegations that he personally used a firearm. Tolbert asserts that the jury must therefore have convicted him of the attempted murder of the three Sex, Cash, Money members based on an aiding and abetting theory, and he challenges the sufficiency of the evidence to support his convictions on an aiding and abetting theory.
Tolbert also argues that this same reasoning applies to require reversal of his convictions on the convictions for assault with a firearm and the convictions for assault by means of force likely to produce great bodily injury.
We reject Tolbert's contention that the jury's "not true" findings on the enhancement allegations of personal use of a firearm undermine the validity of the guilty verdicts on the charged counts. The disposition of one count or enhancement has no bearing on the verdict with respect to other counts; each count must stand on its own merits. (People v. Federico (1981) 127 Cal.App.3d 20, 31-32.) "[A] jury may make inconsistent findings or verdicts as to a defendant charged with two offenses. An acquittal on one offense will not invalidate a verdict on a second offense, although the two verdicts are factually inconsistent. [Citation.] This rule is based on the realization that inconsistent findings may be caused simply by the mercy or leniency of the jury. [Citation.]" (People v. Pettaway (1988) 206 Cal.App.3d 1312, 1324.)
Where a jury finds a defendant guilty of assault with a deadly weapon, but determines that he did not personally use a firearm in the commission of the offense, a court may consider evidence of the defendant's weapon use in determining whether the guilty verdict is supported by substantial evidence. (People v. Lopez (1982) 131 Cal.App.3d 565, 569-571.) Here, there is substantial evidence to support the jury's guilty verdicts on the attempted murder counts under a direct liability theory, since several eyewitnesses to the shooting identified Tolbert as the shooter.
The fact that the jury returned inconsistent verdicts by making "not true" findings as to the allegations that Tolbert personally used a firearm does not require reversal of his convictions on the substantive offenses. For this reason, we also reject Tolbert's contention that there is insufficient evidence to support his convictions on counts 4 through 9; the eyewitness testimony is clearly sufficient to support his convictions as the direct perpetrator on these counts.
2. There is sufficient evidence to support Tolbert's convictions for attempted murder of Jacobs and Torres
Tolbert contends that there is insufficient evidence that "the Edgemont shooter intended to shoot anyone other than Anthony Davis." Based on the testimony of a single witness who stated that the shooter was "shooting at" Anthony Davis, Tolbert contends that "the shooter fired at Anthony Davis, " and that "there [is] no evidence to suggest that he fired at anyone else." He argues that his convictions for the attempted murders of Jacobs and Torres must therefore be reversed. Tolbert's description of the state of the evidence does not comport with the evidence in the record.
Tolbert argues that this same reasoning applies to require reversal of his convictions for assault with a firearm and assault by means of force likely to produce great bodily injury with respect to victims Jacobs and Torres.
The shooter, whom several witnesses identified at trial as Tolbert, came out from behind one of the Edgemont gang member's cars holding a gun. Tolbert ran and "got [in] a position where he could aim toward everybody, " and proceeded to fire five or six times in the direction of the Sex, Cash, Money gang members. At least one of the bullets hit Davis, who had been standing either next to, or somewhat behind, Torres. Other bullets hit cars that were parked nearby.
The testimony at trial indicated that other Sex, Cash, Money members were in the immediate vicinity at the time shots were fired. Although one witness described the shooter as having shot "at" Davis, there was other evidence from which the jury could reasonably have concluded that the shooter shot in the general direction of a number of Sex, Cash, Money members, and that he sprayed gunfire in such a manner that even if his intention was to shoot Davis, the way in which the shooting was performed indicated an intent to kill others, as well. (See People v. Bland (2002) 28 Cal.4th 313, 329 ["the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within... the 'kill zone.' "].) We therefore reject Tolbert's contention that there is insufficient evidence to support his convictions on counts 2 and 3.
For the same reason, we also reject Tolbert's contention that there is insufficient evidence to support his convictions on counts 5, 6, 8 and 9, which charged assault with a firearm, and assault likely to produce great bodily injury, as to Jacobs and Torres.
3. The evidence is insufficient to support the jury's findings that Tolbert personally inflicted great bodily injury on Jacobs and Torres in connection with the charges of assault with a firearm
Tolbert contends that the jury's failure to find that he personally used a firearm requires that its findings that he personally inflicted great bodily injury on a person other than an accomplice with respect to counts 4, 5 and 6, must be reversed. Because, as noted above, the jury may make findings that are inconsistent, we reject this argument.
In the alternative, Tolbert contends that the jury's findings that he personally inflicted great bodily injury on Jacobs and Torres must be reversed because there was no evidence that either Jacobs or Torres suffered any injury related to the assault with a firearm. We agree with this contention. There was no evidence presented that either Jacobs or Torres suffered any physical injury as a result of the assault with a firearm. The true findings on the enhancements for personal infliction of great bodily injury related to counts 5 and 6 must therefore be reversed.
B. The trial court had no duty to instruct the jury on the lesser included offense of attempted voluntary manslaughter
Tolbert contends that the trial court erred in denying his request to instruct the jury on the lesser included offense of attempted voluntary manslaughter.
" '[I]t is the "court's duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed." [Citation.]' [Citation.]" (People v. Redd (2010) 48 Cal.4th 691, 732 (Redd).) A trial court must instruct the jury sua sponte on a lesser included offense where "there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense." (People v. Cook (2006) 39 Cal.4th 566, 596.) " 'To warrant [an instruction on a lesser included offense], there must be substantial evidence of the lesser included offense, that is, "evidence from which a rational trier of fact could find beyond a reasonable doubt" that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]' [Citation.]" (Redd, supra, at pp. 732-733.)
" ' "Murder is the unlawful killing of a human being with malice aforethought. [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of... voluntary manslaughter. [Citation.]" [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] "But a defendant who intentionally and unlawfully kills lacks malice... in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' [citation], or when the defendant kills in 'unreasonable self-defense'—the unreasonable but good faith belief in having to act in self-defense [citation]." [Citation.] Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwiseinheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation].' [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 549.)
"A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] [¶] ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " [Citation]' [Citation.] '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] 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. [Citations.]" (Moye, supra, 47 Cal.4th at pp. 549-550.)
"To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." [Citations.]' [Citation.] ' "However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter...." [Citation.]' [Citation.]" (Moye, supra, 47 Cal.4th at p. 550.)
"Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." (In re Christian S. (1994) 7 Cal.4th 768, 771.)
On appeal, Tolbert argues that the evidence at trial would have supported an attempted voluntary manslaughter conviction under either a heat of passion theory or an imperfect self defense theory. We disagree.
The evidence demonstrated that Tolbert and his fellow Edgemont gang members initiated a physical confrontation with members of a rival gang. The only potentially provocative conduct on the part of any Sex, Cash, Money member to which Tolbert points is evidence that Davis, who was unarmed, "pursued" the Edgemont gang members as they were fleeing to their cars. This is clearly not conduct that would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. The evidence was thus insufficient to warrant an attempted voluntary manslaughter instruction on a heat of passion theory.
The evidence was similarly insufficient to warrant an attempted voluntary manslaughter instruction on an imperfect self-defense theory. Where the defendant is the initial aggressor and the victim's response is legally justified, the defendant cannot rely on unreasonable self defense as a basis for attempted voluntary manslaughter. (People v. Seaton (2001) 26 Cal.4th 598, 664; see also People v. Manriquez (2005) 37 Cal.4th 547, 582.) The evidence clearly demonstrated that Tolbert and the other Edgemont gang members were the initial aggressors. There is no evidence that Davis's response to the aggressive conduct, which amounted to nothing more than following the retreating Edgemont members, involved use of force or threats, or was otherwise unlawful. As a result, the trial court correctly refused to instruct the jury on an imperfect self-defense theory of an attempted voluntary manslaughter.
C. The trial court erred in sentencing Tolbert
1. Section 654 requires that the court stay execution of Tolbert's sentence on counts 4, 5 and 6
Tolbert contends that the trial court erred in not staying execution of the sentences imposed for his convictions on counts 4 through 9, under section 654. According to Tolbert, the offenses identified in these counts were simply alternatives to the offenses identified in counts 1, 2 and 3, and covered the same conduct.
As an initial matter, we dispense with the People's argument that Tolbert should be precluded from challenging this sentencing error because, at the sentencing hearing, his attorney requested that the sentences for all of these offenses run concurrently. Generally, only those claims that are properly raised in the trial court are reviewable on appeal. However, "the 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354.) "It is well settled... that the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654." (Id. at p. 354, fn. 17.) We therefore address on its merits Tolbert's challenge to his sentence on section 654 grounds.
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Section 654 thus bars double punishment, including concurrent sentences, for a course of conduct constituting one indivisible transaction with one criminal objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Latimer (1993) 5 Cal.4th 1203 (Latimer).) Where "section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
To determine whether a course of conduct is indivisible, a court considers the intent and objective of the defendant. If all of the criminal acts were incident to a single criminal objective, then the court may impose punishment only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) A court may impose separate punishments for offenses that have similar but consecutive and different objectives, or simultaneous but separate objectives, however. (Latimer, supra, 5 Cal.4th at pp. 1211-1212.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives, ' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)
A trial court's determination that a defendant holds multiple criminal objectives will be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
We conclude that the trial court did not err in imposing, and not staying, sentences for the offenses charged in counts 7, 8 and 9. However, we reach a different conclusion with respect to the offenses charged in counts 4, 5 and 6.
Tolbert was convicted in counts 7, 8 and 9 of assault with force likely to produce great bodily injury as to three members of the Sex, Cash, Money gang. Tolbert presumes that the conduct that forms the basis of these charges is shooting at these victims, which, he contends, is the same conduct for which he was convicted in counts 1, 2 and 3. However, the jury could have found Tolbert guilty of counts 7, 8 and 9 based on different conduct from the conduct that underlies his convictions on counts 1, 2 and 3. Specifically, there was evidence demonstrating that Tolbert took part in the gang fight and that he used force against the Sex, Cash, Money members during that fight. The jury could have determined that Tolbert aided and abetted his fellow gang members in carrying out assaults that were likely to produce great bodily injury against the three identified victims. There is substantial evidence to support the trial court's implicit determination that Tolbert had a different objective in participating in the gang fist fight than he had in shooting at the Sex, Cash, Money members after the fist fight had subsided.
The same cannot be said with respect to the conduct underlying counts 4, 5 and 6. The offenses charged in those counts were assaults with a firearm. The only evidence as to the use of a firearm was the episode in which a single shooter fired at the victims. Thus, the only conduct for which Tolbert could have been convicted on the counts charging assault with a firearm is this shooting. This is the same conduct on which his convictions for attempted murder in counts 1, 2 and 3 are based. Section 654 thus precludes punishing Tolbert for both the attempted murder counts and the assault with a firearm counts. The trial court should therefore have stayed execution of Tolbert's sentence on the convictions for assault with a firearm, pursuant to section 654.
2. The trial court should not have imposed sentence for the enhancement for personal use of a firearm
The People concede that the trial court's imposition of sentence on the enhancement for personal use of a firearm with respect to count 4 was error, since the jury returned a "not true" finding as to this allegation. We direct the trial court to amend Tolbert's abstract of judgment to vacate the four-year term imposed for the enhancement for personal use of a firearm on count 4.
D. The trial court's exclusion of an audiotape of Torres's interview does not require reversal of the judgment as to Markson
Markson contends that the trial court violated his Sixth and Fourteenth Amendment rights to confront witnesses and to present a defense when the court excluded the audiotape of Detective Colmer's interview of Torres, in which Torres identified Markson as one of the participants in the fight. Markson contends that the "coerciveness and suggestiveness of Colmer's interview tactics could not be fully developed at trial through cross-examination." According to Markson, his "only opportunity to discredit [Torres's and Colmer's] testimony and the identification of Markson was to present the complete interview to the jury by playing the audiotape."
1. Additional background
When Torres was first interviewed by police, he denied that the fight had been gang related, and he did not identify any of the participants. Approximately four months later, while Torres was incarcerated on a separate matter, Detective Colmer interviewed Torres again regarding the confrontation between Edgemont and Sex, Cash, Money. During this interview, which was recorded, Colmer mentioned that Torres's younger brother had been getting into trouble while Torres had been incarcerated. Colmer said:
"We can help with this, okay? Because here's another thing, your brother is rolling with Sex Cash too 'cause on Wednesday night your brother was over in the Hemlocks and he ran from us and he was with uh Andrew Cage. He was with [inaudible] and some other dude. Okay um and your brother has been hanging around [inaudible] and hanging around um uh Kenny [inaudible]. Okay um we can help you with this but like I said I need your help. Okay, I need you to do the right thing and like I said your, your pregnant girlfriend—you [addressing another detective who was present during the interview] have a case on her for what?"
The other detective replied that the case was against Torres's girlfriend and brother. After Colmer explained to Torres what his girlfriend and brother had done, the following colloquy occurred:
"COLMER:... [D]o you know what kind of case that is? It's called witness intimidation and that kind of case plays a very, very hefty um ─ yeah, that, that kind of, that kind of case carries a very, actually if you attach a gang allegation to it it becomes a life case. Okay I'm not, I'm not joking. I'm not lying. I'm not here to fuck with your brain. Okay I'm here 'cause I need your help. Alright, if you do this for me and help me with this case I'm going to—number 1, I'm going to call the DA. I know who the DA is okay? I'm going to see what I can do as far as getting this, I can't promise I'm going to get it dismissed but I can promise you that I'm going to talk to the DA. [Inaudible] get something reduced or you know probation with time served or something where you didn't have to go to the fucking hall and fight off a bunch of muffins. Okay and same thing with your girl. I'm willing to extend my hand to do the right thing but now is the time for you to do the right thing. Um you also need to know that I talked to, I talked to uh Antoine, um, Antoine [inaudible] I talked to Kenny and I talked to um Anthony Davis. All 3 of them cooperated with us. They looked at the pictures of the people that were out there that day and that were jumping you guys and that shot. Okay I know because they told me that you're going to be able to identify some of the people that were out there that day. Okay based on your prior knowledge of these guys. Based on the fact that you've seen them in the street before or you have even gone to school with them. You know what the fucking nicknames are, all that shit. Okay like I said, we got the motherfucker[] that shot Anthony in the face. He's down at RPDC. He's in Riverside County Jail right now. That motherfucker ain't getting out. His bail is a million dollars. Okay so that motherfucker ain't getting out okay?
"TORRES: Alright.
"COLMER: The only thing I need you to do is tell me, just like they did, they told me what happened. Okay they uh looked at the photographs um that we have. Okay and they pointed out the people that were there. Okay, I've already spoken with the DA on this case and I can charge everybody that was there...
"TORRES: Um hmm.
"COLMER: [W]ith attempted murder. Not just the shooter but everybody that was there I can charge them for attempted murder. Okay, that's going to take a lot of muffins off the street for a long time. Would you agree with that? Are we straight?
"TORRES: Um hmm.
"[¶]... [¶]
"COLMER: So today is, what is it, April, April 4th about 6 o'clock and we're with Stuart Torres.... On the, on, on January 7th you and your friends were walking down Sunnymead Boulevard and what happened?"
Torres then began to describe what had occurred on the day of the fight. The discussion between Torres and Colmer concerning the events of that day covered approximately 20 pages of transcript. After this portion of the interview, Colmer asked Torres to look at some photographs of possible suspects and to identify individuals who had participated in the fight. Torres agreed to circle the photographs of everyone he saw during the altercation. Colmer encouraged Torres, saying, "Cause it's very, very important Stuart, very important. Okay we need to know. We already have the shooter in custody. Alright he's already been a hundred percent identified so you're not telling me anything I don't already know. Okay and now's the time to do the right thing but for the right reasons. It's going to help you out. It's going to help your family out. It's going to help everybody out. These people need to be taken off the street for a long time okay?"
Torres examined the photographs and identified some of the persons depicted in the photographs as participants in the fight. One of the persons whom Torres identified as a participant was Markson.
At trial, Torres testified that Markson participated in the fight. Specifically, Torres said that he saw "Blake [Markson] fighting some of [Torres's] friends." During cross-examination by Greer's defense attorney, Torres admitted that he had not been truthful with police the first time that they interviewed him about the fight. Under questioning by Tolbert's attorney, Torres admitted that he was "kind of like iffy about telling the truth at first" to Colmer during the second interview. In cross examining Torres about his identification of Tolbert as the shooter, Tolbert's attorney asked, "[Were] there any offers made to you?" Torres responded, "No...." Tolbert's attorney continued to pursue this line of questioning, asking, "Nobody said anything about helping you out in any way, " and "Nobody offered to help anybody in your family out?" Torres responded "No" to both questions. Tolbert's attorney asked, "You didn't need any incentive, you didn't need any motivation for you to tell the truth?" Torres responded that he did not.
At a later point during Tolbert's attorney's cross-examination, counsel asked, "And there were no promises made to you whatsoever. You just said, 'That's [the shooter].' You just said, 'I'll talk to you right now'; right?" After Torres responded, "Yes, " to this question, Tolbert's attorney asked, "What made you change your mind and talk?" Torres responded, "Just—I have little brothers, sisters. I got family I worried about. And these guys are still on the streets. No telling what they can do—hurt me, hurt my family." Counsel then asked, "So that made you change your mind?" Torres replied, "Yes."
During cross examination by Markson's defense attorney, counsel asked Torres, "And you said that you changed your mind about telling [Colmer] the whole story because you were worried about your family on the outside?" Torres responded, "Yes." The following colloquy then occurred:
"Q.... [¶] Now, who told you that—was it Detective Colmer who told you that people were talking about making threats about your family?
"A. No, but I pretty much know because they know me. So I already know what type of threat they are.
"Q. Did you discuss the fact that your brother was in a little bit of trouble at that same time with Detective Colmer?
"A. Yes.
"Q. And who brought that up?
"A. I don't remember.
"Q. Why were you discussing that with Detective Colmer?
"A. I was real worried about my brother because, as I was incarcerated in jail, my mother—I would call my mother, and my mother was telling me how bad my brother was acting, how wild he was out there and all the trouble and how he's affiliating and sort of fell into my footsteps since I was gone. And he favors and looks just like me, and I don't want them to mistake[] him as me.
"Q. All right. Did you also talk about your girlfriend with Detective Colmer?
"A. Yes, I did.
"Q. And who brought that up?
"A. I don't remember. I don't remember.
"Q. Do you remember why you were talking about your girlfriend with Detective Colmer?
"A. Because she was going—she was getting in trouble also. She was getting in trouble also."
None of the attorneys sought to introduce the audiotape or the transcript of Colmer's interview of Torres at any point during Torres's testimony. The issue of playing the Torres interview audiotape was not raised until the cross-examination of Detective Colmer, which took place two days later.
Colmer testified extensively, both in response to direct examination and on cross-examination, about his interviews with the victims, including Torres. Colmer stated that Torres had identified Markson as one of the persons involved in the fight, and that other witnesses had said that Markson was present during the fight.
Markson's attorney began her cross-examination of Colmer by asking Colmer about his interview with Torres. Not long after the cross-examination began, defense counsel and Colmer engaged in the following colloquy:
"Q.... In fact... the very first thing on the interview was you introduced, I believe, your partner and then you said, 'Your girl is pregnant; right?' That's the very first thing you led in with?
"A. Probably.
"Q. And then after that, to make him more comfortable, you talked about the trouble that his brother was in?
"A. I talked about his brother and that his brother has been getting in trouble. Yes.
"Q. And then you talked about—you returned to the pregnant girlfriend and you talked to your partner about the case that she had against her?
"A. Um, I don't remember specifically, but probably. Yeah.
"Q. Okay. And then you moved on from that and you explained to Mr. Torres that the case that she was involved with involved witness intimidation and that that could carry a penalty of life, and that if Mr. Torres did this for you and helped you with your case, that you could go to the D.A. and try to get something reduced, try to get probation and something with time served so that his brother wouldn't be looking for time in the hall, wouldn't have to fight off a bunch of Muffins, and that you could do the same thing for his girl? That's what you did to make him feel more comfortable with you?
"[¶]... [¶]
"Q. Okay. And so the things that you were saying to Mr. Torres to make him feel comfortable with you, I believe, is what you told me were things—we're talking about, I believe, his brother's case, talking about it involving—[¶] 'It's called witness intimidation. That's the kind of case [that] plays a very heavy'—and then there's a bunch of 'ums' and 'yeahs' that go in here. [¶] I'm going to cut to where it says, 'If you attach a gang allegation to it, it becomes a life case.' [¶] Skipping down a couple of lines, skipping out some expletives, 'If you do this for me and help me with this case, I'm going to—number one, I'm going to call the D.A., get something reduced or, you know, probation with time served'—again after one of those blanks that you mentioned.... [¶] 'Where you didn't have to go the fucking hall and fight off a bunch of Muffins. Okay? The same thing with your girl. I'm willing to extend my hand and do the right thing, but now it's time for you to do the right thing.'
"A. Correct.
"Q. Okay. And at some point, do you think it was after that that you read him that admonishment?
"A. Yes.
"[¶]... [¶]
"Q. Do you recall telling him that cooperating with you would be a really good thing and that it would be good for him and his family. [¶] 'Just look at these photos, just point everybody that you saw was there' and that was the extent of your admonition?
"A. No. That wasn't the extent of my admonition to him."
Markson's attorney did not complete her cross-examination of Colmer that day. The following day, outside the presence of the jury, Markson's attorney first raised the possibility of playing for the jury the audiotape of Colmer's interview with Torres, as well as the audiotapes of Colmer's interviews with other victims. She said that she wanted to play the audiotapes to demonstrate that Colmer had failed to admonish the victims before they identified their attackers. The court summarized counsel's position as follows: "Ms. Mullins [Markson's attorney] has indicated that she believes the admonishment was not given. Her review of the three tapes is that it was not given. And she's indicating that if we can't come up with some sort of stipulation, that she believes she's going to have to play all three of those tapes." Markson's attorney stated that she "would be satisfied at this point to finish [her] cross[-examination]" and allow other defense counsel to cross-examine Colmer and the prosecutor "have his redirect" before returning to the issue of whether any of the audiotapes of the victims' interviews should be played. Markson's counsel concluded her remarks by stating, "[M]aybe we can clean up whatever needs to be done through cross-examination." The attorneys agreed to wait until after cross-examination and redirect were completed to revisit the issue.
During cross-examination by Greer's attorney, Colmer indicated that before he asked the victims to identify the fight participants from photographs, he had given each witness an admonishment that was "something along the lines of, I'm going to show you a series of photographs, which may or may not contain the suspects in this case, may or may not contain people that were involved in this crime. I want you to look at the photographs and tell me if you recognize or see any of the people that were involved in the crime." Colmer explained that he told the victims, "[S]ome of the people, again, may or may not have been there" and that "the photos, the clothing, the hair styles may be different from what [the victims] know of that person because of the age of the photos and people change over time."
Markson's attorney continued to cross-examine Colmer, but did not inquire further about specific details of Colmer's interview of Torres.
Tolbert's attorney questioned Colmer about whether he had admonished Torres. Tolbert's attorney asked Colmer, "Isn't it true that one of the first things that you said to Mr. Torres is that you were there to offer him some help and a solution?" Colmer responded, "I don't remember those exact words, but, again, I did use an interview technique of trying to ascertain what was important to him. You know, he mentioned his brother, his girlfriend being pregnant, his desire to try to get out of that neighborhood. And, you know, I used that information during the interview to entice him to speak to me about what happened." Tolbert's attorney continued to question Colmer about his interview with Torres, and specifically inquired about Colmer's attempts to use the legal problems that Torres's brother and girlfriend were facing, to encourage Torres to cooperate. Colmer admitted to having used such a tactic, stating, "I had to find out what was important to him, and I said, 'Oh, you want me to help you with your brother? Sure, I'll help you with your brother. You want me to help you with your girlfriend? Sure.' That doesn't mean I'm actually going to do it. I'm trying to learn what's important to him and gain his confidence."
Tolbert's attorney asked Colmer, "So do you remember speaking with Mr. Torres and telling him that, in speaking with—I think it's about his brother, saying that, 'I'm here because I need your help. If you do this for me with this case, number one, I'm going to call the D.A. Okay? I'm going to see what I can do. I can't promise I'm going to get it dismissed, but I can promise you that I'm going to talk to the D.A. and see if I can get it reduced—probation or something that doesn't have to go to the Hall.' I guess you're speaking about his brother fought off a bunch of Muffins, I guess. [¶] 'Same thing with your girl.' Do you remember saying that?" Colmer responded, "Yeah. Absolutely. It was a great interview technique to get him to feel comfortable. That doesn't mean I'm going to actually go back and speak to the D.A. on behalf of Stuie's brother. What it is is an interview technique to get him to, again, feel comfortable and confident...."
After all three defense attorneys had completed their cross-examinations of Colmer, Markson's attorney mentioned that she would like to have the Torres and Davis interview tapes played for the jury after the prosecutor's redirect of Colmer. Counsel said that she was "willing to give [the prosecutor] a chance and Detective Colmer a chance to review [the transcripts of the interviews] over the lunch break, but absent some somewhat miraculous redirect on his part, I think that's the way we're going to need to go on that."
On redirect examination, the prosecutor questioned Colmer about the specifics of his interview of Torres, including what, exactly, Torres had said, and who first brought up the different topics that the two had discussed. The prosecutor questioned Colmer at length about his use of an admonition to ensure that the witnesses did not think that Colmer was trying to get them to identify any particular person from the photographic lineup. The prosecutor also specifically questioned Colmer about his discussions with Torres concerning Torres's brother and his girlfriend.
After the prosecutor's redirect examination of Colmer, Markson's attorney said that she was "willing to allow the Davis tape not to be played, " but indicated that she was "not satisfied on the Torres issue." She agreed to wait until after her recross-examination of Colmer to determine whether she would "need to play [the audiotape of Torres's interview], " and said that she would make a final decision after hearing Colmer's testimony. At that point, the trial court indicated that its tentative ruling was that it would not allow any of the audiotapes to be played. During recross-examination, Markson's attorney again questioned Colmer about his interview of Torres. When counsel asked, "And you were the one who brought up his brother and the predicament that his brother was in?" Colmer acknowledged, "I brought up that I had knowledge that his brother was getting in trouble on the street. Yes."
At the end of the day, outside the presence of the jury, the trial court stated:
"There has been some discussion all along about playing the interview tapes from Torres and Davis.... [¶] Earlier today there was a plan discussed, and that was that the Defense would finish their cross-examination, [Markson's attorney] in particular, [Tolbert's attorney]. Then I was going to allow [the prosecutor] to redirect. And my notes indicate that if it was not cleared up at that point, then I would listen to arguments as to whether or not the Court should allow the juries to listen to the entire tapes or the redacted tapes.
"We followed that plan, and I would indicate that the Court is satisfied that [the prosecutor], in fact, clarified the issue of whether or not an admonishment was given. I really don't' see any reason to play either of the tapes at this point. I would be willing to hear from the parties, but this is where I'm coming from."
In response, after having received the court's tentative ruling that it intended to exclude the audiotape, Markson's attorney raised, for the first time, the possibility of using the audiotape to impeach Torres. Markson's attorney stated:
"Well, Your Honor, my position is this. Specifically, as it deals with the Torres interview, in that interview, I think that it serves as impeachment in my case for two reasons. The jury is the trier of the facts in this case, and they have to judge the credibility of the witnesses, not only Lance Colmer as a witness, but also Stuie Torres as a witness. And they need to hear the tone of Stuie's voice. They need to hear the way and the manner in which these offers were made to him, these interview tactics were used, and to see the impact that it had on Mr. Torres, and also they need to hear the tone of his voice, whether he said Blake [Markson] was there, Blake was fighting, or if he said Blake was there, and there's a long pause and he whispers fighting.
"It makes a difference on how it comes through on the transcript. Some things don't translate on paper. And I disagree with the way that it's been characterized by Detective Colmer.
"I would invite the Court to listen to the Torres interview and reserve ruling and we could revisit the issue tomorrow. But I think that it is an inducement tool, and I understand that we have spent a lot of time trying not to play it. And now here we are, and I'm asking to play it. But I think that given everything that we've heard, I still need to play it and I still need to request that it be played. For that reason, I'm asking that the Torres interview be played."
The prosecutor commented that this was the first time anyone had raised the issue of the need to hear Torres's "demeanor or the tone of voice." The trial court agreed to listen to the audiotape, and stated that if "it dramatically changes my opinion, then... I'll tell you. But I do think that, finally, I do think that the Court needs to make a 352 analysis. And at this point, I'd be inclined to exclude that particular piece of evidence because I do believe the probative value is substantially outweighed by the probability that its admission would necessitate undue consumption of time and undue prejudice."
Two days later, outside the presence of the jury, the court said, "[I]t was my understanding that the main reason I was supposed to listen to [the tape] was to hear the inflection and the voices of Mr. Torres and how he was responding. And I also reviewed that in my time listening to that interview." Markson's attorney responded, "That is correct, [Y]our Honor. [¶] It's something that you can't just take from the transcript. That's why I wanted the Court to listen to it. It was the impact of the interview techniques as Detective Colmer has characterized them as he was using—talking about the pregnant girlfriend and talking about the younger brother being in trouble. Those items, I think, were important, and I think you can only really sense the impact they had on the listener, Mr. Torres, by listening to the tape, not by reading the transcript or by cross-examining Detective Colmer."
No testimony was taken during the intervening day, although the attorneys and the court discussed several issues outside the presence of jury.
After hearing from the prosecutor and Greer's attorney, the trial court said, "Even after listening to the tape, I'm going to stick to my ruling. [¶] I do think that the probative value of the tape is substantially outweighed by the probability that its admission would necessitate undue consumption of time, create confusion of the issues, and mislead the jury. [¶] I noted, as I was listening to the tape, that I've heard this before. That kind of came into my mind. I've heard it over and over. There wasn't a whole lot on that tape that I didn't already know about and [witnesses] hadn't been questioned about on numerous times. So the Court listened to the tape just to be sure because, obviously, sometimes what I hear in the courtroom is not what I actually hear on the tape. [¶] Ms. Mullins, quite honestly, I was ready to allow you to put the tape into evidence if I found that there was something on it that was different than what I had heard and what we had been questioning Colmer on, but there really wasn't anything in addition. So at this point, we'll go forward. I won't allow the tapes to come into evidence at this point. I do agree that they are cumulative at this time."
Colmer remained on the stand, and was questioned further by all of the defense attorneys and the prosecutor.
During closing argument, Greer's attorney directly addressed the fact that Colmer had promised to help Torres's brother and girlfriend with their legal problems as an inducement to get Torres to cooperate. Greer's attorney said, "Stuart Torres was told, If you tell me what I want to hear, I'll hook up your brother and your girlfriend. Okay? They weren't prosecuted. Stuart Torres doesn't know that it wasn't Colmer who did that." Markson's attorney gave her closing argument immediately after Greer's attorney, and told the jury that she agreed with everything Greer's attorney had said. Markson's attorney stated that Greer and Markson were in the same position with respect to the issues the jury would have to determine, i.e., whether "the fighters [are] liable" and whether they were fighters at all. Concerning Torres, Markson's counsel said the following:
"We heard from Stuie Torres. Like the other two, he had prior convictions. There's a great discrepancy between what he said the date of the incident to the date he talked to Colmer after being given the incentive of saving his brother and his girlfriend, to the date that he testified here and how his testimony too has changed—from the description of the gun, to the numbers, and types of cars, to telling —even down to what the different Sex Cash members said who was there and what the people did as far as their own members—the number of Sex Cash people there and what those people were doing. None of those items remain consistent.
"Detective Colmer made a big deal about consistency. He said I know the IDs are okay because they're consistent. I submit to you, ladies and gentlemen, they're not. We have people saying, I'm 75 percent sure, and then they come on the stand and they say something totally different.
"As it pertains to Mr. Markson, that same person, I believe who said he was 50 percent sure, comes in now and he's 100 percent sure and can also give us some additional facts. That's not consistent. On top of that, they can't be consistent on things like what kind of gun it is and how many cars there are and what kind of cars there are and what colors they are. That's not consistent. That's not a consistent story. That's not beyond a reasonable doubt. It's not the type of certainty that a case should be brought to court on."
It appears that Markson's attorney was referring to Calloway, who originally told Colmer that he was 50 percent sure that Markson was present at the fight.
2. Analysis
Markson contends that the trial court's ruling excluding the audiotape prevented him from presenting a complete defense, in violation of his due process rights and his Sixth Amendment confrontation right. He argues that the ruling curtailed his ability to impeach Torres and Colmer, and that Torres's credibility was in question because he "claimed he was not promised anything in exchange for his testimony." According to Markson, if the jury had been allowed to hear the audiotape, "it would have noted that Torres's identification of Markson came immediately after Colmer's promise of reduced sentences for Torres' brother and his pregnant girlfriend."
Once Torres denied that Colmer had made a promise to him as an inducement to get him to cooperate, the trial court should have allowed the defense to play the audiotape of Torres's interview for the jury—or at least that portion of the interview that impeached Torres's trial testimony. However, even if we presume that the court erred in denying defense counsel's request to play the audiotape for the jury, we conclude that the exclusion of the audiotape was not prejudicial, even under the more stringent standard applicable to claims of federal constitutional error identified in Chapman v. California (1967) 386 U.S. 18 (Chapman). Under this standard, an error is harmless only if we conclude "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Id. at p. 24.)
First, it is apparent from the record that even Markson's defense attorney did not consider the audiotape of the Torres interview to be a central piece of evidence at trial, and in particular, that she did not consider the interview to constitute important impeachment evidence. None of the defense attorneys sought to admit the taped interview at the time Torres was testifying, and Markson's attorney did not mention that she wanted to use the audiotape to impeach Torres on either of the first two occasions that she raised the issue of playing the audiotape for the jury. In fact, when Markson's attorney finally did mention that she could use the audiotape to impeach Torres, it appears to have been almost as an afterthought, after the trial court had tentatively ruled that it would not admit the tape recording to show a lack of proper admonishment of the witness (which is the purpose for which counsel had proposed to use the tape recording). Further, Markson's counsel did not say that she wanted to use the recording of the interview to impeach Torres by demonstrating that he lied during his trial testimony when he stated that Detective Colmer had not promised him anything. Rather, counsel stated that she wanted the jury to hear Colmer's inducement and how Torres reacted to it.
The audiotape was not the only evidence available to the defense to impeach Torres's trial testimony or to place his credibility in question. By the time counsel raised the issue of playing the audiotape of Torres's interview for the jury, Torres's testimony that he had not been promised anything had already been effectively impeached by Colmer's admission that he had in fact offered Torres leniency for Torres's brother and girlfriend. All of the attorneys thoroughly questioned Colmer about precisely what he had said to Torres and how he was able to persuade Torres to cooperate with him, and repeatedly discussed and quoted the significant portions of the interview transcript, particularly the parts that they viewed as constituting improper inducement. The jury thus was aware of what Colmer had said to Torres to attempt to persuade Torres to make the identifications.
Moreover, Markson is not the only person whom Torres identified from the photographs as a participant in the fight. Torres identified a number of people, and there is nothing in the record, or in Colmer's interview of Torres, that would suggest that Torres had any reason to implicate Markson, as opposed to anyone else. Thus, although the defense was within its rights to suggest that Torres may have made his identifications as a result of an inducement—something the defense was able to do by way of Colmer's extensive testimony about how he tried to persuade Torres to cooperate, the record does not demonstrate that the audiotape of Torres's interview was in any way a "smoking gun" that would have undermined either Torres's or Colmer's trial testimony.
Contrary to the suggestion in Markson's brief, Torres's testimony was not the only incriminating evidence offered against Markson. At a minimum, Torres's identification of Markson was corroborated by Calloway's statements to Colmer, and Calloway's trial testimony, in which he identified Markson as having been present at the fight. There was also a significant amount of evidence presented regarding Markson's involvement with the Edgemont criminal street gang. Finally, when Colmer arrested Markson three days after the fight, Markson had visible injuries to his face. All of this evidence supports the jury's guilty verdicts with respect to Markson.
Markson's attorney had every opportunity to argue that Torres's trial testimony was suspect because he had been untruthful when he denied on the stand that he was promised anything by Colmer. The fact that the audiotape was not played did not prevent Markson from challenging Torres's credibility. Nor did it prevent Markson from challenging Colmer's credibility. The defense attorneys repeatedly questioned Colmer's interview tactics and the method by which he convinced the Sex, Cash, Money victims to identify the rival gang members who initiated and participated in the fight. Counsel confronted Colmer with his own words from the audiotape of his interview with Torres, and Colmer admitted that all of the victims had been unwilling witnesses at first, and that he had used a variety of techniques to persuade them to assist him in his investigation.
In the end, the defense attorneys had abundant evidence with which to challenge both Torres's and Colmer's credibility, and from which they could have argued that Torres had identified Markson simply to obtain beneficial treatment for his brother and girlfriend in an unrelated case. This is not a case in which the judge excluded an audiotape that demonstrated that a detective had promised the witness leniency in exchange for identifying the defendant, and the witness denied having been promised leniency. Rather, in this case, a detective told a victim that he could not promise anything other than that he would talk to the district attorney on behalf of the victim's brother and girlfriend; the detective fully admitted at trial that he made that statement in an attempt to persuade the victim to cooperate; and the victim acknowledged on the stand that he had refused to cooperate with the detective until the detective pointed out that the victim's brother and girlfriend were in trouble and suggested that the victim should be worried about them and needed to "do the right thing." Given these circumstances, and the other evidence implicating Markson in the fight, we are convinced beyond a reasonable doubt that the jury would have reached the same result even if it had heard the audiotape of Colmer's interview of Torres.
E. The admission of Torres's testimony implicating Markson did not violate Markson's due process rights
Markson contends that the trial court violated his due process rights by permitting Detective Colmer to testify that Torres identified Markson as a participant in the fight during his police interview, and by permitting Torres to testify at trial that Markson was involved in the fight. According to Markson, Torres's pretrial identification of Markson, and his subsequent testimony implicating Markson, were the result of coercion at the time of the photographic lineup, and were therefore unreliable and should have been excluded.
The People point out that Markson failed to raise any objection to the admissibility of Torres's pretrial identification or trial testimony. Markson contends that his failure to object does not preclude him from raising the issue on appeal because his claim implicates constitutional concerns and is therefore cognizable on appeal even absent a specific objection in the trial court, pursuant to In re Cameron (1968) 68 Cal.2d 487, 503 (Cameron). The People argue that this court should revisit and reverse the rule announced in Cameron—i.e., that a defendant is not precluded from challenging the admission of a coerced confession. Although the continued vitality of Cameron has been questioned (see People v. Kelly (1992) 1 Cal.4th 495, 519), we decline to disregard its holding in the absence of a clear rejection of its rule by the Supreme Court. In any event, Markson's challenge fails on its merits.
Markson challenges both Torres's initial identification of him as a participant in the fight during Torres's police interview, as well as Torres's trial testimony implicating Markson, which, Markson maintains, followed from Torres's identification of Markson during the police interview. Markson contends that Colmer coerced Torres to identify him during the photographic lineup, and that this coerced identification tainted Torres's trial testimony.
"A defendant may assert a violation of his or her own right to due process of the law and a fair trial based upon third party witness coercion, ... if the defendant can establish that trial evidence was coerced or rendered unreliable by prior coercion and that the admission of this evidence would deprive the defendant of a fair trial. [Citations.]" (People v. Williams (2010) 49 Cal.4th 405, 452-453.) "Although the out-of-court statement itself may be subject to exclusion because coercion rendered it unreliable, it is more difficult for a defendant to establish that the court should exclude the witness's trial testimony." (Id. at p. 453.) " '[T]estimony of third parties that is offered at trial should not be subject to exclusion unless the defendant demonstrates that improper coercion has impaired the reliability of the testimony.' [Citation.] The burden rests upon the defendant to demonstrate how the earlier coercion 'directly impaired the free and voluntary nature of the anticipated testimony in the trial itself' [citations] and impaired the reliability of the trial testimony [citation]." (Ibid.)
Markson contends that Torres's initial identification of him as a participant in the fight was coerced because the police promised leniency for Torres's brother and girlfriend in exchange for Torres's identification of Markson and other suspects in a pretrial photographic lineup. Markson maintains that Colmer's offer to help obtain lenient treatment for Torres's brother and girlfriend constitutes an improper inducement that undermines the reliability of both Torres's pretrial identifications and his trial testimony. However, there is no authority for the proposition "that an offer of leniency in return for cooperation with the police renders a third party statement involuntary or eventual trial testimony coerced." (People v. Badgett (1995) 10 Cal.4th 330, 354.) " 'There is nothing improper in confronting a suspect with the predicament he is in, or with an offer to refrain from prosecuting the suspect if he will cooperate with the police investigation.' [Citations.]" (Id. at p. 355.) It follows that the fact that Colmer may have offered leniency to third parties is insufficient to support the conclusion that Torres was coerced into naming Markson as one of the offenders, or that his statements in this regard were so unreliable that he should have been precluded from testifying to this effect at trial.
F. There is substantial evidence to support Markson's convictions for assault
Markson contends that his convictions for assaulting Torres and Davis are not supported by substantial evidence. Specifically, Markson argues that there was insufficient evidence to establish either that he was directly liable for the assault on Torres and Davis, or that he conspired with his fellow gang members to assault Torres and Davis.
In his reply brief, Markson essentially acknowledges that there is sufficient evidence to support his convictions for assaulting Torres and Davis under an aiding and abetting theory, and that this means that reversal of his convictions is not required. He clarifies that his contention is that if his convictions are reversed on other grounds, the "the prosecution should be barred from including the conspiracy theory in the event of retrial." Because we are not reversing Markson's convictions on other grounds, there will be no retrial. Consequently, there is no need to consider this claim.
G. Defendants were properly sentenced for street terrorism under section 654
Defendants contend that the trial court should have stayed execution of punishment on count 10 pursuant to section 654, because the conduct underlying that offense is the same conduct underlying the assault counts of which they were convicted.
Markson and Greer each set forth this argument in their briefing, and Tolbert joined in the argument.
In sentencing Markson and Greer, the trial court imposed a three-year term for the assault on Davis, plus a three-year enhancement for the gang allegation, and a one-year term for the assault on Torres, plus a one-year enhancement for the gang allegation. In addition, the trial court imposed a consecutive eight-month term for the substantive criminal street gang offense.
The trial court sentenced Tolbert to four separate terms for the gang enhancements that the jury found to be true, and ordered all except the enhancement related to count 4 to run concurrently with the sentence imposed on count 4. As to the gang enhancement related to count 4, the court imposed a term of 10 years. The court also sentenced Tolbert to a concurrent two-year term for the criminal street gang offense.
Markson and Greer argue that the trial court should have stayed execution of the eight-month term for the criminal street gang offense because they had the same gang-related objective in carrying out the assaults against Torres and Davis as they did in committing the offense of actively participating in a criminal street gang—i.e. to further the interests of their gang. We assume that Tolbert's challenge to the trial court's failure to stay execution of his two-year term for the criminal street gang offense is based on the contention that he had the same gang-related objective in carrying out the substantive offenses of which he was convicted as he did in committing the offense of actively participating in a criminal street gang.
Because Tolbert did not separately set forth analysis of this issue as it relates to his sentence, we must assume that this would be the challenge that he intends to raise.
Section 186.22, subdivision (a), provides, "(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." The offense thus requires as one of its elements the intentional commission of an underlying offense.
Whether section 654 precludes multiple punishment for active participation in a criminal gang and for the underlying offense has not been clearly established in California. However, we see no reason for a blanket rule that would require the application of section 654 to preclude punishment for a violation of section 186.22, subdivision (a) any time a defendant is convicted of both the substantive crime of active participation in a criminal street gang and the underlying crime, even where the jury finds that the underlying crime was committed for the benefit of the gang. Rather, we apply the general rule that applies in situations involving section 654—i.e., we consider whether there is substantial evidence to support the trial court's implicit factual determination that the defendants had independent, but simultaneous, objectives in committing the two offenses. (See People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 ["The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them."].) In some cases, there may be evidence that the defendant had independent objectives in carrying out an underlying substantive offense and in actively participating in a criminal street gang; in other cases, the evidence may not support such a finding. In our view, there is no reason to circumscribe the trial court's ability to consider the evidence and make a determination under the particular circumstances of a particular case that the defendant either did or did not have independent objectives where the defendant has been convicted of both actively participating in a criminal street gang and an underlying offense.
In this case, the evidence supports the trial court's implicit conclusion that these defendants harbored independent objectives in committing the assaults (and/or in committing the attempted murders, in Tolbert's case) and in actively participating in their criminal street gang. There was evidence that all of the defendants participated in the physical fight, which indicates that their objective was to assault the victims. There was also abundant gang-related evidence that demonstrated that the attack by the Edgemont members in an area that is only a block away from what is considered to be Sex, Cash, Money territory, was a gang "mission." Colmer testified that there was a long-standing "war" between Edgemont and Sex, Cash, Money fueled by "numerous homicides and attempted homicides" for which both gangs sought retribution. According to Colmer, members of the gangs will fight each other on sight in order to be able to brag about gaining an advantage over the other gang. All of the gang-related evidence supports the conclusion that these defendants had the objective not only of assaulting the victims, but also of promoting the Edgemont gang, at the time they participated in this violent incident.
A "mission" is a gang term for "going to do some dirt against [one's] rivals, " such as a "drive-by shooting or... some other type of violence against the rivals."
G. The trial court did not err in denying Greer's motion to disclose Colmer's personnel file
Greer requests that this court review the records presented at the in camera Pitchess review proceeding to independently determine whether the trial court was correct in denying his motion to disclose the personnel records of Detective Colmer. The People do not oppose this court reviewing the sealed transcript and personnel records relating to the trial court's in camera hearing.
The record on appeal did not contain copies of the records that the trial court reviewed. This court requested the personnel files from the trial court, and received scanned copies of all of the documents on October 20, 2010. We hereby augment the record on our own motion, and order that the documents are to remain sealed. (See California Rules of Court, rule 8.340, subd. (c).)
"[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ' "materiality" ' to the subject matter of the pending litigation and a 'reasonable belief' that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.]" (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).)
"If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation." ' [Citations.]" (Gaines, supra, 46 Cal.4th at p. 179.)
The trial court reviewed the requested records in camera and determined that they contain no information relevant to the subject matter of Greer's case. We have independently reviewed the personnel records that the trial court considered. Our review confirms the trial court's determination that the confidential personnel records do not contain any relevant, material information. The trial court thus properly declined to disclose any items from Detective Colmer's confidential personnel records.
IV.
DISPOSITION
The jury's true findings with respect to the enhancements for personal infliction of great bodily injury on counts 5 and 6 as to Tolbert are reversed. The trial court is directed to prepare a new abstract of judgment for Tolbert in which the court shall:
(1) vacate the four-year term for the personal use of a firearm enhancement related to count 4;
(2) strike the section 12022.7, subdivision (a) enhancements on counts 5 and 6; and
(3) stay execution of sentence on counts 4, 5 and 6, pursuant to section 654.
The trial court is directed to forward a copy of Tolbert's amended abstract of judgment to the Department of Corrections and Rehabilitation. Tolbert's judgment is otherwise affirmed.
The judgments as to Greer and Markson are affirmed.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.